Our overall findings have been to approve the proposed oxygen storage compound and to grant the Section 87A Applications, but subject to various additional design changes for the main hospital site which we have incorporated through the revised Condition 1 sub-clauses in Appendix 2 to this decision. Notably, we have required further improvements to the proposed Erin Street façade, to be resolved in consultation with the project architect and Council's urban design advisor.

We have red-dotted this decision for two reasons, as follows. First, whilst there are some similarities with the proposed Peter Doherty Institute building considered by the Tribunal in University of Melbourne v Minister for Planning[1], we were required to go further in considering the real tension for a prominent new hospital building in this East Melbourne location between "form" and "function". This tension is particularly acute in the context of a community facility (here a regional hospital) playing a very important social role and where "internal functionality" is a key factor. In the final result, our support for the Section 87A Applications was subject to requiring improvements to the proposed Erin Street façade by way of permit condition, so as to achieve what we see as an appropriate balance between "form" and "function".

Second, in relation to the safety aspects of a proposed potentially hazardous storage facility near existing residential dwellings, we were required to consider how much evidence an Applicant must provide and how we should assess that evidence. In this regard, we are satisfied that the proponent does not need to demonstrate that the proposal will be completely risk-free. Rather, where we have the benefit of credible expert evidence from an engineer with specialist expertise in the storage of hazardous gases who supports the proposal, we are satisfied that it has been demonstrated that the proposed facility fundamentally can operate safely.

VCAT REFERENCE NO. P1536/2012, P1543/2012 & P1673/2012

Section 87A & 77 of the Planning & Environment Act 1987; Yarra Planning Scheme; proposed amendment to two existing permits allowing expansion of Epworth Hospital main site, also a new proposal for an oxygen storage facility on Elim site; issues of "need", safety, traffic and parking, amenity impacts, balance between internal functionality and urban design and neighbourhood character.

P1536/2012 - Philip Kennon, Andrew Williams, P & L Tregloan and Cushla McNamara

Epworth Healthcare v Yarra CC (includes Summary) (Red Dot) [2012] VCAT 1801

1. The decision of the Responsible Authority is set aside.
2. In planning permit application No. PL09/0085, a permit is granted and directed to be issued in relation to the land at 29 Erin Street, Richmond. The permit shall allow buildings and works associated with a proposed oxygen storage facility and associated works and alteration to an existing vehicle crossover, generally in accordance with the endorsed plans and subject to the permit conditions set out in Appendix 1 to this decision.

P1543/2012 & P1673/2012 - Amendment to existing permits for main hospital site

1. The Application pursuant to Section 87A of the Planning and Environment Act 1987 is granted.
2. With respect to the existing planning permit No. PL09/0084, the Tribunal directs that the following modifications occur to that permit:
   • the preamble to that permit is amended to read as follows:

Development of the land including partial demolition for the purpose of a hospital and medical centre (with existing use rights), a car park, food and drink premises (coffee shop) and a reduction in the car parking requirement, in accordance with the endorsed plans.

• the conditions of that permit are amended to be as set down in Appendix 2 to this decision.

1. The Responsible Authority must issue a modified version of planning permit No. PL09/0084 in accordance with this order.
2. In relation to the existing planning permit No. PL09/0085, the Responsible Authority is directed to cancel that permit, once the Responsible Authority and the Applicant have agreed in writing that all relevant features of that permit (including any secondary consents) have either been satisfied or have been brought across to form part of other on-going planning approvals for the main Epworth Hospital (Richmond) site. In this regard, the Responsible Authority and the Applicant must in good faith provide all reasonable cooperation to proactively satisfy this requirement as soon as practicable.

Mr Chris Townshend SC of Counsel, assisted by Mr Barnaby Chessell of Counsel, both instructed by Gadens lawyers. They called the following expert evidence - planning evidence from Mr Jamie Govenlock, architectural evidence from Mr Peter Quigley, urban design evidence from Mr Mark Sheppard, landscaping evidence from Mr Darren Atkinson, traffic engineering evidence from Mr Stephen Hunt, noise evidence from Mr Robert Burton and dangerous goods storage evidence from Mr Phil Kemm. The following additional evidence was led - design evidence from the project architect Ms Aija Thomas, lay evidence from the CEO of Epworth Healthcare Mr Alan Kinkade and gas supply industry evidence from Mr Gary Zimmerle.

Ms Mimi Marcus of Maddocks lawyers. She called expert architectural and urban design evidence from Mr Robert McGauran.

P1536/2012 - the following neighbours appeared in person at different times during the hearing - Mr Philip Kennon, Mr Peter Tregloan and Ms Cushla McNamara.

P1536/2012 - buildings and works associated with a proposed oxygen storage facility and associated works and alteration to an existing vehicle crossover.

P1543/2012 & P1673/2012 - the amendment and consolidation of two existing planning permits which provide for the expansion of buildings on the main Epworth hospital site in Richmond.

P1536/2012 - Section 77 of the Planning and Environment Act 1987

P1673/2012 & P1543/2012 - Section 87A of that Act.

Clause 32.01 - All of the 29 Erin Street site and most of the 30-32 Erin Street site are zoned Residential 1.

Clause 34.01 - the balance of the 30-32 Bridge Road site (facing Bridge Road) is zoned Business 1.

Clause 43.01 - the 29 Erin Street site is affected by the Heritage Overlays HO 257 & 338.

Clauses 32.01 & 34.01 - buildings and works permission is required for the proposed works on the main hospital site, which falls within the Business 1 and Residential 1 zones (no use approval is needed, given "existing use rights").

Clause 32.01 - buildings and works approval is required on the Elim site affected by the Residential 1 zone (no use approval is needed, given "existing use rights").

Clause 43.01 - although the Elim site is nominally affected by the Heritage Overlay, in practice no permit trigger arises since this site is included on the Victoria Heritage Register (VHR 0651).

SPPF - Clauses 11.01-2, 13.04-1, 15.01, 15.02, 17.01, 18.02, 19.02 and 15.01.

LPPF - Clauses 21.03, 21.04, 21.06, 21.07 and 21.08.

Also see the Clause 52.06 car parking provisions, the Clause 52.34 bicycle provisions and the Clause 65 general decision making guidelines.

The site at 29 Erin Street lies on the north side of the street and is known as "Elim House" (Elim). The historic building has associated structures and an adjacent rehabilitation swimming pool. A driveway from Erin Street leads past attractive semi-open landscaped areas to a multi-deck car park facing a rear laneway. The site has a total area of 6319 sqm and apparently been used for rehabilitation/hospital purposes since at least the 1980s.

The main hospital site at 30-32 Erin Street is 18,593 sqm and has been used as a hospital for at least 70-80 years. It has public entrances facing from both Bridge Road and Erin Street and comprises buildings with a variety of ages and styles, extending up to the equivalent of 10 stories in height. Planning approval was granted in February 2010 for the redevelopment of that part of the hospital facing Bridge Road (these works are well advanced) and for the redevelopment of the northern area of the site facing Erin Street. These northern works are still being planned. As part of the redevelopment, the former Bethesda hospital in the north-west corner of the main hospital site was recently demolished.

An accompanied site inspection of both sites was carried out by the Tribunal on 17 October 2012.

University of Melbourne v Minister for Planning [2011] VCAT 1627, Alfred Hospital v City of Malvern (1986) 4 PABR 334, Popular Pastimes Pty Ltd v Port Phillip CC (Red dot) [2008] VCAT 1184, Batman v Melbourne CC (Red dot) [2011] VCAT 1477, Knox City Council v Tulcany Pty Ltd [2004] VSC 375, Terminals Pty Ltd v Greater Geelong CC [2011] VCAT 2360, John Marsden v Macedon Ranges SC (Red dot) [2012] VCAT 1038.

1. This matter involves the combined processing of three Tribunal proceedings, in relation to land at 29 and 30-32 Erin Street in Richmond. With respect to the No. 29 site on the north side (the Elim property), the Applicant, Epworth Healthcare, proposes to build an oxygen storage compound, replacing the existing one located off Bridge Road.
2. In relation to the main hospital site at No. 30-32 on the south side of Erin Street, two Section 87A applications have been lodged with the Tribunal. They seek to consolidate two existing planning permits into one replacement permit. This process would also involve (as one overall project) various proposed revisions to the existing approvals for the expansion of the hospital, notably a new vehicle entry point off Normanby Place relocated from Erin Street, reduced setbacks and a revised treatment to the Erin Street pedestrian interface and façade.
3. Prior to the Tribunal hearing, Council did not support any of the proposals. Objections were also received from neighbours. A combined Tribunal hearing was held between the 15th and 23rd October 2012. We used part of one of the hearing days to inspect both sites and the surrounding road network. In our Reasons below, we provide further background information, deal with certain preliminary matters, discuss the key issues arising and set out our findings.
4. We support the overall proposal, but on the strength of some of the changes proposed in the Book 7 plans circulated near the end of the hearing process, and subject to further changes to the façade treatment and to the ground level thoroughfares that we have required in the updated Condition 1 sub-clauses for the main hospital site set out in Appendix 2 attached. While we accept that the endorsed plans had unresolved issues, we find that with the additional noise attenuation works recommended by Mr Burton on the Elim site, together with various design changes on the main hospital site, the overall proposed works are acceptable and worthy of permit approval.

WHAT DOES THIS MATTER INVOLVE AND WHAT HAS THE TRIBUNAL DECIDED?

Site context, planning permit history for main hospital site and Elim property

1. The Epworth Hospital (Richmond) is within the Bridge Road Major Activity Centre and has operated on its main site for at least 70 - 80 years. It is owned by Epworth Healthcare, which we are told is the largest, not-for-profit health care provider in Victoria and is affiliated with the Uniting Church of Australia[2]. We understand that the hospital treats at least 46,000 patients a year[3], it employs over 1800 people and accommodates 1200 accredited visiting specialists[4]. The Yarra Planning Scheme recognises the "regional significance"[5] of the hospital.
2. The main hospital site faces Erin Street to the north, Bridge Road to the south, Normanby Place to the west (being a one-way street to the north) and Leigh Place to the east (being a one-way street to the south). The Erin Street frontage is unusually long, running the full block and has a length in the order of 190 metres[6]. The section of the hospital facing Bridge Road is far smaller in extent. Bridge Road is a lively strip of shops, cafes and restaurants. It has a tram service along it and a railway station a short walk to the north-west of the hospital. The broader area contains established housing, often fine grained, with attractive period dwellings. The MCG and the CAD lie relatively close to the west.
3. While hospitals have always played an important role in our community, Australia's aging population and Victoria's strong population growth over the last 10 years or so has increased the demand for health services in Melbourne - indeed some might say our health services are under stress[7]. Combined with the demands arising from more rigorous regulatory requirements for health care, common sense alone indicates that the hospital will need continuous change in order to properly respond to the challenge of providing high quality health care. This need is reinforced by the following:
   • an extremely high occupancy rate of the hospital[8], as advised by the Applicant and unchallenged by other parties;
   • the fact that this hospital is a teaching hospital;
   • the overt local planning policy support for the important role of the hospital. The Planning Scheme[9] identifies Epworth (Richmond) as a core element of the "Specialist medical precinct" in this locality, and notes that the Epworth and St Vincent's hospitals are "regional facilities" and "important to the community"[10]; and
   • previous Tribunal decisions which emphasise the importance of the protection of human health and of essential community-based uses, recently in University of Melbourne v Minister for Planning[11] . With respect to the priority to be given to "human health", in approving a helipad for that hospital, the then Planning Appeals Board in Alfred Hospital v City of Malvern[12]found that:

In other words, the cost of not constructing the [helipad] must be assessed in terms of society's most important asset, human lives.

1. Whilst there is a longer planning permit history for the main hospital site[13], for our purposes it is sufficient to say that the hospital:
   • received at the Tribunal's direction planning permit No. 00/0438 dated 16 October 2000, allowing the development of what is known as the Epworth Centre (the eight-storey glass clad building since developed), together with car parking dispensation; and
   • at the direction of the Governor-in-Council (via the then Minister for Planning) received two planning permits[14] in February 2010, allowing for a two-stage development of the northern portion of the site facing Erin Street, together with the redevelopment of the southern building on Bridge Road. This overall approval provides for a total hospital expansion up to 777 beds. We understand that a number of secondary consents have also been granted by Council in relation to these February 2010 permits.
2. Whilst the main hospital site lies on the south side of Erin Street, to the north and slightly further west is the property known as Elim. It comprises an original 2 storey mansion, together with other buildings, a rear car park, rehabilitation swimming pool, landscape garden areas and a driveway extending north from Erin Street. There is a laneway running east-west along the rear boundary, together with another laneway along the northern end of the western boundary.
3. We are told that this site has been used for hospital/rehabilitation services since at least the 1980s, has been owned by Epworth for the last 15 years or so and that Epworth rehabilitation is the largest provider of rehabilitation services in Victoria, treating a third of Victoria's road trauma patients each year[15]. While under the Yarra Planning Scheme the site is affected by a Heritage Overlay, as it is on the Victoria Heritage Register heritage issues arising from the site are a matter for Heritage Victoria rather than being within the discretion of Yarra City Council or VCAT[16].

1. It is uncontested that the main hospital site enjoys "existing use rights" for that purpose. In relation to the draft permit condition 21 for the main hospital site which seeks to protect locality amenity, we agree with Mr Townshend that this type of use-related proposed condition is mis-conceived, given such uncontested existing use rights.
2. Whilst the position may lack total clarity in relation to Elim House, Member Martin (as a Legal Member) is satisfied for the purpose of these proceedings that the Elim property also enjoys existing use rights for hospital/rehabilitation purposes. Member Martin relies on the fact that rehabilitation/hospital activities on the Elim property extend back to the 1980s and thus fall under the "15-year rule" in Clause 63.01 of the Planning Scheme, which provides that 15 years of continuous proven use it deemed to constitute "existing use rights".
3. The practical upshot is that if new works associated with a hospital purpose are proposed on either the main hospital site or the Elim property, no "use" approval is needed for the new oxygen storage vessel on that site - merely "buildings and works" approval.
4. To the extent that Mr Kennon or Mr Tregloan argued that the past absence of any oxygen storage tank on the Elim property was evidence that such a facility would require both "use" and "development" approval, with respect, this is a misguided approach. The key question to ask is "for what overall purpose has the Elim site been used for the last 15 years?", not what individual plant and equipment has existed on the site over that period. The Tribunal accepts that the Elim site has existing use rights for its use for the purpose of "hospital," and that oxygen storage tanks are a common feature of hospitals, whether or not any such facility previously existed on the Elim site.

Bates Smart plans and proposal for larger oxygen storage tanks

1. Subsequent to the issue of two-stage permits for the main site in February 2010, plans by Bates Smart were endorsed under those permits and the preparation of preliminary schematic plans was commenced. We were provided with some drawings from both sets of plans. We were told by the Applicant that in significant respects the northern expansion as shown on the endorsed plans fails to comply with the current Department of Human Services guidelines and Building Code of Australia regulatory requirements,[17] so as to make it unlikely that the necessary consents for the new northern building could be obtained from the Department of Health[18] and other relevant regulatory authorities.
2. A further complication is that while the two February 2010 planning permits envisaged a staged approach to the hospital expansion, in practice this distinction has since blurred and commencement has occurred under both of these permits.
3. An additional development is that:
   • following a number of investigations and reports,[19] Epworth Healthcare identified a critical need to upgrade its existing 10,000 litre liquid oxygen storage tank, which, along with a back up tank, is located in the Bridge Road car park entrance area; and
   • on this basis, the Applicant seeks planning approval to install a replacement 30,000 litre oxygen storage tank in the northwest corner of the Elim site, together with a 3,000 litre back-up tank. This would involve demolishing an existing derelict outbuilding west of the swimming pool building on the Elim site.
4. The refilling process involves the tanker backing up to a filling point, connecting a hose to it and using the tanker pump to fill the vessel, with an expected overall turnaround time in the order of 50-60 minutes. Locating the new facility on the Elim site means that tankers could access the new vessel in daylight from Erin Street, instead of from Bridge Road at night.

Fresh planning proceedings and the October 2012 Tribunal hearing

1. In the light of developments since February 2010, Epworth Healthcare:
   • initiated at the Tribunal two Applications under Section 87A of the Planning and Environment Act 1987, to consolidate the two 2010 planning permits into a single updated permit and to make various changes to the new northern hospital building and associated access arrangements, whilst maintaining the overall cap of 777 hospital beds. We provide a summary of these below. As part of this process, the hospital's new architects, Silver Thomas Hanley, indicated that their revised plans now being put forward for approval satisfy the relevant health and building code regulatory requirements;
   • seeks planning approval for the new oxygen storage facility on the Elim site described above. Neighbours have objected to the location of the facility and Council has issued a Notice of Refusal to Grant a Permit. Council's main concerns relate to the likely visual bulk arising from the proposal and potential external amenity impacts; and
   • seeks a review of Council's decision by the Tribunal, in tandem with the Section 87A applications.
2. In relation to the Section 87A Applications, the Council Delegate Report provided to the Tribunal[20] usefully summarises the proposed changes.

1. Realignment of the Erin Street pedestrian entrance further east to line up with the Bridge Road entrance; 2. Reduced/modified setbacks from Erin Street, Leigh and Normanby Place to provide a harder edged building;

1. Enlarged footprint by virtue of expansion, south, into the site;

1. Epworth Centre car park entrance and rehabilitation entrance relocated from Erin Street to Normanby Place; 2. Provision of additional vehicle access from Leigh Place (8 cars) as a result of internal reconfiguration; 3. Additional basement car parking (39 spaces); 4. Inclusion of a new link between proposed and existing buildings along Leigh Place from levels 2-5 (no access through level 3); 5. Reconfiguration of the ambulance bay along Leigh Place; 6. A reconfiguration of numerous internal spaces; 7. Consolidation of the two (2) planning permits into one (1), with necessary substation of new architectural plans; and 8. Updated supporting reports.
2. At the beginning of the hearing, we were provided with several books of plans; notably Book 1 showing many of the proposed new main hospital site plans and Book 3 showing the proposal plans for the oxygen storage facility.
3. Based on these plans, Council's position at the commencement of the hearing can be summarised as follows:
   • it opposed outright the relocation of the oxygen vessel to the Elim site; and
   • it conceded that some aspects of the main hospital site proposal are worthy and have strong planning policy support, but opposed other aspects. In particular, the revised design of the Erin Street façade, and the relocated vehicle access to the western hospital car park from Erin Street to Normanby Place.
4. In the course of the hearing the Applicant revised its position somewhat and circulated Book 7 plans late in the hearing. Book 7 plans:
   • change the articulation of the Erin Street façade;
   • widen some ground floor public corridors; and
   • introduce certain other non-contentious minor design changes discussed during the hearing.[21]
5. By the final hearing day, Ms Marcus advised us that (based on the Book 7 revised plans) Council now supports the Section 87A proposal, with the exception of the proposed vehicle access off Normanby Place. We acknowledge that despite this change of position by Council, the objection to the Section 87A Applications by the neighbours Christine David and Alan Dredge (who did not appear at the hearing) remains on foot and we have taken this submission into account in making our findings.
6. In relation to draft permit conditions, we were able to finalise the discussion about those proposed in relation to the Elim site, but left Council and the Applicant to agree on consolidated draft permit conditions relating to the main hospital site for consideration by the Tribunal.
7. These were received from Council on 12 November 2012 and we have taken them into account in formulating the permit conditions.

1. There are several preliminary issues which we consider straightforward enough to be able to be briefly addressed. We then consider the key issues arising from the oxygen storage proposed on the Elim site, which we consider are:
   • the potential amenity impacts;
   • the anticipated appearance of the new facility;
   • whether any unacceptable safety consequences arise from the proposal and its proposed location relatively close to the rear of several residential properties; and
   • whether this facility would be more appropriately located on the main hospital site.
2. Our overall finding is that the oxygen storage proposal is acceptable when assessed against these key issues; hence we have made orders varying Council's Notice of Refusal and have directed that a permit shall issue approving the facility.
3. The Section 87A applications involve the consolidation of the two existing planning permits for the main hospital site and a revised treatment of the northern hospital expansion. We accept that there is a legitimate need to optimise as far as practicable the internal functionality and standardisation of the updated hospital floors, and that the on-going regional role of the hospital has substantial overt local policy support.
4. However this does not mean that the design of the development can ignore its context and consequent urban design considerations. It is common ground that the review site is surrounded by a sensitive heritage area. To the north, east and west there are fine grain period dwellings of limited height. The challenge to be met is rather one of achieving an acceptable balance between the strong needs of hospital functionality with an appropriate urban design which responds to and respects its inner city location. This is particularly important along Erin Street where the façade stretches some 190 metres or so along the street.
5. In this context, we see the key issues on the main hospital site (working from the simpler to the more complex) as:
   • the adequacy of the proposed bike storage area;
   • resolving the principal pedestrian entry and thoroughfares through the ground floor;
   • the acceptability of relocating the vehicle entrance for the western (staff) car park from Erin Street to Normanby Place; and
   • achieving an acceptable urban design response to Erin Street.
6. By the end of the hearing the only aspect of the Section 87A applications still being contested by Council was the third bullet point.
7. Our overall finding with regard to the two Section 87A applications is that we accept the rationale in having a consolidated permit. With two provisos, we are satisfied that in general the plans represent an acceptable planning outcome that is worthy of permit approval. We consider additional permit conditions are necessary to improve pedestrian access through and within the site, and that the Erin Street façade and entry require further changes in order to achieve an acceptable urban design outcome.

1. In relation to the Section 87A applications, it was common ground at the hearing that this provision gives the Tribunal broad discretion in terms of potential changes to the existing 2010 permits.[22] It was also non-contentious that the Tribunal's role is ultimately to judge whether or not these changes will result in an acceptable planning outcome, rather than adjudicating between the endorsed and the new plans before us.[23]
2. We have already noted that we accept the submission of the Applicant that:
   • there exists a strong "need" case in relation to the proposal; and
   • both sites enjoy existing use rights for the use of "hospital".
3. We similarly acknowledge the need for a larger oxygen storage tank. Mr Townshend put it as simply: "No oxygen, no hospital". We agree that the hospital has a critical need for reliable oxygen supplies; common sense tells us that lives could be at risk if this supply was threatened. We are also mindful of the evidence presented to us that like hospitals across Melbourne similarly have large oxygen storage tanks and that this is a typical feature of modern hospitals.
4. In regard to the day to day operation of the oxygen facility, Mr Kennon and Mr Tregloan asserted that best practice should be achieved on the Elim site, not merely compliance. While "best practice" is a commendable aspiration, we agree with Mr Townshend that it would be inappropriate for the Tribunal to review the appropriateness of the relevant dangerous goods/occupational health and safety laws, regulations and/or standards. Rather, it is appropriate for the Tribunal to assume that suitable expert input has occurred with the preparation of these laws and standards. The Tribunal's role is to assess whether the proposal is an acceptable planning outcome.
5. That this is the proper approach is reinforced by previous decisions. In Knox City Council v Tulcany[24] Justice Osborn confirmed that the benchmark for assessing this type of planning decision is whether or not the proposal is "acceptable", as opposed to achieving a perfect or ideal outcome, with reference to "net community benefit" and "sustainable development".
6. In Terminals Pty Ltd v Greater Geelong City Council [25], the Tribunal assessed four proposed bitumen storage tanks in an existing chemical storage facility in Corio Bay. It was opposed by several objectors including Mr Linaker and a community group known as GCAN. At paragraph 26 the Tribunal said:

Fifth, we note that both Mr Linaker and the GCAN at certain points in their submissions expressed concern and/or distrust regarding aspects of the relevant Australian Standards which apply to the proposal. These concerns sometimes involved the Tribunal (in assessing the proposal) being urged to go beyond these Australian Standards and instead rely on rather fluid notions of "worlds best practice" or the like. We do not accept that it is appropriate or feasible for the Tribunal to double-guess the applicable Australian Standards. The reality is that the relevant Australian Standards have been prepared within a particular framework and with particular expert expertise involved, and in our view it is quite misconceived for any party to expect the Tribunal to effectively discount this situation. Rather, we consider that (whilst they are only one part of the overall context) it is fair and reasonable that we give a substantial level of weight to the relevant Australian Standards and whether the proposal complies with same.

1. In terms of how the Tribunal should assess an acceptable level of risk, we adopt the benchmark of "acceptability", as articulated in the Tulcany decision. Mr Townshend urged us to find that a certain level of risk is a reasonable (if not inevitable) part of living in an urban area. We see some truth to this proposition, but we are also conscious of the need for a particularly high level of care where dangerous goods are stored within residential areas.
2. The Tribunal requires sufficient evidence to satisfy it that the proposed storage of dangerous goods will comply with the relevant statutory regime. Equally, it needs to be said that:
   • the Applicant should not in our view be required to prove that the facility will be completely risk-free; and
   • risk assessment should not be undertaken by excessive consideration of worst-case scenarios.
3. We consider that requiring a permit applicant to demonstrate a completely risk-free outcome would:
   • impose an unrealistic and unreasonable burden on permit applications, particularly those where the "need" is strong; and
   • in a circumstance like this one, fly in the face of the practical reality that hospitals are commonly located in urban areas and that the storage of oxygen is integral to their operation.
4. The balance that needs to be reached has been discussed in a number of previous Tribunal decisions.
5. In John Marsden v Macedon Ranges SC[26] , the Tribunal considered the proposed doubling of the cap on student numbers in a school located in a rural area subject to the risk of bushfire. In terms of how the Tribunal should assess the proposal against this bushfire risk, at paragraph 59 it said:

Hence, we accept that the Applicant here does not need to demonstrate that increasing the cap on student numbers at the school to "196 students" will be completely free of any bushfire risks. Rather, the appropriate test is whether Mr Marsden has demonstrated that the bushfire risks have been contained or managed to an acceptable level. However, we make clear that in demonstrating what is an acceptable outcome, the "bar" should be set at a very high level. We consider this approach to be consistent with the direction given by state policy at Clause 13.05-1 which calls for the protection of human life to be a priority.

1. In relation to how much weight should be given to "worst case scenarios", the Tribunal in the Terminals Pty Ltd decision said:
   1. Finally, we are conscious that as part of Mr Linaker's submissions, he (amongst other points) urged us to consider the proposal in the context of what might be described as the "big bang scenario" of other nearby stored chemicals on the review site exploding and how same would impact on the storage of bitumen in the four new tanks proposed here and vice-versa. As part of these submissions, Mr Linaker for example used the term "murphy's law" several times, in seeking to paint a picture of potential dire outcomes.
   2. We consider that there is a sensible and fair middle ground where the Tribunal can and should consider whether there is any evident/plausible safety issues arising from the installation of the four new bitumen storage tanks, in terms of the interface between the particular land on which the new tanks will be located vis-à-vis the existing storage facilities on the surrounding land. We found the expert engineering evidence of Ms Gomez very helpful in this regard and the objectors were able to put questions to her about same.
   3. However we consider it inappropriate and unfair to the Applicant for the Tribunal to jump straight to considering a catastrophic outcome along the lines of the Coode Island explosion, and then assess the proposal by working backwards from there...
2. We adopt this reasoning and conclusion as a basis for our decision making in this case.

TRIBUNAL'S FINDINGS ON PROPOSED ELIM SITE OXYGEN STORAGE FACILITY

1. It is proposed to demolish an existing outbuilding and install a new compound containing a 30,000 litre oxygen storage tank, together with a 3,000 litre back up tank in the north-west corner of the Elim Site.
2. The main tank sits in the western area of the new compound. It has a north-south orientation and is set back from the northern end of the western boundary of the site by 5 metres. The back-up tank is further to the east. A masonry fire wall surrounds the tanks and the filling point is located outside the wall to the south. The driveway from Erin Street requires modification to facilitate the necessary truck movement and two trees are to be removed[27]. The facility also includes pipe work from the compound under Erin Street to the main hospital site. Separate Council approval is required for street works, outside the Tribunal's jurisdiction.
3. Heritage approval for the demolition of the existing outbuilding and the construction of the new oxygen storage facility has already been granted by Heritage Victoria[28], but planning permission is still required. We were told that the new main tank was originally proposed closer to the western boundary, but as a result of preliminary consultation, revised plans (those on which Council made its decision) introduced a greater landscaped western setback.
4. Although it was initially proposed that the tanker would back up the driveway to refill the vessel, by the time of the hearing a modified driveway had been proposed to allow "forward in-forward out" movements. All parties at the hearing agreed that this is to be preferred and we endorse this approach.
5. Epworth Healthcare advised us that whilst deliveries to the new storage tank could be once or twice a fortnight, it might sometimes be less often.
6. Mr Kemm has issued a Certificate of Compliance in respect of the proposed facility, declaring that it would comply with all relevant aspects of the key Australian Standard AS1894. However, in the course of Council's cross-examination, Mr Kemm conceded that he had under-estimated some of the minimum separation distances for the proposed main storage tank, having regard to the applicable statutory regime[29]. The Australian standard also prescribes a maximum distance from the fill point to the tanker of 6 metres, and the plans in Book 3 indicate a distance of around 10 metres.
7. At the hearing, Mr Kemm re-calculated the relevant minimum separation distances, some of which increased by a metre, and confirmed that (with the exception of the fill point location) the proposal would still be fully compliant with the applicable legislation, regulations[30] and Australian Standard AS 1894[31] flowing from the Dangerous Goods Act 1985. His evidence is that the distance of the fill point from the tanker was still within the acceptable leeway provided for in these Standards, but that relocation of the fill point neared to the tanker was possible and desirable.
8. Mr Burton's acoustic evidence recommends additional noise attenuation measures. He explained that:
   • a gap exists between the two closest existing buildings on the review site, to the north and west of the intended filling point;
   • unless attenuated, this gap will allow noise from the truck pump greater than the maximum noise levels prescribed under the State Environmental Protection Policy N-1 (Control of Noise from Industry, Commerce and Trade) to be heard from residential properties to the west of the filling point, including the rear of Mr Kennon's property at 11 Muir Street;
   • this could be addressed by constructing a partial barrier to close the gap as shown in Book 3, and
   • the hours during which a truck could re-fill the tank should be limited to the period 7.00 am to 6 pm Monday to Friday and 7 am to 1 pm on Saturdays.
9. Mr Burton's evidence is that if these attenuation works are incorporated along with restrictions on the hours of potential deliveries, the anticipated noise from the filling procedure will comply with SEPP N-1.
10. Our findings regarding the merits of the proposed oxygen storage facility include the incorporation of these measures.
11. Mr Zimmerle gave evidence as a person experienced in the gas supply industry. His particular experience is in the delivery of oxygen to hospital oxygen storage facilities. He explained how delivery typically occurs and how oxygen is supplied to the existing 10,000 litre tank in the Bridge Road car park entrance area.
12. The landscape evidence of Mr Atkinson focussed on the proposed landscaping of the setback area between the tank enclosure and the laneway to the west. He said that there is sufficient area available for both small trees and creepers which will largely mask the facility within a short time.
13. We turn now to the issues relating to the storage facility, its appearance, amenity impact and safety, and whether the facility should be retained on the main hospital site. We say at the outset that we do not accept as a viable alternative the hospital simply arranging more frequent deliveries to the existing 10,000 litre oxygen tank. The existing tank is aging, requires replacement, causes service difficulties and imposes serious inherent traffic risks from the manoeuvres required for the tanker to access the tank, even though this takes place after hours.

Will the proposed facility have an acceptable appearance?

1. Whilst the Clause 55 ResCode provisions strictly speaking are not relevant, we note that the proposed structure would comfortably comply within the B17 Standard for preferred setbacks for a building of this height.
2. Plans 20-22 in Book 3 explain the proposed landscaping in between the proposed oxygen storage compound and the laneway to the west. A new four metre high masonry wall is located 3.88 metres to the east of the closest edge of the laneway. This setback area contains a 1200 mm wide concrete pathway with the balance providing garden beds containing trees at an as-planted height of three metres[32], with lattice and creepers on the wall. The proposed trees typically grow to a mature height of about 8-9 metres.[33].
3. We consider that even at its early stage, this planting scheme will screen the installation and the available views of the masonry wall and storage tank from the adjoining laneway area. We note that the laneway is a dead-end and we expect that it is rarely used by the general public. Taken together, we consider that the combination of the setback and landscape treatment will result in the appearance of the compound being acceptable.
4. Our finding is reinforced by our inspection of the Muir street properties that back on to the laneway. Starting with the No. 11, the property owned by Mr Kennon, recent renovation works include a high rear fence[34] to the east of the car port. Despite Mr Kennon's reference to the possibility of this rear car port being used for "occasional parties" and the like, this rear area inescapably has a service character. It is substantially buffered from the review site by the new high fence and the intervening laneway.
5. Similarly the other "rear courtyard areas" of the properties further north are characterised by a substantial rear fence and trellis in the case of No. 9, or rear roller doors further north again. We expect that (with or without the new landscaping) someone standing in these rear courtyard areas will have a limited view over the top of the rear fence or roller door towards the new facility. Such a person would no doubt also be aware that the two and three storey walls are a relatively common visual element in this inner city location.

Will the proposed facility have any unacceptable external amenity impacts?

1. We do not see the need to discuss potential overshadowing, as we are satisfied that the shadow diagrams provided in Book 3 show the extent of the shadow at the Equinox to be benevolent as it falls either on the site itself or on the abutting laneway.
2. Mr Kennon urged us to give weight to the "unpleasant perception" of the close proximity of the new facility. As discussed at the hearing, this seems to be a variation on a "perceived loss of amenity" submission. As Member Martin indicated, in the absence of Mr Kennon being able to produce case law supporting his assertion (and no such cases were provided), our understanding is that the Tribunal has in recent years moved away from giving weight to "perceived loss of amenity" submissions which are necessarily of a subjective nature. Where Mr Kennon invited the Tribunal to consider he and his wife occupying their upper bedroom as a "patients" for the purposes of the relevant dangerous goods regulatory requirements, we consider this to be an innovative but misconceived interpretation of the word "patient" that carries little weight. It any event, it also appears from the drawings that this upper storey room is over 10 metres from the main storage tank.
3. A remaining amenity issue is the acceptability or otherwise of the impact of noise from refuelling the vessel. We have already noted Mr Burton's recommended attenuation works.[35] We accept that, but for these works, it may have been difficult for the Applicant to convince the Tribunal that the noise levels are acceptable. However, Mr Burton's evidence, as an experienced acoustic engineer, is that the requirements of SEPP N-1 will be met once these remedial works are incorporated. Under cross examination, the credibility of his evidence was not compromised.
4. Whilst we acknowledge that neighbours living in Muir Street may from time to time hear noise from activities on the site, including reversing vehicles and pump operation, we expect that these will be relatively infrequent events and not incompatible with the reasonable amenity expectations in an inner urban environment adjacent to a hospital.

Will the proposal cause any unacceptable safety issues?

1. We have noted above that Mr Kemm:
   • conceded during cross-examination that his setback calculations required correction; but
   • maintained that the proposed storage tanks would (even with this correction) be fully compliant with the relevant statutory regime, with the one exception of the filling point, which he recommended be moved further south so as to be no greater than 6 metres from the likely location of the tanker connection;
   • with this amendment, gave evidence is that the filling point arrangements, though not fully compliant, would nevertheless be within the acceptable parameters set out in the relevant statutory regime.
2. Based on the evidence before us, and our approach as set out earlier in our preliminary comments, we reject any suggestion that:
   • the proposal must go beyond statutory compliance and instead achieve undefined "best practice"; or that
   • we should adopt "murphy's law" or a "worst case scenario" and insist that risk be totally removed.
3. Rather, we agree with the Applicant that we should give a high degree of weight to whether or not the expert evidence presented to us is that the proposal will comply with the applicable statutory regime for the storage for dangerous goods. It is critical to our discretion on this issue that the Applicant has called an experienced and suitably qualified expert witness who has given evidence that:
   • with one exception, even applying the more rigorous setback requirements, the proposal fully complies with the statutory regime;
   • in relation to the exception of the filling point, the situation is still within the acceptable parameters provided for in the statutory regime;
   • the proposed oxygen storage compound has the additional protection of a surrounding fire wall, bearing in mind that pure oxygen (whilst it supports combustion) is a non-flammable gas.
4. For these reasons, we accept Mr Kemm's evidence in regard to safety issues. In relation to his cross-examination by the neighbours, in our view much of the questioning was around the edges of the debate, rather than challenging Mr Kemm's core position. Mr Tregloan told us that he is an Associate Professor of Chemistry working at Melbourne University. We accept that he has experience working with gases, but equally he acknowledged that he is not an expert in dangerous goods storage and that the proposed facility is in the open air not in a laboratory. Much of his submission and questions were premised on "worst case scenarios", leaving them open to the criticism that his submission unduly concentrated on potential catastrophes[36].
5. Whilst we acknowledge at a personal level why Mr Kennon may be unhappy at the prospect of the rear of his property being in relatively close proximity to an oxygen storage tank, we see no credible evidence (even allowing for Mr Kennon's cross-examination of Mr Kemm) that the proposal would cause any unacceptable safety risks to the occupants of Mr Kennon's property or the use of the rear laneway. For example:
   • in the event that the pressure release value of the storage tank operates to relieve excess pressure, we note Mr Kemm's evidence that when this occurs, the oxygen quickly and easily dissipates into the nearby air, given the openness of the compound; and
   • if someone in the lane was smoking, Mr Kemm's evidence was that the set back of the vessel in excess of five metres from the edge of the lane satisfies the minimum setback requirement in relation to potential sources of ignition. The vessel has the added protection of a fire wall.
6. Mr Andrew Williams[37] sought to rely on the alleged failure of the proposal to comply with various more generic criteria of AS1894 as supporting a refusal of the oxygen storage tank proposal. However we share the view of Epworth Healthcare that it is appropriate to give greater weight to the proposal's degree of compliance with AS1894's more prescriptive requirements which can be assessed with more precision. Following this approach, we accept the expert evidence of Mr Kemm that the new oxygen storage facility will be compliant with AS1894.
7. In summary, the Applicant has provided the Tribunal with sufficient credible evidence to satisfy us that the new oxygen storage facility will be fundamentally safe in its operation. This finding is reinforced by the advice from Mr Townshend that Epworth Health already has a daily monitoring program in place for the existing oxygen storage facility tank by both inspection and remote alarms. This regime will continue for the new tank. Hence, although it is true that the new oxygen storage facility is further from the main hospital, we accept that there will still be an active monitoring program in place. It is also clear that there would be severe consequences for the hospital if its oxygen supplies were threatened, and on this basis it seems reasonable to assume that the hospital will manage this aspect of its operations with a high level of rigour.

Should the new oxygen storage facility be located on the main hospital site?

1. The new oxygen storage facility on the Elim site will primarily, if not solely, serve the main hospital site. Hence the proposal involves the installation of pipes under Erin Street to transfer the oxygen. The neighbours submitted that this is inappropriate and urged us to find that in principle the oxygen storage facility should be located on the main hospital site.
2. In response, Mr Townshend tendered a report which investigated potential locations for a larger oxygen storage tank facility. The report recommends the Elim site for the new oxygen storage facility and confirmed that it would not be feasible to install a 30,000 litre tank in the existing tank location. In relation to the two other possible locations for the new facility on the main hospital site which the report considered, one is rejected outright due to inadequate area, whilst the other is achievable only if substantial pre-conditions such as the loss of hospital beds and relocation of other significant existing underground services are met.
3. The Applicant relied on the evidence of:
   • the project architect Ms Thomas and the Epworth Healthcare CEO Mr Kinkade that, based on their knowledge of the project, it would be highly problematic to install and to provide tanker access to a new 30,000 litre oxygen storage tank on any potential locations other than the Elim site;
   • Mr Zimmerle, who explained the current arrangement whereby a 17-19 metre long tanker refilling the existing 10,000 litre vessel on a weekly basis (which is a high refill rate by industry standards) is required to back into the Bridge Road car park entrance, which involves crossing on to the wrong side of that road. Given this awkward situation, Mr Zimmerle confirmed that typically refilling of the vessel occurs between 11pm-3 am, with hospital security staff controlling traffic on Bridge Road, a situation which would be exacerbated with the proposed increase in bed numbers and consequent need to refill the vessel every three days;
   • Mr Kemm, that a new 30,000 litre oxygen storage tank in the same location as the existing tank could not achieve the required separation distances. He also confirmed that the pipe work to carrying oxygen from the new tank under Erin Street would be of copper which is extremely durable.
4. Mr Townshend told us, and it was not challenged by any other party, that the Applicant had considered putting the new oxygen storage facility in the open garden area of the Elim site, but this was not supported by its expert heritage consultant[38] as it was extremely unlikely to receive approval from Heritage Victoria.
5. Relying on the evidence called by the Applicant as summarised above, we find that the oxygen should be capable of being safely piped underground from the Elim site to the main hospital, and that there are no in-principle reasons why we should insist that the new oxygen storage facility be located on the main hospital site. We are satisfied that:
   • both the Elim and the main hospital sites are owned by the Applicant and enjoy existing use rights to operate as hospital;
   • there is no in-principle reason why a particular facility on one of these two sites should not support the operation of other site. Our finding here is reinforced by the evidence of Mr Zimmerle that the oxygen storage facility at St Vincent's Hospital involves the piping of oxygen underneath both Victoria Parade to the Eye and Ear Hospital, and under Fitzroy Street, and that this arrangement operates uneventfully;
   • whilst essentially our role is to judge the planning merits of the particular proposal put before us, it is still appropriate that we give some weight to the strong evidence presented to us that installing and gaining on-going tanker access to a new 30,000 litre oxygen storage tank in any of the other investigated locations on the main hospital site would be highly problematic, if not impossible.

TRIBUNAL'S FINDINGS REGARDING SECTION 87A APPLICATIONS

1. We turn now to the two Section 87A applications. The Applicant seeks to:
   • consolidate all of the necessary planning permissions (including any secondary consents) into one of these existing planning permits, PL09/0084;
   • in due course make arrangements with Council to cancel the other planning permit No PL09/0085, but only after the parties are satisfied that the requirements of this permit either have been satisfied or transferred across.
   • There was no objection per se by Council to this approach.
2. The plans which the Section 87A applications rely upon evolved over the course of the hearing. In particular, by the end of the hearing the Applicant had circulated and wished to rely on a Book 7 set of plans, which incorporate various non-contentious minor design changes and an indication of proposed design changes to the Erin Street façade. The only element of the Section 87A applications which Council now opposes is the relocation of the vehicle entrance of the western hospital car park from Erin Street to Normanby Place.
3. We accept that there is a strong "need" factor in favour of the Section 87A applications. Whilst it was not contested by Council, our site inspection confirmed that many areas of the existing hospital are compromised and we are told fail to meet current health care standards. We also acknowledge the overt local planning policy support for the regional role of the hospital[39], its strategic position within the Bridge Road Major Activity Centre and its excellent access to public transport, which are all factors which support the proposal.

1. In all relevant plans, the bicycle parking area is in the south-west corner of the ground level, with bikes entering from a laneway. Mr McGauran was critical of what he regarded as the sub-standard nature of the revised bike storage area as set out in the Book 1 plans. He expressed the view that in operating a hospital, Epworth Healthcare should be "leading by example" with promoting healthy practices, such as good quality bicycle facilities. By way of example, he pointed out that the bicycle area as shown in the Book 1 plans has no dedicated entrance and apparently no showers.
2. Both Ms Thomas and Mr Govenlock conceded there the bike storage area as shown in Book 1 is inadequate in a number of ways. The Book 7 plans include an improved layout including showers. Two car parking spaces are removed which in turn frees up additional space for bike storage. Mr Townshend indicated that in Book 7 the lack of a dedicated entrance to the laneway was an oversight which could be addressed by a condition, but observed that there are equivalent shower facilities for staff in other areas of the hospital buildings. However, we consider that the provision of conveniently located showers is a strong motivating factor for prospective bike riders.
3. We are satisfied that Mr McGauran's Book 1 criticisms were entirely appropriate[40], and we agree that new or upgraded hospitals should be setting a good example by actively encouraging their staff to use non-car based travel options such as cycling. With the addition of a designated entrance, we accept that the changes are acceptable.

1. Mr McGauran supports the relocation of the Erin Street entrance further to the east, in order to create an at-grade entry point and a clearer link to Bridge Road. However, he expressed concern at the design resolution of the entrance. He considered that the proposed foyer lacked the activation of the earlier design and that the reduction in width and configuration of the north-south and principal east-west corridors made them unacceptable, particularly where this level is the main visitor entry, disabled access is required and retail areas face parts of these corridors.
2. Not unexpectedly, Ms Thomas resisted this criticism, saying that wider corridors simply invite people to fill them. In our inspection we did indeed observe that pieces of equipment frequently obstruct even narrow corridors, but we concluded that this was primarily due to the clearly evident overcrowding of hospital facilities. We consider that at ground floor level this is less likely to occur, and is in any event an issue for management. Under cross-examination, Mr Quigley's defence of the proposed existing four metre main corridor width was muted. He acknowledged that some other major hospitals of comparable or lesser bed numbers had far wider main pedestrian thoroughfares.
3. At the end of the hearing, the Applicant, as part of the Book 7 plans, proposed to widen the north-south corridor to 5 metres and the east west corridor west of the Erin Street foyer to 3 metres, increasing to 4 metres at the lift lobby. These changes were supported by Council.
4. We are not persuaded that these widths are sufficient to provide easy and legible access for hospital users. It seems to us that the clarity of way finding between Erin Street and Bridge Road may be a casualty of the replanning of the upper floors and consequent relocation of the lifts. We accept that there is a strong argument on clinical and ward floors for functionality to take precedence over convenience of occasional users. However, on this level, the proposed uses allow for a more flexible planning regime. With 46,000 patients per annum and rising, pedestrian numbers will be high. We consider that a 6 metre wide north-south ground level corridor should be a minimum, particularly as the existing stair at the bridge road end will necessitate a dog-leg. Similarly, we will require a 4 metre minimum width for the east-west ground level corridor between the Erin Street foyer and the western lift bank. We comment further on the Erin Street foyer below.

Re-location of staff vehicle entrance from Erin Street to Normanby Place

1. The Section 87A applications involve vehicle access to the western staff car park being moved from the current Erin Street entrance ramp to an at-grade vehicle entrance area off Normanby Place. This western car park has two lower levels as well as the ground level. At the lower level it connects to the public parking area accessed off Leigh Place. Mr Townshend indicated that the Applicant was open to a permit condition requirement that a suitable device be installed at this connection point to prevent public access into the staff car parking area.
2. Council advised that when Normanby Place was made a one-way street running south-to-north, it was primarily in response to resident concerns that drivers coming south down Punt Road were using Normanby Place to indirectly but more quickly turn east into Bridge Road. The main hospital site covers most of the eastern side of Normanby Place, with the opposite side mainly period terrace dwellings, a number of which are used as consulting rooms.
3. The evidence of the project architect Ms Thomas and the traffic engineer Mr Hunt is that:
   • Erin Street has a much higher level of pedestrian traffic than Normanby Place, and the proposed relocation improves pedestrian safety and the convenience on the south side of Erin Street;
   • the existing vehicle ramp from Erin Street down to the western car park compromises the planning of both ground and basement levels;
   • if the ramp is removed, the area made available can be used as a pedestrian entry to Rehabilitation facilities and the Executive offices which improves the internal planning of this level.
4. At the end of the hearing, the relocation of the car park entrance was the one remaining design aspect of the Section 87A applications that Council was resisting.
5. We see the "reduced pedestrian conflict" argument in favour of the revised vehicle entrance as somewhat contrived. We share the view of Council that the evidence put forward by the Applicant regarding the existing hospital interfaces with Erin Street does not identify any specific existing conflict on the south side of Erin Street.
6. However, we do accept that it is reasonable to give a high level of weight to the evidence of Ms Thomas and Mr Quigley that internal areas of the hospital should be planned as efficiently as practicable and that it is a more efficient arrangement for drivers to enter the western car park directly off Normanby Place at grade, rather than by a ramp from Erin Street.
7. We also note:
   • both Mr McGauran and the independent traffic consultant who advised Council prior to the hearing, Ms Dunstan of the Traffix Group, did not oppose the revised vehicle entrance in Normanby Place;
   • Mr Hunt's evidence that even with the revised arrangements, the traffic levels on Normanby Place will be very manageable. We see no change to the situation in terms of the strategy to avoid "rat running" along Normanby Place, since it will retain its one-way operation;
   • the fact that the western car park is for the use of the hospital staff and not a public car park makes the expected traffic patterns more predictable;
   • the proposed entrance area off Normanby Place would be essentially at-grade, rather than a ramp arrangement. This in turn means that any potential headlight-glare from exiting vehicles towards the existing dwellings on the western side of Normanby Place should be minimal.

1. The way in which the new hospital responds to its urban setting was a major issue in the hearing. The endorsed elevations, generated from a comprehensive urban design analysis, show a series of four "pavilions" along Erin Street, each comprising three smaller paired terrace-like forms, articulated by framing with strong vertical divisions. These were separated by deep glazed recesses. The design proposed a "layered" façade concept where, within the strong framing elements, differing window configurations and reveal depths could be accommodated in response to the internal requirements. The design sought to moderate the change in height from the surrounding built form by emphasising the lower (3-4 storey) portion by both setting back the upper levels and introducing a change of materials from light coloured stone at the lower levels to increased glazing and zinc cladding above.
2. The elevations now proposed (as shown in Book 1) are difficult to interpret due to the absence of detail and minute scale. However, we were told that the requirements of internal planning had necessitated the effective removal of all recesses, apart from that associated with the new main entrance, in addition to the reduction in upper level setbacks. There is no longer a clear demarcation between the podium and upper levels, because the setbacks have been reduced and materials changed. The modified design instead seeks to articulate the Erin Street façade by introducing a stepped framing device utilizing a variety of differently coloured stone facings. The entrance, now further to the east, is further identified by asymmetrically positioned canopies.

1. Mr McGauren emphasised the need for the Erin Street façade of new hospital to provide an appropriate urban design response to the finer grain of its setting. His evidence is that the changes proposed are unacceptable, partly due to the changes in material, and partly due to the removal of the recesses which had provided visual relief over the long façade. He also considered that the reduced setbacks at the upper levels increased visual bulk, and that some erosion of the two corners and parts of the Leigh Street and Normandy Street facades would provide a better response to the urban setting.
2. In contrast, Mr Govenlock and Mr Sheppard consider that the proposal before us is acceptable. Both emphasised the major activity centre location an important determinate of built form.
3. Mr Govenlock noted the high site coverage and coarse grain characterising the hospital over the last 90 years. He said that Council's approval of the endorsed plans demonstrates its support for the built form and massing. He considers the removal of the setbacks at levels 3-4 acceptable as they are minor, with little impact on built form. He also supported the setbacks at levels 7-8 and the lowering of the building by 580mm. He said that the removal of the setbacks initially proposed for levels 5-6 can be justified, because on balance functionality overrides what he describes as "minor changes and increase in built form and massing." His evidence was that the various materials selected will assist in both articulating and minimising the built form.
4. Mr Sheppard's evidence was that the nature of a major hospital prevents it from "fitting" the prevailing character. He too is satisfied that the proposed façade articulation by using various colours and framing devices is successful in reducing the visual impact of such a large building by breaking up its mass.

1. We accept, as does Council, that the inclusion of the main hospital site in the Bridge Road major activity centre supports substantial redevelopment of the site. Both Ms Thomas and Mr Quigley under cross examination asserted that "function" should determine "form" in the case of a hospital. We accept there is a strong case for hospital buildings to place a high priority on internal functionality- Ms Thomas mentioned the importance of things like flat floor plates that minimise ramping, standardised layouts and sizes of wards that provide a familiar environment for casual staff and the importance of minimising distances of travel in emergency situations.
2. Mr Govenlock, in his verbal evidence, highlighted that in this case there is a very real tension which exists between "function" and "form". We agree with him. We see the resolution of this tension as critical in achieving an acceptable planning outcome.
3. Our attention was drawn to the Ampol House case[41] where the Tribunal allowed the demolition of a heritage listed building, having decided that the Peter Doherty Institute would deliver public health and economic benefits which would outweigh the a loss of the building. Relevantly, the design quality of the replacement building was an issue. The Tribunal accepted that maximising the volume of the building (as is also proposed here) was valid in the circumstances. However, it also found that the proposed design would result in a building of distinction. The same cannot be said of the Erin Street elevations as presented in Books 1 and 7.
4. The State Planning Policy Framework identifies[42] good urban design as a fundamental element of planning. The Yarra Planning Scheme[43] recognises that whilst a large regional facility such as the Epworth is important to the community, its operation and expansion must respond to its local context. In terms of urban design, local policy acknowledges pockets of higher development within the municipality's predominantly low-rise urban form. Strategies to maintain this identity include a requirement[44] for benefits in higher buildings such as (amongst other things) significant upper level setbacks, architectural design excellence and enhancement of the public domain. The objective of ensuring new development contributes to Yarra's urban fabric has a strategy[45] which seeks development which has a particular regard to its urban context and which is designed following a thorough analysis of the site's neighbouring properties and its environs.
5. We are required to determine the appropriate balance between optimising the internal functionality of the hospital and achieving an acceptable urban design response from a large building which may well exist for longer than the 70-80 year period that the previous buildings have been on the site.
6. The Applicant presented considerable evidence demonstrating the convoluted and no doubt painful transformation from the endorsed to the current plans. This involved not only developing a new structural system but also deleting the setbacks at levels 5 and 6 in order to achieve regulatory compliance and functionality whilst maintaining the proposed bed numbers.
7. On the last day of the hearing, Book 7 sought to address the criticisms of the Erin Street façade made by Council. The drawings show an amended treatment of the Erin Street façade, proposing to erode the east and west corners of the building somewhat and to reintroduce some shallow recesses at unequal intervals along the façade, where possible, above level 4. There is no change in the disposition of materials, the Applicant submitting that as a reflection of the new Bridge Road façade treatment, an acceptable treatment would ensue.

1. Notwithstanding the closing submissions of the Applicant on the final hearing day and Council's support for the revised Erin Street façade design as shown in Book 7, we do not consider the design as presented in Book 7 achieves a meaningful breakdown of such a long façade, which rises to between 4 and 6 levels before setbacks are introduced.
2. We note that the most recent correspondence from Gadens lawyers[46] on behalf of the Applicant includes the statement (with our highlighting) that "As canvassed at the Hearing, the overarching design imperative is to protect against bedroom loss by ensuring that recesses may be located in areas that will not affect bedrooms".
3. This statement reflects the Applicant's case at its highest ie that the revised Erin Street façade needs to be subservient to the imperative to optimise the internal layout of the hospital and avoid any loss of beds at all. However we see this argument as over-reaching and failing to recognise the need for the "appropriate balance" as described several paragraphs above. The strong "need" aspect of the proposal does not justify a "designing from the inside-out" approach that slavishly focuses on the need to preserve every one of the proposed 777 beds in the manner put forward[47].
4. We consider that the reintroduction of meaningful recesses (a minimum of 3.5 m x 3.5m) is necessary to achieve a degree of separation between sections of the façade. It appears from the latest floor plans that inserting four recesses more or less evenly along the length of the Erin Street façade would, with some internal replanning, result in the loss of 1 bed per levels 4, 5 and 6 as currently laid out. At level three the introduction of recesses will certainly impact on a number of rooms, but as the variety of plans put to us demonstrates, the architects clearly have the capacity to surmount considerable obstacles to achieve functionality.
5. In addition to the need for the four recesses referred to above, whilst we are not putting forward any mandatory requirement for additional "stepping in" of the Erin Street façade, we do see a need:
   • to achieve a clearer visual distinction between the lower (up level 4) and higher sections of this façade area using colour and finishes or a shadow line; and
   • subject to the bullet point above, for a general simplification of the use of materials on this façade

with the overall aim of making the façade a bit less "busy" and using lighter materials to make the upper levels more visually recessive.

1. To the extent that the Applicant sought to justify its proposed new Erin Street façade by reference to the existing Bridge Road hospital façade, we consider the connection between same to be a tenuous one. Our site inspection confirmed that the existing Bridge Road façade is far smaller in extent, has a considerable "above podium" setback and inhabits a quite different urban environment. Simply repeating a similar treatment on the northern façade of the hospital fails as a response to the differing context of Erin Street.
2. A problematic aspect of the long interface with Erin Street is that, with a fall of 7 metres from east to west, the elevation treatment is simply elongated vertically, rather than reflecting the topography in the way that that is characteristic of nearby built form. This has no doubt arisen from the need to both maximise the building volume and mask the extent of the upper levels, and was also present on the endorsed plans. This treatment results in a harsh interface with Leigh Place, and particularly when viewed from further to the east. We accept that the Leigh Street streetscape is a less sensitive one compared to Erin Street, but we agree with Mr McGauren that the new link between the existing and new buildings presents an opportunity to enliven this façade, an opportunity we consider should be explored in terms of use of a change in materials, colours and/or setback to provide greater visual interest and articulation to this frontage. To be clear, whilst a varied setback might be an option for this "link area", we expect that (with some good expert design input) the enlivenment we are seeking should alternatively be achievable by the use of colour or changes in materials.
3. The façade facing Normandy Place is both shorter and also terminates at the consulting suite building which is setback from the street edge and thus defines the end of the northern redevelopment. We consider this acceptable.
4. We acknowledge the Applicant's request for greater flexibility in the precise location of the recesses put forward in the Book 7 plans[48]. Given the urban design imperative to achieve an appropriately responsive façade to Erin Street, we see this request as introducing a level of uncertainty that is inappropriate and overly laissez faire. However in seeking to strike an appropriate balance, we have sought to indicate with precision those further changes to the Erin Street façade which we are requiring, whilst still allowing the opportunity for the project architect and Council's urban design consultant to resolve the design details.
5. In summary, whilst we are unconvinced that the Book 7 treatment of the proposed Erin Street façade is acceptable, we have sought to strike a fair balance between "form" and "functionality" in the further design changes we have required by way of additional Condition 1 sub-clauses in the Appendix 2 permit conditions. We have confidence that a satisfactory resolution of this tension is achievable in the final plans put forward for endorsement. For this reason, the conditions provide the opportunity for further design input from the project architects and Council's urban design advisor.

1. The landscape treatment of Erin Street along the north face of the building proposes an extension of the footpath to 5 metres, within which sit areas of indented car parking and water sensitive planting pits for advanced tree specimens. Seating will be provided. We accept Mr Atkinson's evidence that these works will enhance the character and amenity of this interface.
2. We have already indicated our concern about the architectural treatment of the main hospital entrance. We consider that as currently configured it is confusing. To the east, the fire escape stair disgorges into an irregularly shaped paved area, whilst to the west a zigzag route enters the large airlock from which the foyer is entered. The differing widths of the two recesses and the projecting airlock which make up the pedestrian experience of the entrance, add to the visual confusion. The variously sized and off-centre canopy elements exacerbate this confusion. We consider that this entry treatment requires redesign to both improve legibility and provide an appropriate entry to the hospital.
3. A consequence of the necessary revisions of the internal planning is that the size of various internal courts has been reduced. Many are now akin to light wells serving patient rooms on the upper floors, whilst the courtyard at ground floor still provides a welcome open space. Other than the changes we have required, we are satisfied that the Applicant's detailed landscape proposals in response to the hospital's requirements will result in an acceptable outcome for these internal areas.

1. In summary, we have concluded that changes are required to the façade treatment, but we are confident that an acceptable outcome can be achieved (with further design input from Council's urban design advisor) through the further changes we have required. In particular, we have amended the Appendix 2 Condition 1 sub-clauses to require the following:
   • the breaking down of the Erin Street façade into five visually separate components by the incorporation of four recesses of at least 3.5m x 3.5m;
   • a clearer visual distinction between the lower (up to level 4) and higher sections of the Erin Street façade;
   • additional erosion of the east and west corners of the building beyond that shown in the Book 7 plans;
   • a general review of the Erin Street façade materials and detailing;
   • a more legible and less confusing pedestrian entry from Erin Street;
   • an enlivement of the "link" aspect of the Leigh Street façade; and
   • wider ground level pedestrian thoroughfares.
2. To the extent that either Council or the objector neighbours raised any other issues beyond those which we have discussed above, we regard them as peripheral and to not require any further comment.
3. For the reasons set out above, we have:
   • approved the proposed oxygen storage facility on the Elim site(including the further recommendations of Mr Burton and Mr Krumm);
   • allowed the Section 87A Application, with reliance upon the Book 7 plans and the further design changes we have required

in both cases subject to the permit conditions set out in Appendixes 1 and 2 to this decision.

Buildings and works associated with a proposed oxygen storage facility and associated works and alteration to an existing vehicle crossover, generally in accordance with the endorsed plans provided for.

1. Before the development starts, 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 Drawings Nos. AR-AO-001 Rev 2, AR-AO-200, AR-AO-201 Rev 2, AR-AO-202 Rev 1, AR-A1-001 Rev 3, AR-A1-003, AR-A2-200 Rev 1, AR-A5-002 Rev 1, AR-A5-101 Rev 1 and AR-A6-001, prepared by Silver Thomas Hanley all dated April - June 2012 together with the landscape plan Drawing No. ola01 Revision E dated May 2012 prepared by Outlines landscape architecture but modified to show:

1. exact details of the pipes under the road (location, depth and size) and a clearer indication of the location of the pipes leading from the oxygen storage compound south to Erin Street; 2. details of the modified crossover (demolition and construction plans);

1. details of the demolition and construction works under Erin Street, confirming the materials of the road, kerb, channelling and footpath will match existing conditions;

1. acoustic treatments generally in accordance with AR-A1-001 (Rev 05), AR-A1-003 (Rev 02), AR-A2-200 (Rev 02), AR-A5-002 (Rev 03) and AR-A5-101 (Rev 03) prepared by Silver Thomas Hanley. To the extent that there is any inconsistency with the plans nominated above, these plans shall prevail; 2. internal driveway realignment to facilitate forward entry and forward exit of a semi-trailer into and out of the site generally in accordance with Concept Layout Plan prepared by Cardno and any consequential changes to the architectural plans; 3. removal of the reference on any architectural plan to the relocation of the existing gas meter; 4. the following amendments to Drawing No. AR-AS-200 Rev 2. Where in the notations near the "fill point" the words "acoustic louvres" appear several times, in each case change this to instead read "acoustic seals"; and 5. a modified location for the "fill point" which is compliant with Australian Standard AS1894.
2. All development and use must accord with the endorsed plans. Any alterations must be approved in writing by the Responsible Authority.
3. Prior to the commencement of any demolition or construction works under Council owned land the permit holder must submit relevant plans and working schedules for the approval of relevant Council departments all to the satisfaction of the Responsible Authority.
4. Before the development starts, a Traffic Management Plan, prepared by a suitably qualified expert to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the report will be endorsed and will then form part of the permit. The plan must detail how oxygen deliveries will be managed in consideration of pedestrian, vehicle and semi-trailer conflicts.
5. Before the development is completed or by such later date as is approved by the Responsible Authority in writing, the landscaping works shown on the endorsed landscape plan prepared by Outlines Landscape Architecture in drawing no. ola01 dated May 2012 Revision E must be carried out and completed to the satisfaction of the Responsible Authority.
6. The landscaping shown on the endorsed landscaping plan in condition 5 must be maintained to the satisfaction of the Responsible Authority.
7. Oxygen deliveries may only occur a maximum three times per week, unless with the prior written consent of the Responsible Authority.
8. Oxygen deliveries may only occur between the following times unless with the prior written consent of the Responsible Authority:
   • Monday to Friday - 7.00 am and 6.00 pm; and
   • Saturday - 7.00 am and 1.00 pm
9. Oxygen must be transferred under the road to the hospital in gaseous form.
10. Any damaged road(s) and footpath(s) adjacent to the development site as a result of the approved development must be reinstated to the satisfaction of the Responsible Authority.
11. The vehicle crossover must be constructed in accordance with Council's Vehicle Crossing Standards, unless otherwise approved by the Responsible Authority.
12. The siting and design of the oxygen storage vessel must comply with Australian Standard AS1894 entitled "The Storage and Handling of Non-Flammable Cryogenic and Refrigerated Liquids 1997".
13. Once developed, the facility approved by this permit must operate in compliance with the relevant requirements of the State Environment Protection Policy N-1 (Control of Noise from Industry, Commerce and Trade).
14. This permit will expire if one of the following circumstances applies:
    1. the development is not started within two years of the date of this permit;
    2. the development is not completed within four years of the date of this permit.

The Responsible Authority may extend the periods referred to if a request is made in writing before the permit expires or within three months afterwards.

Development of the land including partial demolition for the purpose of a hospital and medical centre (with existing use rights), a car park, food and drink premises (coffee shop) and a reduction in the car parking requirement, in accordance with the endorsed plans

1. Amended plans to the satisfaction of the Responsible Authority (with the consultation indicated below) 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 prepared by Silver Thomas Hanley Architects, entitled 'Epworth Hospital Richmond Redevelopment, Volume Ten, Amended Plans May 2012' but modified (in consultation with the project architect and the Responsible Authority's nominated urban design advisor) to show:

1. The following changes as shown in the Book 7 plans prepared by Silver Thomas Hanley architects dated 24 October 2012 ("Book 7 Plans"):
   • The new "Retail" area near the ground floor Bridge Road entrance and the revised bicycle storage and change facilities as shown in Drawing No. TP-01-001 Rev. E, provided that there shall in addition be a dedicated entrance door for cyclists entering this storage area from the adjacent laneway;
   • Subject to any consequential changes required by sub-clause (g) below, the revised stairway to the west of the Erin Street ground floor foyer and the revised courtyard stairway to the south-west of the ground level auditorium as shown in Drawing No. TP-01-001 Rev. E, together with all consequential changes to the upper levels of both stairwells;
   • The revised treatment of the Level 4 plant/void area as shown on Drawing No. TP-01-004 Rev. G;
   • The additional set back of the central deck area located to the north of the Level 7 auditorium as shown on Drawing No. TP-01-007 Rev. G;
2. A north-south link along the eastern side of Level 3 (the Leigh Street link), generally in the same manner as the equivalent link provided for with Levels 2, 4 and 5;

1. The breaking down of the Erin Street façade into five visually separate components by the incorporation of four recesses of at least 3.5 x 3.5 metres;

1. A clearer visual distinction between the lower (up to Level 4) and higher sections of the Erin Street façade through the use of colour, materials and/or articulation;
2. Additional erosion of the north-east and north-west corners of the new northern building beyond that shown in the Book 7 Plans;
3. Subject to sub-clauses (c) and (d) above, a review of wall detailing and materials for the Erin Street façade to increase the level of articulation;
4. A more legible ground level pedestrian entry area from Erin Street, including without limitation a more direct pedestrian entry, direct alignment of entry canopies, and a review of the design of the fire escape courtyard;
5. A revised treatment of the new "link area" aspect of the eastern façade facing Leigh Street, to add further visual interest through the modified use of colours, materials and/or a variation in setbacks;
6. The installation of a device to prevent entry from the Leigh Place public car park to the Normanby Place staff car park;
7. The ground level internal pedestrian corridors changed as follows. The main north-south corridor area must have a width of six metres, and the main east-west corridor area must have a width of four metres (including any consequential internal layout changes to facilitate these increased widths);
8. All consequential modifications (eg internal layout changes) to all architectural plans arising from the specific changes set out in sub-clauses (a) to (j) above. At the election of the permit holder, this may include provision for an equivalent number of patient rooms so as to compensate for those bedrooms lost as a result of the (a) to (j) design changes, thereby still achieving an overall outcome of approval for 777 hospital beds;

1. Detailed design of the bicycle parking and change room area;

1. Security measures and separate access to the bicycle parking and change room area; and
2. A reconciled set of endorsed plans under this Permit (being Permit No. PLO9/0084) and Permit No. PL09/0085 and any necessary endorsed reports forming part of Permit No. PL09/0085.

• Fully dimensioned drawings including internal ramp grades in accordance with AS2890.1-2004 (including RLs for each level), all access ramps to the road network, dimensioning of car spaces and access aisles to be in accordance with Clause 52.06-3.

1. A review of headroom clearance to achieve 2.2m wherever practical within the existing carpark and ensure that a headroom clearance of at least 2.2m is achieved within the new car parking areas.
2. Provision of disabled parking bays of suitable dimensions.
3. Plans detailing the proposed control points, location of equipment and available storage areas to ensure the proposed arrangements do not obstruct vehicle access to the site or footpath/roadway areas.
4. All new vehicle crossing servicing the development as being constructed in accordance with City of Yarra Standard Drawings and Specifications.
5. Finished floor levels relative to the existing footpath and road levels being such that pedestrian and vehicular access accord with Australian Standards.
6. Confirmation that all redundant vehicle crossings are to be reinstated with paving, kerb and channel and to Council's specifications.

1. Confirmation that ambulance bay design, layout and access arrangements are adequate.

1. The provision of at least 9, on street, pick up/drop off car parking spaces along the Erin Street frontage near the main, central entrance of the site, 3 near the Epworth Centre entrance and 3 near the ambulance department entrance.

1. The new Leigh Place, two-way carriageway having a minimum width of 6m with pedestrian refuge spaces along Leigh Place west, clearly defined.

1. The first 6m of the ramp inside the building line to be at a grade no steeper than 1 in 20 as per the Australian/New Zealand Standard.
2. The kerb works at the new car park access along Leigh Place in accordance with the linemarking plans prepared by Cardno Grogan Richards in drawing no. CG108440, Sheet T 13).
3. The location of the boom gates to the entry at Normanby Place to be no less than 6 metres from the property boundary.
4. Appropriate sightlines for pedestrians off Normanby Place;

1. Threshold treatment (including kerb outstand and raised pedestrian crossing at the Normanby Place and Erin Street intersection to give priority to pedestrians using Erin Street and provide improved sight distance to cars approaching along Normanby Place in accordance with recommendations of Traffix Group dated 14 September 2012.

1. Ground tactile surface indicators are to be installed at all required locations (near building entrances, vehicle crossings and any hazards to pedestrian mobility) in accordance with the Australian/New Zealand Standard AS/NZS 1428.4:2002.
2. Confirmation that the width of the new footpath will be consistent with the requirements set out in the Australian Standard AS 1428.2 - 1992.
3. The footpath should be graded at all pedestrian access points to have a cross-fall that is suitable for wheelchair access.
4. Telecommunication pits are to be upgraded and asbestos pit surrounds (if applicable) to be disposed appropriately.
5. Any trenching and excavations for underground utility services are to be completed prior to commencement of road works.

1. Waste and recycling material will be stored on-site in the storage area adjacent to the existing loading dock.

1. A plan notation confirming that all waste is to be collected via the Bridge Road loading dock area and will be undertaken using a private waste management service.

1. A landscape plan drawn to scale with dimensions generally in accordance with the 'Landscape Concept Plan for Epworth Richmond Hospital Redevelopment' prepared by Urbis dated May 2012. Three copies are to be provided.

1. A plan notation indicating all plant and equipment will be adequately screened and acoustically treated.

1. All development must accord with the endorsed plans unless with the prior written consent of the Responsible Authority.
2. All new on boundary walls must be cleaned and finished to the satisfaction of the Responsible Authority.
3. All buildings and works must be maintained in good order and appearance to the satisfaction of the Responsible Authority.
4. Floor levels shown on the endorsed plan(s) must not be altered or modified without written consent of the Responsible Authority.
5. Any road(s), footpath(s) or infrastructure damaged during the execution of construction works must be rectified by the permit holder, at their cost, prior to completion of the development and to the satisfaction of the Responsible Authority.
6. Before the occupation of the development or by such later date as is approved by the Responsible Authority, all landscaping works must be carried out and completed in accordance with the endorsed landscaping plan to the satisfaction of the Responsible Authority. The landscaping shown on the endorsed plans must thereafter be maintained to the satisfaction of the Responsible Authority.
7. All street works shown on the endorsed plans must be completed prior to completion of the development, where practical and must be paid for by the permit holder. All works must be undertaken to the satisfaction of the Responsible Authority.
8. The development, once commenced, must be completed, to the satisfaction of the Responsible Authority.

1. Prior to the occupation of the development, a Car Parking Management Plan to the satisfaction of the Responsible Authority must be prepared by a suitably qualified professional and must be submitted to and approved by the Responsible Authority generally in accordance with the Car Park Management Plan prepared by Cardno dated 23 May 2012 (Version F01).
2. Where new floor area is occupied prior to the completion of all basement carparking, carparking must be provided at the agreed rate (as set out in the Cardno Grogan Richards Traffic Report 2008, 11th February 2009) for the net new, occupied floor area. In addition, any existing carparking that has been demolished must be replaced. Replaced carparking may include temporary, off-site carparking to the satisfaction of the Responsible Authority.
3. A minimum of 6, on-street drop off/pick up parking spaces along the Erin Street frontage of the site must be maintained as public parking spaces outside the hospital's core business operation hours, to the satisfaction of the Responsible Authority.
4. Within 6 months after the completion of the development works, a suitably qualified Traffic Engineering firm must be engaged, in consultation with Council's Strategic Transport Unit, to undertake an assessment of traffic conditions along Erin Street, Leigh Place, Normanby Place, Moorhouse Street and Muir Street to the satisfaction of the Responsible Authority. Following the completion of the traffic assessment, any recommended traffic works identified within Erin Street, Leigh Place and Normanby Place that are directly attributable to the hospital expansion must be carried out and completed at the permit holder's expense and to the satisfaction of the Responsible Authority.

1. Prior to the occupation of the development, a Green Travel Plan to the satisfaction of the Responsible Authority must be prepared by a suitably qualified professional and submitted to the Responsible Authority for approval. When approved, the plan will be endorsed and will then form part of this permit. The plan must include but not be limited to:

1. how alternative, non-private vehicle transport modes will be encouraged and ensured for both staff and visitors; 2. how private vehicle based transport modes will be discouraged;.

1. specific targets to guide the green travel plan's ongoing implementation;

1. identification of persons responsible for the implementation of actions; 2. estimate timescales and costs for each action; and 3. inclusion and details of monitoring and review mechanisms of the Travel Plan and its aspirations.
2. The permit holder must ensure that the undertakings outlined within the endorsed Green Travel Plan are complied with at all times, to the satisfaction of the Responsible Authority.

1. Within three months of the date of this permit, excluding temporary sheds or structure for construction purposes, demolition, bulk excavation and site preparation and retention works, piling, footings, ground beams and ground slab, or otherwise agreed in writing by the Responsible Authority, a report from a recognised environmentally sustainable building consultant must be submitted to and be approved by the Responsible Authority generally in accordance with Environmental Sustainability Design Planning Submission prepared by Umow Lai Pty Ltd dated 31 March 2010 (Revision 7).

1. Collection of waste must be conducted so as not to cause any disturbance to nearby residential properties and may only occur via Bridge Road to the satisfaction of the Responsible Authority.
2. The loading and unloading of vehicles must be carried out entirely within the site to the satisfaction of the Responsible Authority.
3. The loading bay must be kept clear at all times for reception of goods to the satisfaction of the Responsible Authority.
4. All bins and receptacles used for the collection and storage of garbage, bottles and other wastes must be kept in the designated storage area to the satisfaction of the Responsible Authority. This storage area must be:
   1. properly formed and adequately drained; and

b maintained in a clean and tidy condition free from offensive odours.

1. The development, including plant, equipment and associated activities must at all times comply with the State Environment Protection Policy N-1 (Control of Noise from Commercial, Industrial or Trade Premises, to the satisfaction of the Responsible Authority.

1. Provision must be made for the drainage of the site including landscaped and paved areas all to the satisfaction of the Responsible Authority.

1. Within three months of the date of this permit, a Construction Management Plan to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the plan will be endorsed and will then form part of this permit. Construction must be carried out in accordance with the endorsed plan to the satisfaction of the Responsible Authority. The plan must address, but not be limited to the following:

1. site contamination and disposal of contaminated matter; 2. containment of dust, dirt and mud within the site and method and frequency of clean up procedures ensuring the build up of matter outside of the site will be rectified immediately;

1. on site facilities to adequately treat and clean vehicles entering and exiting the development during construction to minimise impact of dust and dirt and construction material on roads in the surrounding area;

1. parking facilities for construction workers; 2. delivery and unloading points and expected frequency; 3. two liaison officers for contact by residents and the Responsible Authority in the event of relevant queries or problems experienced. One liaison officer must be an Epworth Hospital staff member and one must be a building company employee; 4. an outline of requests to occupy public footpaths or roads, or anticipated disruptions to local services; 5. a communication strategy to ensure the local community is kept up to date in relation to construction matters; 6. a waste minimisation and recycling strategy; 7. the provision of a minimum of at least 10, on-site car parking spaces for residents of Leigh Place or Normanby Place in the event access to their properties/parking is interrupted because of construction requirements; 8. providing a dilapidation report, prepared by a suitably qualified person or firm to assessing the subject property and adjacent road infrastructure along Leigh Place, Normanby Place and Erin Street. The report must assess the road infrastructure photographed and documented; and

1. any measures required for interim or temporary management, access, car parking or other arrangements.
2. Before the development starts for an agreed area, a noise and vibration management plan to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority for that area. When approved the plan will then form part of the permit. The noise and vibration management plan must show methods to minimise noise and vibration impacts on nearby properties and to demonstrate compliance with Noise Control Guideline 12 for Construction (Publication 1254) as issued by the Environment Protection Authority in October 2008. In this regard, consideration (amongst other matters) may be given to:

1. using lower noise work practice and equipment the suitability of the site for the use of an electric crane; 2. mitigating noise from all mechanical plant by the best practical means using current technology; and

1. fitting all pneumatic tools operated near a residential area with an effective silencer on their air exhaust port.
2. During the construction phase of the development, the following conditions must be met:

1. only clean water is to be discharged to the stormwater drainage system; 2. stormwater drainage system protection measures must be installed as required to ensure that no solid waste, sediment, sand, soil, clay stones from the premises enters the stormwater drainage system;

1. vehicle borne material from the premises must not accumulate on the roads abutting the site;

1. all machinery and equipment must be cleaned (if required) on site and not on adjacent footpaths or roads; 2. all litter (including items such as cement bags, food packaging and plastic strapping) must be contained within the site boundaries, and disposed of responsibly; and 3. all site operations must comply with the Environmental Protection (Residential Noise) Regulations1997.
2. Except with the written consent of the Responsible Authority, demolition or construction works must only be carried out between: 7am-6pm, Monday-Friday (excluding public holidays) and 9am-3pm, Saturday and public holidays. No work is to be carried out on Sundays, ANZAC Day, Christmas Day or Good Friday without a specific permit. All site operations must comply with the relevant Environmental Protection Authority's Guidelines on Construction and Demolition Noise.
3. This permit will expire if the development is not completed within nine years from the date this amended permit is issued.

The Responsible Authority may approve an extension of time if a request is made before expiry or within three months after expiry.

[1] [2011] VCAT 1627

[2] See paragraph 41 of the Council Delegate Report provided to the Tribunal under cover of the Council letter dated 3 October 2012.

[3] See paragraph 1 of the written Open Submissions from the Applicant.

[5] See Clause 21.04-4 of the Planning Scheme.

[6] The June 2012 Council Delegate Report puts this distance at 194 metres, as does the report of the expert landscape witness Mr Atkinson at page 10. The plans are unable to be scaled accurately.

[7] This term was used for example by Mr Govenlock in presenting his verbal evidence to the Tribunal.

[8] For example, during our site inspection on 17 October 2012, we were told that the hospital was 100% full. The evidence of the Epworth Healthcare CEO Mr Kinkade during the hearing was that this hospital typically operates at a 95% occupancy level.

[11] [2011] VCAT 1627

[12] (1986) 4 PABR 334

[13] See paragraphs 5-15 of the Delegate Report provided to the Tribunal under cover of the Council letter dated 3 October 2012.

[14] Being permits PL09/0085 (Stage 1) and PL09/0084 (Stage 2) dated 1 February 2010.

[15] See paragraph 41 of the Delegate Report provided to the Tribunal under cover of the Council letter dated 3 October 2012

[16] See the last bullet point of Clause 43.01-2.

[17] At pages 13-14 of the Applicant's opening submissions a summary is provided of the current project architect Ms Thomas' opinion of the defects of the endorsed plans under the February 2010 approvals.

[18] There is a useful outline of these health system regulatory requirements at pages 11-12 of the Applicant's opening submissions.

[19] The Applicant submitted one of these, being the "Oxygen Vessel Location Option Report" prepared by Lehr Consultants in 2009

[20] Under cover of Council's letter dated 3 October 2012

[21] For example the relocation of the florist to the Bridge Road entry and amendments to stair locations.

[22] Popular Pastimes Pty Ltd v Port Phillip CC (Red dot) [2008] VCAT 1184.

[23] Batman v Melbourne CC (Red dot) [2011] VCAT 1477, paragraph 19.

[24] [2004] VSC 375

[25] [2011] VCAT 2360

[26] (Red dot) [2012] VCAT 1038

[27] Noting that no planning permission is required for the tree removal and all parties agreed that the trees are poor specimens.

[28] See Heritage Victoria permit No. P12709 (as amended) first issued on 11 February 2011 and updated on 18 October 2012.

[29] He conceded during cross-examination that some of the separation distances were one metre longer than shown in his report, because his report had not taken into account the fact that the total new oxygen supply (including the back up tank) would be 33,000 litres, not 30,000.

[30] See the Dangerous Goods (Storage and Handling) Interim Regulations 2011.

[31] We refer here to the Storage and Handling of Non-flammable Cryogenic and Refrigerated Liquids (AS 1894) 1997.

[32] See page 9 of Mr Atkinson's landscaping report.

[34] We estimate this new rear paling fence to be about 2.5-3 metres high.

[36] We make the same observation in relation to Mr Kennon's line of questioning about potential vandalism or even terrorist attack.

[37] In a written objection dated 6 October 2012

[38] We were provided with a copy of the 6 April 2010 report by Lovell Chen heritage consultants.

[39] See Clause 21.04-4 of the Yarra Planning Scheme.

[40] We consider that the Book 1 bicycle storage facilities were totally inadequate.

[41] University of Melbourne v Minister for Planning [2011]VCAT 469

[46] See the Gadens letter of 9 November 2012.

[47] Whilst recognising the very important role this hospital plays, we understand that the target of 777 beds is not a critical absolute figure, but more one calculated by reference to the anticipated day to day operation of the as-expanded hospital. Compare this by contrast with say the absolute minimum width of the proposed widening of a freeway or airport runway, where anything less than the lawful minimum width figure makes the whole project unlawful/unviable.

[48] See the Gadens lawyers letter dated 9 November 2012.