Mr C Townshend, SC (28 June) and Mr T Pikusa of counsel (24 May & 28 June) instructed by Marshalls & Dent lawyers.

• Mr L Elliott, town planner of Urbis (24 May);
• Ms D Donald, traffic engineer of O'Brien Traffic (24 May & 28 June);
• Mr M Negri, town planner of Contour Consultants (28 June); and
• Mr P Lovell, heritage consultant of Lovell Chen (28 June).

Ms S Porritt of counsel (28 June) instructed by Melbourne City Council and Mr C Perrott, senior planning officer (24 May & 28 June)

The land is on the south side of Batman Street, between King and Spencer Streets in West Melbourne. It has a frontage of 30.35m, a depth of about 50m and a total area of approximately 1,520sqm.

The former industrial building has largely being demolished except for the front heritage façade and basement/ground level construction has commenced for a residential tower.

Modifications to the external appearance, materials and finishes of the residential tower;

Modifications to the extent of retention of the former industrial building;

An increase in the parapet height of the tower by 2.3m;

A reduction in the third level street setback of the tower;

An increase in the number of apartments including two new levels of apartments because of the reduced car parking;

Changes to the car parking layout and access arrangements, including car lifts;

Modifications to the arrangement of apartments on each floor level and reduced balcony sizes;

Changing the mezzanine residential apartment to an office; and

Section 87A Planning and Environment Act 1987

Cl 32.04-1 & 32.04-7 To use land as an office and undertake associated buildings and works in MUZ (new permission as part of these proposed amendments);

Cl 32.04-5 To construct two or more dwellings on a lot in MUZ;

Cl 43.01-1 To demolish a building, construct a building and construct or carry out works in HO770;

Cl 43.02-2 Buildings and works not in accordance with the 6 metre podium setback requirements and the 40 metre height limit (new permission as part of these amendments) requirements set out in DDO33;

Jopsal Pty Ltd v Melbourne CC [2009] VCAT 2534 ('the previous decision')

1. A planning permit[1] was issued at the direction of the Tribunal in 2009 allowing the demolition of the majority of a former industrial building and the construction of a tower at 33-43 Batman Street, West Melbourne. The permit allowed the development of residential apartments in the tower and the mezzanine section of the existing building to be retained; the use of a cafe with the sale and consumption of liquor on the ground floor; and the provision of four levels (including a basement level) of car parking accessed via a ramp system.
2. This application seeks to amend this permit by, amongst other changes, removing the café; increasing the number of apartments and reducing the car parking by replacing two car parking levels with two levels of residential apartments. However, before turning to our consideration of the merits of these changes, it is relevant to understand the background that has led to these proposed amendments.

1. In the previous decision of the Tribunal in November 2009, Member Naylor approved a 40 metre high tower behind the front 8.5 metres of the former industrial building on the land, which has heritage significance. The approved development included:
   • Parking for 112 cars over four levels at basement, ground, first and second floor levels;
   • A caretaker's apartment with the first floor mezzanine level of the existing building to be retained;
   • A café with 20 seats on the ground floor; and
   • 135 residential apartments of 50-65 square metres containing 1 or 2 bedrooms, with 28 of the apartments having no car parking.
2. This development encompasses demolition of all but the front façade and a section of the front of the former industrial building. The new tower features predominantly glass on three sides (including a front glass curtain wall) and a rear sculptured concrete façade. The permit issued at the direction of the Tribunal included a condition requiring the rear façade to contain more glazing.

1. The Council issued the permit on 7 December 2009. In April 2010, the applicant for this amendment to the permit purchased the property. In November 2010, the applicant lodged an application with the Tribunal under section 89. In January 2011, at a practice day hearing, this application was amended to refer to section 87A, and the proposed amended plans were also substituted with a direction that notice be given to surrounding properties.
2. In the meantime, the Council endorsed a different set of amended plans in accordance with condition 1 of the permit[2] on 18 February 2011. These plans include 110 car spaces and 137 apartments (based on our calculations of the copies of the plans provided to us). On Day 1 of this hearing, Mr Perrott acknowledged these plans included changes to what was approved by the Tribunal and stated these changes were approved at the same time pursuant to the 'secondary consent' condition in the permit. In response to our questions about some of these changes, he orally stated:
   • The front elevation was approved because it is generally in accordance with the Tribunal's decision because it is largely glazed;
   • He cannot deny the side elevations are different to the VCAT plans, and acknowledged the patterning has changed but submitted the intent is similar;
   • The car parking levels have been changed to incorporate car lifts rather than ramps; and
   • The internal layout has been reconfigured but that did not generate any off-site impacts.
3. We note another change in these endorsed plans included five apartments on the west side of level 2[3].

1. On 25 February 2011, the Council amended the endorsed plans by secondary consent to allow for the demolition and reconstruction of the eastern boundary wall of the former industrial building. Mr Perrott explained in his submission on Day 1 of this hearing that this was required due to the structural instability of the east wall and concern that it may collapse during construction works.

'Day 1' of the Tribunal Hearing for this Application

1. On Day 1 of this hearing (before Members Naylor and Chase), the parties advised that demolition of the former industrial building and the construction of the approved basement was underway.
2. In regard to the merits of the amendments, the Council, Mr Pikusa and his expert witnesses (Mr Elliot and Ms Donald) stated that the starting point for consideration of the proposed amendments should be the plans endorsed by the Council. Mr Perrott described the Council endorsed plans as containing 108 car spaces and 137 apartments. We note there is a discrepancy between our calculation and Mr Perrott's submission. Nothing turns on this, and so we have decided to refer to the 108 car spaces we have calculated in the remainder of these reasons. Mr Pikusa submitted it is not necessary to look behind these endorsed plans, and if we had any concerns about what the Council has approved via secondary consent, he would like a further opportunity to respond to this.
3. At the end of the hearing on Day 1, Members Naylor and Chase advised that, having regard to the submissions and evidence presented, they were uncertain as to whether they should have regard to the endorsed plans. The Members thought there was a question as to whether the plans have been lawfully approved by the Council pursuant to conditions 1 and 2 of the permit having regard to the extent of the changes compared to what the Tribunal had approved. Accordingly, the Members decided to reconstitute the Tribunal with a presidential member of the Tribunal to consider and, if appropriate, to make any declarations under section 124 of the Victorian Civil and Administrative Tribunal Act 1998 about the lawfulness of the endorsed plans.

1. An urgent directions hearing then took place on 1 June 2011 with the reconstituted Tribunal (Deputy President Gibson and Members Naylor and Chase)[4]. Mr Townshend and Ms Porritt submitted that the issue of the endorsed plans should be put to one side whilst the merits of a new set of amended plans were considered by the Tribunal. These amended plans contain all of the amendments made since the previous decision of Tribunal, being those changes included in the Council endorsed plans and the further changes now sought. The Tribunal substituted these amended plans (referred to by the parties as 'the May plans') in its order of 2 June 2011.

The Subsequent Tribunal Hearing (Day 2) on the Merits of this Application

1. On Day 2 of the hearing about the merits of the May plans (the amended plans), the reconstituted Tribunal heard submissions and expert evidence called by the Applicant from Mr Negri, Mr Lovell and Ms Donald.
2. During this hearing, the Council expressed the view that there was no longer an issue about the Council endorsed plans as any amended plans directed to be endorsed by the Tribunal as a result of the Day 2 hearing would effectively replace these plans. This is correct. However, we stated in the hearing that it is of concern to the Tribunal that the Council, acting in its role as a Responsible Authority, authorised through the endorsement of the plans a number of changes that, in our preliminary opinion, are not generally in accordance with the previous decision of the Tribunal.
3. We have not considered this matter further at this stage. We are concerned to regularise the permit and plans endorsed under it because the applicant has now commenced construction based on the Council endorsed plans and needs some certainty as to how it can proceed.
4. It is relevant to note that the previous decision of the Tribunal allowed four levels of car parking containing 112 car spaces accessed via a ramp system and 135 apartments. The Council endorsed plans contemplate four levels of car parking with the provision of 108 car spaces accessed via two car lifts; 137 apartments configured differently to the original layout; and significantly different façade treatments. The additional changes, which originally triggered this application to amend the permit, include a reduction in car spaces to 53 spaces over two levels (i.e. a reduction in car parking levels from four to two) and an increase in the number of apartments from 137 to 155.

1. Section 87A allows a permit holder to request the Tribunal to amend a permit issued at its direction, and the Tribunal may amend the permit "if it considers it appropriate to do so". The nature of the amendments can be 'clarifying' amendments or more substantive amendments to facilitate a reasonable change in the development or use permitted.
2. The process under section 87A is not, strictly speaking, a 'repeat appeal' of the review process through which the permit was granted in the first instance. This section invests the Tribunal with separate original jurisdiction to consider an amendment to a permit issued at its direction, and it is a wide discretion. Hence, the principles that the Tribunal and its predecessors have previously set down for repeat appeals do not necessarily apply. Nevertheless, we agree with the findings of the Tribunal in The King David School v Stonnington CC[5] that a degree of caution should be exercised in making substantive changes to key permit conditions upon which an original Tribunal decision was predicated[6].
3. This means that the amendments before us should be assessed on their own merits. We agree with Mr Townshend's submission that the exercise of our discretion must not become a 'beauty contest' between the Elenberg Fraser plans considered in the previous decision by the Tribunal and the proposal now before us (the amended plans). We also agree with Mr Townshend that the focus of planning decision-making generally is about achieving acceptable outcomes rather than best or better outcomes. Accordingly, our consideration of the amended plans is a consideration of the particular merits of those plans.

1. The site is located within a small heritage precinct (H0770) containing about four properties in Batman Street and 1 to 2 properties in Jeffcott Street. This site contains the highest graded building in the H0770 precinct, as it is graded B. This former industrial building was a large factory with a sophisticated face brickwork modern facade and the B grading of the building is primarily because of its front facade treatment. Having regard to the heritage considerations, the permit issued allows:
   • the retention of the front section of the heritage building to a depth of 8.56 metres and its eastern flanking wall with a sawtooth profile;
   • the demolition of the balance of the building; and
   • the construction of the new residential tower.

1. The amended plans include the demolition of part of the east wall of the former industrial building that was intended to be retained (an amendment that was approved by the Council pursuant to a secondary consent). In the east wall was a foundry sawtooth wall with sections of the trusses and Mr Lovell explained the amended plans propose to build a matching facsimile wall in precast concrete. In Mr Lovell's opinion, the impact of this change is minimal from a heritage perspective. We are persuaded by his evidence, which states:

While the approved scheme retained the east wall, providing an ability for an observer in the street to understand the form and depth of the earlier building, it did so recognising that the view was fortuitous, resulting from the placement of a driveway to the east. Should the east side property redeveloped in the future that might well disappear. As such, retention of the wall was a preferred outcome from a heritage perspective but not one which was critical in balancing the impacts of new development.

1. Mr Lovell also stated the trusses themselves are not of particular rarity or significance, and their deletion from the project will have no adverse heritage impact. We accept his evidence, and find this amendment to the permit is appropriate.

1. During Day 2 of the hearing, we raised a question about the appropriateness of including the original roller door in the design, particularly given the combined design of the proposed access and waste collection areas. We acknowledge the requirement to incorporate the original roller door was imposed as part of the previous decision of the Tribunal. During that hearing, Ms Gould gave heritage evidence for the Council stating that she wanted it retained. At that time, Mr Lovell acknowledged its retention was desirable, but not necessary. He suggested it could remain in place in an 'up' position in perpetuity, which had been a common occurrence with its former industrial use for much of each day.
2. The amended plans now contain a combined accessway into the car park and the waste room with a security roller shutter door set at a 90° angle from the front facade, well back from the front facade and behind a substation. We expressed concern on Day 2 of the hearing about the security of this area given the original roller door is likely to remain open for much of the time[7].
3. On Day 2, Mr Lovell gave evidence the roller door is not intrinsic to the heritage value of the building, and he expressed the view that a new roller door could be incorporated into the current location of the original roller door. There was discussion during the hearing as to whether there should be a roller door set back from the street frontage with either a shallow or a deeper setback. Mr Lovell stated a like for like replacement would be the preferred outcome.
4. Our consideration is to balance the heritage benefits of retaining the original roller door with the benefits of providing safe and secure access to the site. We are persuaded by Mr Lovell's evidence that the original roller door is not intrinsic to the heritage value of the building. On this basis, we consider it is preferable to avoid creating an open space accessible from the street by members of the public that could be a security risk. Hence, we have required a new roller door in the current location of the original roller door as a condition on the amended permit issued.

1. In the Elenberg Fraser plans considered as part of the previous decision, the Level 2 plan described the front section of the existing building to be retained as "existing roof to be retained". We asked Mr Lovell to comment on Day 2 of the hearing about the description contained in the amended plans (on the Second Floor plan) that states "new roofing over existing roof trusses". Mr Lovell said the new roof should match the existing roof and can be supported as needed, but he clearly stated it is important the roof is reinstated as a corrugated iron roof with the correct pitch. We therefore have included this as a detail to be shown on the plans as a condition on the amended permit.

1. The amended plans have changed the exterior appearance of the tower on all four sides. This is due, in part, to the fact that the previous decision of the Tribunal related to a tower that had apartments oriented to the east and west sides; whereas the amended plans now contain apartments that are oriented to all four sides of the tower. This change, of itself, is acceptable. We note Mr and Mrs Senyard expressed concern that there are now apartments oriented to the rear, which includes towards their dwelling. We acknowledge this change but do not find it unacceptable as there is a reasonable separation between the proposed tower and Mr and Mrs Senyard's dwelling. This separation provides for the maintenance of a reasonable level of amenity to Mr and Mrs Senyard's dwelling.

1. Mrs Senyard pointed out the tower is now 2.3 metres higher and this has a shadow impact upon her dwelling at times other than the Equinox, hence she opposes the additional height.

1. We are persuaded by Mr Negri's evidence that the minor difference between the parapet height of the original building (40m) and the now proposed building (42.3m) is of little consequence having regard to the design objectives, built form outcomes and decision guidelines of Design and Development Overlay Schedule 33. Mr Negri pointed out another apartment building has recently been approved at 49-53 Batman Street that has a height of approximately 43.7 metres. He stated this approval also provide support for this tower to be constructed at the height now proposed.

1. Mr Negri acknowledged there is a shadow impact upon Ms Senyard's dwelling, particularly at 1.00pm and 2.00pm. This issue was also raised by the Senyards in the previous decision of the Tribunal, as they had particular concern about the shadow impact upon their rear first floor living room and internal courtyard. Mr Negri pointed out the assessment of shadow impact in the planning scheme relates to private open space rather than the internal rooms of the dwelling. Ms Senyard's dwelling has a courtyard that is centrally located (i.e. other rooms of her dwelling generally surround it), and Mr Negri's opinion is that the open space is already affected by shadow from the walls and roof that surrounds it. Despite overshadowing not been a specific consideration for a living room, Mr Negri also expressed the opinion that shadow of the approved tower already affects the living room, and the proposed amendments will continue to affect the living room. We find these impacts are reasonable given the planning controls that apply and the extent of existing shadow impact.

1. The appropriateness of the external materials and finishes of the tower needs to be considered having regard to the heritage significance of the site and the Design and Development Overlay, as well as State and local planning policies that seek to achieve good design outcomes. In the previous decision of the Tribunal, the glass facades of the tower were found to be modern, interesting and appropriate to this context. The design was described by the Tribunal as "simple but effective", and the architectural merit was one of the reasons why the Tribunal found the proposal worthy of approval. Indeed, the detail of the design was something the Tribunal felt should be carried through into the rear elevation, and hence a condition was imposed requiring modifications to the rear elevation to include more glazing.
2. The amended plans before us include modifications to the external colours, materials and finishes. This includes the replacement of the glass curtain wall on the front facade. Mr Negri stated the architectural expression now proposed relates differently to the existing heritage building and the streetscape of Batman Street than the original proposal considered by the Tribunal. We agree with Mr Townshend that consideration of the appropriateness of the amended plans must not become a beauty contest between the original Elenberg Fraser plans and the amended BHA plans.
3. Mr Lovell stated that, from a heritage perspective, the issue is the appropriateness of the replacement structure and the degree to which it impacts on the retained fabric of the former industrial building and the larger heritage place (the heritage precinct). He stated that the amended materials and finishes "are changes which result in a more conventional built form outcome which in many respects mirrors, and has been accepted in the western and northern fringes of the central city area". We accept Mr Lovell's evidence that:

The amendments proposed to this development are changes which simplify the scheme and change the presentation of the new tower. They are not changes which alter the proposed existing facade retention or its setback. While resulting in a less individually distinctive structure the changes will have no adverse heritage impact.

1. Mr Negri has recommended changes to the external expression of the building to provide a more interesting presentation to the street. He explained that his recommendations "pick up on some of the design cues in the originally proposed building". The changes include:
   • setting back the 2nd and 3rd levels of the building from the Batman Street frontage to create a sense of a tower floating above the retained building when viewed from the north side of Batman Street;
   • glazing the entire northern facade of the tower to produce a clean presentation to the street;
   • the provision of balcony space to provide interest and a uniform pattern in the northern facade;
   • removal of the red framing around central elements of the north facade; and
   • removal of the graded paint colour from the base of the tower to the parapet in favour of cleaner grey and black tones to provide distinction from the retained heritage building and to better relate to the original proposed external colour scheme.
2. Mr Lovell stated these refinements draw the proposal closer to the approved scheme and will have no adverse heritage impact. We agree with Mr Negri's recommended changes, but note that there is limited information contained in the amended plans about the details of the materials and finishes, particularly relating to Mr Negri's changes. Mr Negri expressed an expectation that there would be a mid grey colour to the painted concrete panels despite the variation shown in the elevations and montages[8]. He acknowledged it is unclear from the elevations and montages as to whether the balconies contain clear or dark glass. He stated the front elevation appears to have dark glass, but he was not sure. Given this, Mr Negri stated it is important that a schedule of the colours, materials and finishes are provided. We agree with this and have required this in the modified conditions of the amended permit.

1. We have no concern with the removal of the ground floor café. The amended plans include a mezzanine office in the retained section of the former industrial building. This was not mentioned in the Applicant's submissions or expert evidence. Mr Perrott described it in his written submission on Day 1 of the hearing as "a building manager's office", but it is described on the amended plans as "office". We have no concern with the use of this part of the site as an office given its Mixed Use zoning, but it does have car parking implications that we will discuss shortly.

1. Mr Ballard expressed concern about the potential noise generated by the collection of waste from the site. On Day 1 of the hearing, Mr Perrott submitted collection vehicles will be required to reverse into the building to collect the bins; and we consider it is likely the roller door will be up whilst collection is occurring. There are no permit conditions requiring a waste management plan or limiting waste collection hours. Mr Townshend advised the applicant consents to a condition limiting waste collection to between 7.00am and 6.00pm on weekdays and between 9.00am and 6.00pm on weekends. Ms Donald gave evidence on Day 1 of this hearing that, as the garbage collection area is in the front single width entry to the resident car park, it would be preferable to avoid conflict with the peak movement times of 7.30-9.00am and 4.00-7.00pm. We consider a condition limiting the hours of waste collection should be imposed on the amended permit.

1. The planning scheme requires the provision of two car spaces per apartment for this development, which equates to 310 car spaces[9]. The permit currently requires parking for 112 cars on four levels; and 108 spaces over four levels are reflected in the Council endorsed plans. The site lies outside the parking limitation policy area in the planning scheme, which has a requirement for a maximum of one car space per dwelling[10]. The amended plans seek a reduction in the provision of car parking for the development to allow 53 car spaces to be provided for 155 apartments (0.34 car spaces per apartment). The applicant relied upon the expert evidence of Ms Donald on both Days 1 and 2 of this hearing to support this reduction.

1. Ms Donald stated the planning scheme car parking requirement "is clearly excessive given the size of the apartments, the location of the development in relation to the CBD and public transport, and the desire of the City of Melbourne to reduce reliance on cars as a means of travel". In general terms, we agree with Ms Donald, and so did the previous decision of the Tribunal as the visitor car parking was waived and the residential car parking was reduced so that some apartments did not have car spaces.
2. The amended plans have not changed the size of the apartments and Ms Donald acknowledged that nothing about this area of West Melbourne is "fundamentally different" since the previous decision of the Tribunal. So, the question for us is what is an appropriate provision of car parking in this case?
3. Clause 52.06 sets out a number of matters that can be considered in determining whether to grant permits to reduce or waive the number of car spaces. The planning scheme states:

Before a requirement for car spaces is reduced or waived, the applicant must satisfy the responsible authority that the reduced provision is justified due to:

• Any relevant parking precinct plan.
• The availability of car parking in the locality.
• The availability of public transport in the locality.
• Any reduction in car parking demand due to the sharing of car spaces by multiple uses, either because of variation of car parking demand over time or because of efficiencies gained from the consolidation of shared car parking spaces.
• Any car parking deficiency or surplus associated with the existing use of the land.
• Any credit which should be allowed for a car parking demand deemed to have been provided in association with a use which existed before the change of parking requirement.
• Local traffic management.
• Local amenity including pedestrian amenity.
• An empirical assessment of car parking demand.
• Any other relevant consideration.

1. To address these criteria, Ms Donald's evidence statement of May 2011 relies upon an "empirical assessment" of car parking demand.

1. An empirical assessment is a tool often used by traffic engineers to ascertain what is likely to be the demand for car parking for a particular use in a particular area. It may include a review of ABS census data; other data collected by an appropriate organisation, authority or municipality; or surveys undertaken by a traffic engineering firm or firms of similar types of developments and uses in comparable areas.
2. In this case, Ms Donald's empirical assessment contains a number of statements such as:
   • I consider it will attract primarily residents who work or study in this area;
   • I consider many residents will not own cars due to the relatively small size of the apartments and the location of the site;
   • I have assumed on street restrictions will not be relaxed and residents will not be eligible for a resident parking permit which means the development will be unsuitable for residents who do not have a car space; and
   • In my opinion, car parking provision of 0.35 spaces per apartment will cater for those residents who do own cars.
3. None of these statements or her other evidence provide any of the empirical assessment material, which we referred to earlier, that would generally be expected to support a planning application to reduce or waive car parking.
4. This evidence is disappointing and it is not the first time the Tribunal has had to comment on the adequacy of traffic engineering evidence in recent times[11]. As the extract from the planning scheme states, the applicant must satisfy the responsible authority (and, upon review, the Tribunal) that a reduced parking provision is justified and it is of some concern to us that traffic engineering evidence may be becoming complacent about the need to justify such reductions.

1. Ms Donald's evidence also relies upon schedule 2 in clause 52.06, which was introduced since the previous decision of the Tribunal. The schedule applies to some inner areas close to the CBD and requires planning permission to provide car parking spaces in excess of one car space per dwelling. Ms Donald stated the schedule requires "no parking provision" and the area it covers, which is located approximately 125 metres east of the site, is "a negligible distance from this site"[12].
2. On Day 1 of the hearing, Ms Gee acknowledged two car spaces per dwelling "may be a bit over the top" and suggested one car space per dwelling may be more reasonable for one and two bedroom apartments. She pointed out a decision was made not to extend schedule 2 into this specific area of West Melbourne and Flagstaff train station is closed on the weekends. She submitted these are therefore reasons not to allow the reduction in car parking sought.
3. On Day 2 of the hearing, Ms Donald acknowledged that this site is just outside the schedule 2 area and stated she is unaware of any particular reason why that is the case. Ms Donald stated the car parking rate contained in schedule 2 has been applied to developments outside of the schedule area and that there is nothing about this area that makes it fundamentally different. On face value, there would appear to be some merit in Ms Donald's opinion, but the problem we face is the lack of empirical analysis to support this opinion.
4. On Day 2 of the hearing, Ms Donald referred to a development recently approved by the Tribunal at 49-53 Batman Street that contains no car parking. However, we are not persuaded that this development is comparable with this proposal. The apartments in 49-53 Batman Street are much smaller and the majority of them are what we would describe as 'bedsits'.
5. Like Ms Gee, we find a requirement for two car spaces per apartment is excessive. We agree the proximity of this site to the CBD 'points to' a reduction in car parking. However, we are not persuaded by Ms Donald's evidence that an appropriate car parking provision is 0.34 car spaces per apartment.

1. During the hearing, we were provided with two other pieces of information that are relevant to our consideration of a reduction in car parking. The first is an affidavit by Philip Zajac, a director of EAH Batman Pty Ltd dated 1 June 2011. It states, in part, that a joint venture formed by a Hong Kong company and local company has been appointed by EAH Batman Pty Ltd to market the apartments. It further states:

I understand that as at the date of this affidavit:

1. The first observation we make about this affidavit is that it appears Mr Zajac has received advice about the sales rather than having direct knowledge and involvement in the sales. The second observation is that the majority of the apartments have been sold internationally. Given the current regulations that allow for foreign investment, there is nothing unusual about this. However, there remains a question in our mind as to whether the rate of international ownership of apartments provides any meaningful support for a reduction in car parking provision. Planning controls and planning policy are concerned with the provision of car parking for residents. For example, tenants of this development could be 'local' and own a car. This piece of information may have been of greater assistance to us if we had been provided with a comprehensive empirical analysis and these two pieces of information complemented each other.

1. The second piece of information relevant to our consideration of a reduction in car parking is the Council's internal traffic engineering referral comments. Ms Porritt tabled this at the end of the hearing on Day 2, which was unhelpful as, amongst other reasons, its content was not known to the Tribunal when Ms Donald gave her evidence and was subject to cross-examination[13].
2. The internal referral is nine pages long and it appears much of it was prepared by Cardno Grogan Richards on behalf of the Council. This fact is relevant as Mr Jason Walsh of Cardno Grogan Richards gave evidence supporting the car parking provision, traffic generation and access arrangements as part of the previous decision by the Tribunal.
3. On the first page of the internal comments it states (with our emphasis):

No traffic report has been provided within the latest amendments to the plants, and therefore the following provides an assessment based on conventional residential apartments and discussion with regard to the previous proposal.

1. In regard to car parking requirements, pages 3 and 4 of the internal comments outline the requirements of clause 52.06, clause 55.03, the existing permit, 2006 ABS data, visitor parking and the proposed car parking provision.
2. In regard to clause 52.06, the internal comments acknowledge the standard car parking required would be 310 spaces; but it also notes the proposed office floor space has an area of approximately 77m², with a statutory requirement to provide three car spaces[14]. This is not mentioned in either Ms Donald's evidence or the submissions on behalf of the Applicant. The internal comments go on to recommend the provision of one car space for this office. In the previous decision of the Tribunal, it was proposed to provide one car space for the café staff and 111 for the residential apartments. Given the office effectively replaces the cafe, the office floor area is very small, and the Mixed Use zoning of the land, we are satisfied a reduction in the office car parking provision from three to one car space is justified.
3. The internal comments then refer to clause 55 that requires one car space for a one or two-bedroom apartment and 0.2 of a visitor car space per apartment, which equates to a requirement for 155 residents spaces and 31 visitor spaces. The internal comments refer to the 2006 ABS data "within Melbourne" for 'flat, unit or apartment' that indicates 59% and 38% of tenants in one and two bed apartments respectively do not own cars. This means the amended plans could generate a demand for around 75 residential car spaces.
4. The internal comments then state the provision of one car space for each two-bedroom apartment with the remaining two spaces allocated to one of the one-bedroom plus study apartments and the office is "generally in accordance with the VCAT determination for the residential apartments". It is unclear to us how a car parking requirement of 155 car spaces or 'demand' for 75 residential spaces has suddenly transformed into the current proposal for 53 spaces (including 52 residential spaces) and how this is acceptable.
5. At this point, it must be remembered that this is not a new permit application, but rather an amendment to an existing permit. Hence, we think it would be helpful to outline the residential car parking provision that has been approved for this permit, and what is now being sought.

1. The previous decision of the Tribunal explained the proposal provided one car space for the cafe, 111 car spaces for the residential apartments (which meant 28 apartments would not have a car space), and no on-site visitor car parking. Mr Walsh of Cardno Grogan Richards provided expert evidence in that case for the Applicant, and his expert witness report (dated 3 August 2009) relied upon the proximity of the site to the Capital City Zone (250 metres) and the same empirical analysis that is contained in the current internal referral comments, specifically the ABS 2006 Census data of car ownership in flats in the municipality of Melbourne. Mr Walsh stated on page 7 of his expert report:

The ABS data and Council Policy support the provision of a lesser car parking provision. Based on the above, I am of the view that the provision of 111 car spaces for the apartments will be sufficient.

1. Given Mr Walsh's evidence, we have some difficulty relying upon the internal comments prepared by Cardno Grogan Richards supporting 52 residential car spaces as these comments are based on the same empirical analysis as that of Mr Walsh in the previous decision of the Tribunal. We also note that the support in the internal comments for 52 residential car spaces was not unconditional. Rather, this support was reliant upon a permit condition stating that no on-street parking permits will be issued to residents of the development. We indicated during Day 2 of the hearing that such a condition would not be acceptable to the Tribunal.

1. Ms Gee raised an interesting point when she highlighted that this area of West Melbourne had been specifically excluded from schedule 2 to clause 52.06. This schedule did not exist when the Tribunal determined to grant a permit in the previous decision. Ms Donald was unaware of any reasons why West Melbourne was excluded and the Council made no submissions about this. We have reviewed the panel report for Amendment C133, which introduced the schedule, in order to inform ourselves as to why this area of West Melbourne was not included in schedule 2.
2. Section 4 of this report explains the Council engaged Ratio Consultants in April 2008 to undertake a study of the car parking provision of new residential developments outside the Capital City Zone to determine and, if appropriate, justify a lower rate of parking for residential development (amongst other objectives). Section 5.3 of this report acknowledged a large area of West Melbourne was not included in the amendment. This area was included in the Ratio study but was found not to be suitable because of the higher car ownership rates in the area, lack of tram network (reliance on train network only), and because residents are permitted two on-street parking permits. Page 15 of the panel report quotes the Ratio study:

Table 1 shows household car ownership rates, dwellings of various sizes, in the "target areas". This indicates that all dwelling sizes in East Melbourne, and most dwelling sizes in West Melbourne, had a higher than average ownership rates. This was interpreted as indicating a higher than average need for private car accessibility, so the maximum parking provision was only considered appropriate for some parts of these suburbs, specifically those parts with best public transport, supermarkets and car share accessibility. This led to the exclusion of the more remote parts of East and West Melbourne.

1. What this information demonstrates to us is that it was a deliberate decision to exclude this area of West Melbourne from the parking limitation area. It also illustrates that car ownership rates in this area of West Melbourne are different to the City of Melbourne average in the above table and the 2006 ABS census data for the municipality of Melbourne relied upon by the Council and Ms Donald.

1. It was submitted to us during the hearing that the Council is keen to waive car parking. However, a reduction or waiver of car parking needs to be justified having regard to the range of criteria contained in clause 52.06. Neither the Council nor the Applicant has justified the proposed reduction before us.
2. There was reference made during the hearing to Council policy support for reduced provision of car parking. On Day 2 of the hearing, we were not provided with any further detail on this, hence we have subsequently reviewed the local planning policy framework of the Melbourne Planning Scheme to, again, inform ourselves. We note the Municipal Strategic Statement ('the MSS') has an objective[15] to increase the patronage of public transport with 10 strategies to achieve this objective, including:

Encourage limited supply of car parking in new developments where access to public transport is excellent.

1. Having regard to Ms Donald's evidence and the Council's internal comments, this site has good access but is not described as having excellent access. Perhaps one reason for this may be (as Ms Gee explained) the lack of tram access and the lack of train services in Flagstaff Station on weekends.
2. The MSS acknowledges parking demand in the City's residential neighbourhoods continues to increase and it sets out a number of objectives and strategies that must be read in conjunction with the strategies for local areas. One of the objectives is to ensure car parking is appropriate to the location and type of car trip. A strategy to achieve this is:

Require parking for residential uses in the central city and other specific inner city locations at a level commensurate with the city's excellent level of access to public transport, employment and facilities.[16]

1. This strategy needs to be read in conjunction with the strategies for the local areas, and we note there is no reference to car parking provision at all in clause 21.08-9 for North and West Melbourne[17]. As such, the standard car parking requirement is as set out in clause 52.06 and any applicant needs to justify a car parking reduction from these levels.

1. We are unable to conclude the proposed 52 residential car spaces are appropriate. There is no empirical support for this figure for the reasons we have already explained.
2. It is necessary to strike the right balance between reducing car parking dependency whilst recognising, at the same time, the need and desire of residents to own a car, even if one is used less frequently in locations close to central Melbourne.
3. We reiterate that we are not persuaded by the evidence or submissions that the reduced level of car parking proposed in the amended plans of a total of 53 car spaces is appropriate, and we have no basis for approving an alternative figure. This aspect of the amendment application must therefore be refused. This means the four levels of car parking with a total of 112 spaces as approved in the previous decision of the Tribunal and currently embodied in the permit must be provided. We note this will mean a reduction in the number of apartments from 155 to 132 as levels 1 and 2[18] must remain as car parking levels.

1. The car parking layout approved in the previous decision of the Tribunal contained four levels of car parking accessed via ramp systems. The amended plans before us have changed this to a car lift system. The Council endorsed plans contain two car lifts, but the amended plans have modified one car lift to become a car space on each of the two car parking levels. This is because, according to Ms Donald's evidence, only one car lift (car lift 2) is necessary to provide adequate access to the 32 spaces provided at the basement level.

1. We are not persuaded by Ms Donald's evidence that only one car lift is required. Further, given our concerns about the adequacy of the car parking provision, the number of car spaces required for this development must increase to 112. As such, we are of the opinion two car lifts are necessary. However, this then raises other issues about whether the car parking layout and access proposed in the amended plans is satisfactory.

1. On Day 1 of this hearing, Mr Perrott advised that the Council's traffic engineers provided verbal advice that the change from ramps to car lifts and the turning circles were 'ok' as part of the Council's endorsed plans process. However, there is limited information on both the Council endorsed plans and these amended plans about how the car park will function.
2. On Day 1 of this hearing, Members Naylor and Chase cross-examined Ms Donald about the adequacy of the access arrangements, particularly the ability to turn safely and efficiently in and out of the car lifts and the car spaces. Ms Donald stated she was never engaged to review the appropriateness of the car space dimensions and aisle widths. She also stated she believed the aisle width is 6.2 metres as shown on the Council endorsed plans.
3. On Day 2 of this hearing, Ms Donald was again asked about the appropriateness of the access arrangements. This time she made a number of statements including:
   • the car space dimensions are in accordance with the Australian standard;
   • she believes the car lifts are 3 metres wide but she has not seen specification details;
   • there are no dimensions of access aisles on the plans;
   • the aisles and car lifts are design detail issues that can be resolved through permit conditions;
   • car spaces 18 and 19 need to be moved approximately one metre further north to improve accessibility;
   • whether car lift 1 should be moved further south to provide better access "comes back to the need for two car lifts";
   • a three point turn into or out of a car space is acceptable for residential movements in the Australian standard; and
   • she thought Council would have looked at the dimensions of the car spaces and access aisles.
4. Ms Donald also suggested improved access into and out of the car lifts may be enhanced by the removal of one 'middle' car space on each car park level so that cars can access both the east and west sides of each level. We agree with this suggestion as it will improve both efficiency and safety within the car park. We also consider car lift 1 should be moved further inside the building closer to the lift core to minimise potential conflict and delay for vehicles entering and leaving the site.
5. We appreciate that Ms Donald was never actually engaged to review whether the car space dimensions and access aisles, including the turning circles in and out of the car lifts were appropriate. Nevertheless, during the hearing neither the Council nor the Applicant was able to demonstrate to our satisfaction that the proposed parking levels (both in the amended plans and the Council endorsed plans) are accessible efficiently and safely.
6. We note the Council's internal traffic engineering referral comments on the amended plans raise some similar concerns, including:
   • a swept path analysis should be provided to demonstrate that access to all car spaces opposite the proposed lifts is satisfactory;
   • some spaces appear to be provided with reduced widths and should be identified as small car spaces;
   • the architectural plans are not dimensioned and should be to ensure the car parking bays and access are generally in accordance with Australian Standard AS/NZS 2890.1:2004;
   • a signalling system is needed within the car park to alert drivers when a car lift is in use within the car park, and at the entrance from the street so that vehicles do not conflict on the single lane section of the access from the street frontage;
   • the signalling system should include an alert for pedestrians on the footpath when a vehicle is exiting the site; and
   • there is a 2.08 metre level difference between the crossover and the eastern section of the ground level car park that should be reviewed to show the correct levels at the front of the site and the grade of the access.
7. It is evident from both Ms Donald's evidence and the internal comments that there are a number of uncertainties about the adequacy of the design and layout of the car parking and access, including the appropriateness of the location of car lift 1. We agree with the submissions that it is not uncommon for permit conditions to be imposed requiring the detailed design of the car park levels to be prepared and/or finalised. We have decided to include conditions to this effect. However, in this case, the number of matters commented upon by Ms Donald and in the Council's internal comments raise doubt in our minds as to whether an appropriate detailed design, when completed, can provide 112 car spaces as required by the previous decision of the Tribunal. We think it is possible that achieving an appropriate detailed design will result in greater floor area being required (e.g. all of level 2 and possibly a further level) to provide the required 112 car spaces. But this is a matter for the Applicant to determine with the Council whilst be cognisant of the need to ensure any approved plans are generally in accordance with the amended permit.
8. We are satisfied that the ramp system can be replaced by car lifts. We consider that two car lifts should be provided to service four levels of car parking. We also consider car lift 1 needs to be moved further south (further inside the building) to minimise the need for three point turning to access this car lift and to minimise the potential for conflict and delay for vehicles entering and leaving the site. Mr Townshend suggested that the car lift could be relocated to the adjoining car space to the south, however we think the correct location needs to be determined having regard to the objectives of minimising three point turning and the potential for conflict and delay. We have decided to require the detailed layout and design to be provided to the satisfaction of the Responsible Authority (i.e. the Council).
9. We acknowledge that, with the detailed layout and design issues already identified, it may not be possible to provide 112 car spaces in the four levels of car parking. It will then be up to the Applicant to decide whether to provide this level of car parking or whether to seek a further amendment to the permit pursuant to section 87A to reduce the car parking provision. As we have already identified, any further proposal to reduce the car parking provision needs to be justified. Justification to reduce the planning scheme's car parking requirements needs to be undertaken by applicants and assessed by Councils with some rigour, as it is important to applicants and the broader community that there is consistency in decision making, otherwise it would be an unfair and ad hoc approval process.

1. Our consideration of the merits of these amended plans has led us to conclude that the proposed changes to the layout and appearance of the residential tower are appropriate having regard to the heritage significance of the former industrial building and the broader streetscape and urban design considerations subject to Mr Negri's recommendations and the provision of a schedule of colours, materials and finishes. We are satisfied with the modifications to the extent of demolition of the former industrial building subject to Mr Lovell's recommendations regarding the new roofing over the existing roof trusses of the section of the former industrial building to be retained.
2. However, we are not persuaded that the car parking provision is adequate or appropriate. We are not persuaded about the efficiency and safety of the proposed car park layout and access, although we are prepared to leave this to the Responsible Authority to assess and approve. Mr Townshend submitted it is a relevant and important consideration that development has already lawfully commenced, and we agree. If this proposal was for a brand new development, we may well have determined to refuse the application. However, given the basement level has been excavated and the core structure is being constructed, we have decided to amend the permit to allow the changes to the layout and appearance of the development.
3. Due to our concerns about the car parking provision and layout, we have decided not to amend the conditions other than to include conditions regarding waste management; specifying what the provision of car parking must be; and that the car parking levels and car lifts must be appropriately designed[19].
4. We note that this decision not to allow the amendments to the provision of car parking and consequently the number of levels required for car parking will affect the overall number of apartments. However, this decision generally accords with the car parking provision included in the Council endorsed plans, which presumably form the basis of the construction that has commenced.
5. We now leave the matter of preparing further amended plans that are generally in accordance with the modified condition 1 of this permit to the Applicant. We rely upon the Council to undertake its role as the Responsible Authority with care and attention so as to ensure that the new endorsed plans are generally in accordance with the amended planning permit.

Terms and Conditions for Amended Permit TP-2008-999

Partial demolition of existing building and construction of a 14 level building (including building and works under the Heritage Overlay and Mixed Use zone; construction of two or more dwellings on a lot in Mixed Use zone; and buildings and works under the Design and Development Overlay Schedule 33), use of part of the land as an office, and a reduction in the standard car parking requirement in accordance with the endorsed plans.

The permit must contain the following conditions:

1. Within 6 weeks of the date of this amended permit, amended plans to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the plans will be endorsed and will then form part of the permit. The plans must be drawn to scale with dimensions and three copies must be provided. The plans must be generally in accordance with the amended plans substituted by VCAT in its order of 2 June 2011 but modified to show:
   • (a) A new roller door in the current location of the original roller door;
   • (b) The description on the second floor plan of the roof over the portion of the former industrial building being retained changed from "new roofing over existing roof trusses" to "the new roof to match the former roof it is replacing, including corrugated iron material and the correct pitch";
   • (c) The external expression of the tower generally in accordance with the images contained in Appendix 3 of Mr M Negri's P3108/2010 expert witness report dated June 2011, including:
     • (i) setting back the 2nd and 3rd levels of the building from the Batman Street frontage to create a sense of a tower floating above the retained building when viewed from the north side of Batman Street;
     • (ii) glazing the entire northern facade of the tower to produce a clean presentation to the street;
     • (iii) the provision of balcony space to provide interest and a uniform pattern in the northern facade;
     • (iv) removal of the red framing around central elements of the north facade; and
     • (v) removal of the graded paint colour from the base of the tower to the parapet in favour of cleaner mid-grey and black tones to provide distinction from the retained heritage building and to better relate to the original proposed external colour scheme.
   • (d) A schedule and samples of all external materials, colours and finishes showing the materials, colours and finishes of all external walls, roof, fascias, window frames, glazing types (including whether the balconies contain clear, tinted or dark glass), doors, balustrades and paving.
   • (e) The provision of two car parking lifts with car lift 1 (closest to the street) moved further into the building to minimise the need for three point turning and the potential conflict and delay for vehicles entering and leaving the site;
   • (f) The provision of 112 car parking spaces, including one car space for the office floor area, in four levels of car parking with two of these levels replacing approximately two levels of apartments;
   • (g) The specifications of the car lifts, including their model number and make and dimensions;
   • (h) Fully dimensioned plans of the car parking levels to ensure the car parking bays and access are generally in accordance with AS/NZS 2890.1-2004 or the planning scheme;
   • (i) A notation that any smaller parking spaces not complying with (h) above will be allocated to small cars only;
   • (j) A swept path analysis to demonstrate that access to all car spaces opposite the car lifts is satisfactory, including consideration as to the most appropriate location for the car lifts within the car park;
   • (k) The car park levels, other than ground level, having an aisle at one end that allows vehicles to move between the northeast and southwest sides to assist in the efficient use and operation of the car lift system;
   • (l) A signaling system adjacent to the car lifts alerting other users that the lift(s) is/are in use, and a signaling system alerting pedestrians on the street footpath when a vehicle is exiting the site;
   • (m) The levels of the ground floor car park and the driveway leading into it off Batman Street designed in accordance with AS/NZS 2801:2004;
   • (n) Details of any wall mounted bicycle racks including their model number and make. All mounted racks must be installed according to manufacturer's requirements, planning scheme requirements or the requirements of Bicycle Victoria to the satisfaction of the Responsible Authority.
2. The use and development as shown on the endorsed plans must not be altered or modified without the prior written consent of the Responsible Authority.
3. Prior to the commencement of the development, including demolition, a detailed construction and demolition management plan must be submitted to and be approved by the Responsible Authority. This construction management plan is to be prepared in accordance with the City of Melbourne - Construction Management Plan Guidelines and is to consider the following:
   • (a) Public safety, amenity and site security;
   • (b) Operating hours, noise and vibration controls;
   • (c) Air and dust management;
   • (d) Stormwater and sediment control;
   • (e) Waste and materials reuse; and
   • (f) Traffic management.
4. Prior to the commencement of buildings/works other than demolition works, the applicant must provide an environmental site assessment report by a suitably qualified expert. The report must include recommendations as to whether the history of the site and the proposed use of the site requires that an environmental audit ought to be undertaken pursuant to the Environment Protection Act. If no environmental audit is required, the report must provide recommendations about the management of any potentially contaminated land during and after construction. The report will form part of this permit and the applicant must comply with the recommendations to the satisfaction of the Responsible Authority.
5. The dimensions and layout of access lanes must be in accordance with the requirements of Australian Standard AS 2890.1-1 2004, Parking Facilities, Part 1: Off-Street Car-Parking or be to the satisfaction of the Responsible Authority.
6. Before the occupation of the development, a traffic management plan must be prepared, approved and implemented to the satisfaction of the Responsible Authority. This plan must detail the installation and operation of the signaling systems required within the car park and adjacent to the street footpath.
7. Any mechanical exhaust systems for the car park must be sound attenuated to prevent noise nuisance to the occupants of the building and surrounding properties to the satisfaction of the Responsible Authority.
8. All garbage and other waste material must be stored in an area set aside for such purposes to the satisfaction of the Responsible Authority.
9. No garbage bin or waste materials shall be deposited or stored outside the site and bins must be returned to the garbage storage area as soon as practicable after garbage collection.
10. All service pipes, apart from roof down pipes, must be concealed from the view of a person at ground level within common areas, public thoroughfares and adjoining properties.
11. Glazing materials used on all external walls and balconies must be of a type that does not reflect more than 15% of visible light when measured at an angle of 90 degrees to the glass surface to the satisfaction of the Responsible Authority.
12. The Owner of the site must construct a drainage system, incorporating water sensitive urban design features within the development and make provision to connect this system to the Council's stormwater drainage system in accordance with plans and specifications first approved by the Responsible Authority, Manager, Engineering Services.
13. The Owner of the site is not permitted to alter the existing footpath/road levels in Batman Street for the purpose of constructing new vehicle or pedestrian entrances without first obtaining the written approval of the Responsible Authority, Manager, Engineering Services.
14. Waste material may only be removed from the premises between the hours of 9.00 am and 4.00 pm Monday to Friday and 9.00 am to 6.00 pm on Saturday, Sunday or public holidays.
15. Within 6 months of the date of this amended permit, a Waste Management Plan (WMP) shall be prepared and submitted to the City of Melbourne, Engineering Services. This WMP should detail waste storage and collection arrangements and be prepared with reference to the City of Melbourne's Guidelines for Preparing a Waste Management Plan. Waste storage and collection arrangements must not be altered without prior consent of the City of Melbourne - Engineering Services. When approved, the WMP will form part of this permit.
16. This permit will expire if one or more of the following circumstances apply:
    • (a) The development is not started within two years of the date of this permit; and/or
    • (b) The development is not completed within four years of the date of this permit.

The Responsible Authority may extend the dates upon which this permit expires only if it receives a request in writing before the permit expires, or within three months afterwards.

[2] As stated on page 4 of Mr Connor's written submission presented on Day 1 of this hearing.

[3] The plans considered by the Tribunal in the previous decision contained four levels of car parking accessed via a ramp system and three apartments on the east side of level 2.

[4] The directions hearing was urgently arranged as the Tribunal was cognisant of the fact that construction had commenced on the site in accordance with the Council endorsed plans.

[5] The King David School v Stonnington CC & Ors (includes Summary) (Red Dot) [2011] VCAT 520

[6] A finding also expressed in Garnaut v Yarra CC [2010] VCAT 1089 and Finescape Pty Ltd v Greater Geelong CC [2011] VCAT 362

[7] It was confirmed on Day 2 of the hearing that the condition of the original roller door is not sufficient to enable it to be utilised on a regular basis, hence it will remain in the 'up' position.

[8] The amended elevations and montages contain both light colours and differing shades of grey.

[9] Based upon clause 52.06, car parking in the planning scheme

[10] Schedule 2 to clause 52.06, car parking

[11] For example, Australian Affordable Housing Association Inc v Maribyrnong CC [2010] VCAT 302; Jefferies v Melbourne CC [2010] VCAT 1711; Brelis & Ors v Moreland CC [2011] VCAT 769; Glengarry Developments Pty Ltd v Greater Geelong CC Interim Order 3 March 2011.

[12] The quotations are Ms Donald's words.

[13] It should be noted that Council did not participate in this cross-examination.

[14] Based on 3.5 spaces per 100 square metres

[16] Strategy 7.3 in clause 21.06, page 6 of 9

[17] This is contrasted with, for example, the Southbank local area where the impact of traffic is sought to be minimised on Residential and Mixed Use Zones at clause 21.08-3 and the Carlton local area where the impact of traffic is sought to be minimised on Residential and Mixed Use Zones, competing demands for car parking from residents, businesses and institutions is to be managed and improved public transport services to the Central City and neighbouring suburbs from Carlton is supported.

[18] Proposed to contain a total of 23 apartments across the two levels

[19] We have removed the condition in the permit that specifically related to ramp grades and head clearances as this is no longer necessary.