The decision of the Responsible Authority is set aside. In permit application MV/19743/2008 a permit is granted and directed to be issued for the land at 1 Ascot Vale Road, Flemington. The permit allows Construction of a multi storey building for dwellings, serviced apartments, home offices, food and drink premises, convenience shop and restaurant, the use of the land for food and drink premises, convenience shop and restaurant, a reduction in car parking requirements, alteration of access to a road in a Road Zone Category 1, a waiver of a loading zone and associated works in accordance with the endorsed plans and subject to the conditions set out in Appendix A.

Mr Nicholas Tweedie, Barrister, instructed by Evans Ellis Lawyers.

Mr C Townshend , Barrister, instructed by DLA Phillips Fox Solicitors.

The proposal is to develop the land with a 21 level building and to use the building for

219 dwellings, 92 serviced apartments, 6 home offices and retail premises (Food and Drink Premises, Convenience Shop and Restaurant);

Application under section 79 of the Planning and Environment Act 1987 for review of the failure to grant a permit within the prescribed time.

The subject land is a triangular lot located at the intersection of Ascot Vale Road and Epsom Road in Flemington. The land is occupied by the now derelict Racecourse Hotel. The Land has an area of approximately 3700 square metres.

1. This is an application to review the failure of the responsible authority to grant a permit within the prescribed time in respect of a permit application for multi level building for dwellings, serviced apartments, cafes, a convenience shop and home offices at 1 Ascot Vale Road, Flemington.
2. At the commencement of the hearing Mr Canavan applied to amend the permit application by the substitution of amending plans as foreshadowed by notice given in accordance with the Tribunal's practice requirements. No person opposed the amendment of the permit application in this way, and the Tribunal ordered the amendment of the permit application in accordance with Mr Canavan's request.
3. The parties and the witnesses at the hearing of the application for review relied on both written and oral submissions and a number of photographs, plans and other documents were tendered to the Tribunal. The Tribunal inspected the subject land and its locality.

1. The current design has evolved through a complex process which has included changes in the design team and discussions and negotiations with a range individuals and bodies.
2. The original permit application was submitted to council in October 2008. This application sought permission for a 27 level mixed use building[1] for 271 dwellings, 89 serviced apartments, convenience shop, office, take-away food premises and restaurant.
3. This 27 level proposal was the subject of a Priority Development Panel Concept Appraisal in June 2009. The PDP described the concept appraisal process as follows:

The purpose of the concept appraisal is to enable the proposal to be assessed by a multidisciplinary panel of experts with skills and expertise in planning and related fields, such as urban design and architecture, land economics, social research, transport planning and engineering. The PDP's expert advice is intended to accompany the application through the planning permit process and help inform any future decision making.

The PDP did not endorse the 27 level proposal without further design development. However, we think that elements of their conclusion are relevant to the current proposal which has been prepared, in part, in response to their observations ie:

There is strong policy support within State and Local Planning Frameworks for substantial mixed use development to occur in this location and strategic opportunity for a 'gateway' or 'landmark' building to be delivered. The site is strategically located within the Racecourse Road Activity Centre, and sits in a built form context which is expected to undergo substantial change with significant opportunities for medium and high density redevelopment also surrounding the site. Previous planning applications have recognised the strategic opportunity presented by the site for development that delivers housing and other commercial uses and which strengthens the role of the centre - the current proposal should be offered a similar level of policy support. Furthermore, the site is fortunate in that it enjoys a location and orientation such that offsite amenity impacts of a significant development are minimal or can be managed through design.

... Given the strategic location within an activity centre, and position within an evolving built form context, it is suggested that the site should be able to accommodate development of around 20 storeys, subject to design ...

The issue of height should not necessarily be the determining factor in whether the building represents an appropriate urban design response. The quality of design will be critical - particularly the way the building touches the ground. ...

Furthermore, because the development will be visually exposed and the site has such an important role to play in creating an identity for the centre, the redevelopment will need to provide a truly great building of exceptional architectural quality. ....[2]

1. Following the report of the PDP there were changes to the design team and a new plan was developed. In December 2009 an amended permit application was submitted to council for a 24 level building with a similar mix of land uses including 226 dwellings and 99 serviced apartments. The development of this design had included consultation with the State Architect, who in a letter to DPCD concluded:

In general, we feel that the design has certainly improved. The proposed composition of elements and architectural expression is clearer and is supported by improvements at ground level and the public realm. The proposal offers a more considered outcome in terms of urban design and architectural quality and, subject to further monitoring and review of the issues outlined above, is likely to contribute in a positive way to the surrounding precinct.

1. In February 2010 Council gave notice of the amended permit application, 155 objections were received in response. On 10 May 2010 the permit applicant applied to VCAT for a review of Council's failure to grant a permit within the prescribed time. On 15 June 2010 Council decided that it would have refused permission for the 24 level proposal.
2. On 16 July 2010 the Applicant submitted amending plans to the council and others in accordance with the Tribunal's practice requirements. These amended plans are now the subject of this proceeding. The plans propose a 21 level[3] mixed use building for 219 dwellings, 92 serviced apartments, 6 home offices, a convenience shop, cafe and restaurant
3. On 7 September 2010 council ultimately decided in relation to the amending plans it would have refused permission for the following reasons:
   1. The proposal does not comply with Clause 19.03 and Clause 22.13 of the Moonee Valley Planning Scheme as the overall scale proposed is out of context for the area and will result in an overly prominent development on the site from the surrounds;
   2. The scale of the development is inappropriate for the site and will overwhelm the streetscape;
   3. The breadth of facade across Ascot Vale Road (including the central tower element) is bulky and a poor design response;
   4. The proposal lacks a discernible podium form towards Ascot Vale Road;
   5. The development is contrary to the strategic objectives outlined within the Racecourse Road Activity Centre Structure Plan (draft);
   6. The proposal fails to provide an appropriate transition in scale to adjacent properties; and
   7. The proposal: an overdevelopment of the site.

1. The subject land is a triangular lot located at the intersection of Ascot Vale Road and Epsom Road in Flemington. The land is occupied by the now derelict Racecourse Hotel. The Land has frontages of 100 metres and 106 metres street to Epsom and Ascot Vale Roads respectively and an area of approximately 3700 square metres.
2. The land is 4 kilometres from the Melbourne CAD and is within the western periphery of the Racecourse Road strip shopping centre, a major activity centre. The land is well served by public transport, Newmarket Railway Station is 700 metres to the east, the Route 57 Tram passes the land on Racecourse Road and Epsom Road and there are several bus routes along Ascot Vale Road.
3. The surrounding area has a very mixed character
   • To the north of the land is a small public housing estate fronting Epsom Road and commercial properties fronting Ascot Vale Road.
   • To the east across Ascot Vale Road are commercial premises and dwellings[4] fronting Ascot Vale Road.
   • To the south across is public open space within the City of Melbourne.
   • To the west across Epsom Road is Flemington Racecourse with the Showgrounds precinct further to the north on the west side of Epsom Road.

The Moonee Ponds Principal Activity Centre is 2.3 km to the north of the site along Ascot Vale Road. This is the primary activity centre for the City of Moonee Valley and offers a range of commercial and retail services.

1. The land is within a Residential 1 Zone. To the north of the site (along Ascot Vale Road) is a Mixed Use Zone. A mixture of commercial zones (Business 1 and 2) extend along the northern side of Racecourse Road. Racecourse, Epsom and Ascot Vale Roads are in the Road Zone Category 1. There are no overlays affecting the Land.
2. The Subject Land is in an elevated position with contours falling steeply to the west beyond Epsom Road then more gently across the racecourse proper to the Maribyrnong River.
3. Existing commercial and residential development within the immediate environs of the land tend to be of modest scale, one to two storeys in height. A significant departure from this norm is Crown Tower a 13 level public housing building about 80 metres east and north east of the land.
4. The subject land and much of the surrounding land is an area in transition, which is anticipated to undergo significant redevelopment in the future in accordance with activity centre policy under the planning scheme.

1. The current proposal is described in the amending plans prepared by

1. The proposal is to develop the land with a 21 level[5] building and to use the building for:
   • 219 dwellings[6];
   • 92 serviced apartments;
   • 6 home offices;
   • retail premises (Food and Drink Premises, Convenience Shop and Restaurant);

• Reduction in car parking requirements;
• Alteration of access to a road in a Road Zone Category 1;
• Waiver of a loading zone;
• Waiver of the shower and change facilities for cyclists[7]; and

1. The plans also include lounge/lobbies, gymnasium, pool/spa, theatre, conference facility, and storerooms associated with the dwellings and serviced apartments but not available to the public.
2. The proposed building is composed of four main elements:
   • A lower 4 Level podium form;
   • A tower form of 21 Levels to the intersection corner;
   • A residential tower of 21 Levels to the centre of the site; and
   • A residential tower of 17 Levels to Ascot Vale Road which wraps around the central tower to the north.

Figure 3 below is a drawing use by the architects to explain how, in their opinion, their approach to the massing of the building using these various elements, results in an appropriately articulated and site responsive building.

1. The significant issues in this application for review are all closely related to the scale and massing of the proposed building i.e.:
   • The height and articulation of the building;
   • The mix and intensity of land uses proposed within the building, and
   • The amenity impacts which arise from the size of the building and the intensity of the proposed land use mix.
2. We discuss these issues in some detail below.

1. Council in its submissions acknowledges that the site shares attributes of a strategic development site[8] i.e:
   • A large residentially zoned land holding in single ownership;
   • Corner site location;
   • Boundary to three arterial roads;
   • Proximity to Racecourse Road Major Activity Centre;
   • Accessibility to the public transport network;
   • Available urban and social infrastructure;
   • SPPF urban consolidation policies; and
   • Recent planning permit for moderate residential development[9].
2. In particular this acknowledgement is undoubtedly rooted in an understanding of the state planning policy framework. In addition to policies which provide for a range of housing types to meet diverse needs and to deliver more affordable housing close to jobs, transport and services, the SPPF provides that:
   1. Major Activity Centres are selected to ensure that they have the potential to grow and support intensive housing developments without conflicting with surrounding land uses[10];
   2. It is planning policy to locate more intense housing development in and around activity centres, in areas close to train stations and on large redevelopment sites[11];
   3. Strategic redevelopment sites are to be identified as sites which are in or within easy walking distance of a major activity centre and able to provide for ten or more dwellings[12];
   4. In addition planning should achieve high quality urban design and architecture that:
      • Contributes positively to local urban character and sense of place.
      • Reflects the particular characteristics, aspirations and cultural identity of the community.
      • Enhances liveability, diversity, amenity and safety of the public realm.
      • Promotes attractiveness of towns and cities within broader strategic context.
      • Minimises detrimental impact on neighbouring properties[13].

The issue is not so much whether or not the site is appropriate for a more intensive form of development, rather it is whether or not this particular proposal is sufficiently site responsive. The question is does this particular development achieve appropriate balance between these diverse aspirations.

1. The subject land and other commercial properties proximate to the subject land in Racecourse Road and Ascot Vale Road tend to be modest single storey buildings which are in most cases are ripe for redevelopment. Similarly, nearby residential streets, in particular to the north of Racecourse Road and east of Ascot Vale Road, are dominated by single storey dwellings developed at the end of the 19th century and in the first half of the 20th century. These streets show signs of considerable renewal.
2. The area[14] including the subject land was described as an area in transition. It could perhaps be more accurately described as an area that will be in transition. The issue in this application is not the response of the building to the established urban character described above, particularly the character of the commercial areas of the activity centre. The real issue is the response of the building to the character which is anticipated to emerge as a consequence of the implementation of activity centre policy under the planning scheme. The subject land is the first significant site which is proposed to be redeveloped, in a way which seeks to implement activity centre policy.
3. The Draft Racecourse Road Activity Centre Structure Plan released for public comment in April 2010 is a document which is at a very early stage of development. The draft structure plan defines the Racecourse Road Major Activity Centre as a centre which extends along Racecourse Road from City Link in the east to Epsom Road in the west.
4. The draft plan:
   • Includes the subject land within the Major Activity Centre, at its western periphery;
   • Identifies the subject land as a major development site on which an iconic building of high architectural quality, 10 to 14 storeys in height, is encouraged;
   • Anticipates new development on the north side of Racecourse Road proximate to the subject land with heights of 6 to 8 storeys, and;
   • Anticipates new development on the west side of Ascot Vale Road proximate to the subject land with heights of 4 to 6 storeys.
5. The subject land is in a topographically prominent position, and a tall building on the site will be seen from a distance. The predominantly low scale character of development in the immediate environs on the site is not entirely uniform, and this is particularly evident from these more distant view points i.e.:
   • Approaching Flemington from Footscray the view to the land across the Maribyrnong River Valley and Flemington Racecourse reveals an essentially low scale built environment punctuated by two towers, Crown Tower, the public housing development only a stones throw from the subject land, and Vue Tower a modern apartment building forming part of the Sale Yard's redevelopment.
   • Somewhat further a field, at the eastern end of the activity centre are the Flemington flats comprising a number of public housing towers and a short distance to the north the proposed 23 level apartment building under development as part of the Lombard redevelopment on Mt Alexander Road.

The proposed building will undoubtedly punctuate the skyline view from more view distant vantage points, but this will occur in context where somewhat isolated taller buildings already punctuate more distant views.

1. It is argued that Crown Tower is serious mistake of the past and should not be used as a precedent for development on the subject land. We agree that Crown Tower should not be a model for development in the established residential streets behind Racecourse Road. Indeed, notwithstanding the degree of change anticipated within the major activity centre, these streets are not likely to experience significant change. Nevertheless, Crown Tower is an established element of the character of the area, and is relevant to the conclusion we reach in paragraph 30.

1. The current architectural plans are the result of a long period of consultation and debate about the design of an appropriate high rise building for the land. Contributors to this debate include the council and its advisers, the PDP, the state architect, and the community through the advertising processes.
2. The building is a relatively slender tower oriented to Ascot Vale Road to the east of the subject land. A principal purpose of this orientation is to minimise the towers impact on the sole residential abuttal to the north west. It is submitted on behalf of the applicant that the outcome is a high quality design with a highly articulated form. The architectural approach to the articulation of the building form is illustrated in the extract from the plans at figure 3.
3. Mr Biles and Mr McGurn essentially conclude that the amended plans have by a process of evolution produced a high quality building which represents an appropriate design solution for the land. Council through its witnesses Mr McGauran and Mr Iles and the objectors who appeared at the hearing have a different view i.e.:
   • Mr McGauran submits that the building should be no more than 16 storeys in height, 16 storeys at the Ascot Vale Road and Epsom Road corner and along Epsom Road and 12 levels to Ascot Vale Road.
   • Mr Iles submitted that the proposed building should remain at 21 storeys at the Ascot Vale Road and Epsom Road corner, while on Epsom Road and Ascot Vale Road the height of the building should be reduced by three levels to 17 storeys and 14 storeys respectively.
   • Resident objectors point to the success of more intensive development in their locality utilising buildings that are three to four storeys in height, essentially arguing that high rise buildings are unnecessary. They regard the proposed building as a monstrous intrusion into their locality, they would probably accept a building in the range of 10 to 14 storeys as proposed in the draft structure plan, as being a lesser monstrosity.
4. Mr McGauran and Mr Iles provided sketches illustrating their recommended modifications to the proposed building. To assist the reader we have cut and paste one of the architects' perspective renderings to illustrate these diverse options, including a 14 storey option reflecting the recommendations of the draft structure plan, see figure 4[15].

1. These divergent opinions illustrate the difficulty in forming an objective view in respect of the appropriate height for a high rise building. The residents appearing at the hearing are correct in observing that three and four storey buildings can sit comfortably in established one and two storey environments. On the other hand, taller buildings, towers in particular, either have to be moderated by intervening buildings which provide a transition in scale or have to be perceived to belong to a different built form context.
2. The land is located within a major activity centre, and in particular is located at the western end of the Racecourse Road activity centre an area which is anticipated to undergo substantial change. We are comfortable that the subject land is appropriate site for a multi level tower. We are also of the view that the design as it has evolved has resulted in a building of high architectural quality.
3. If the building is constructed in the short term, it would be wildly different to any other building in its immediate environs. But, if it is developed, over time other sites on the north side of Racecourse Road or the west side of Ascot Vale Road would be developed with new mixed use buildings ranging in height to at least 8 storeys. This will be the case even if the rather conservative prescriptions of the draft structure plan prevail into the future.
4. The land is a somewhat isolated site, at a complex road junction marked by a roundabout and at one end of a retail and commercial precinct. In our opinion it is a site that can accommodate an large atypical building even without the anticipated change in the surrounding area. The level of change that can reasonably be anticipated makes us comfortable with a building of the height proposed.
5. Mr McGauran was also critical of the relatively limited setback of the Ascot Vale Road tower from the podium structure and advocated modifications to the design to increase that setback. While we accept that this setback is minimal, we note that the project architects have sought to manage the articulation of the podium and the tower through the use of different architectural forms and materials, and observe that a similar approach would ultimately be necessary for the development of sites to the north along Ascot Vale Road, albeit at lower heights, because these sites are generally shallow in depth.
6. Council in its submission construe the PDP report as implying that for a 20 storey building to be acceptable on the land it would need to display truly great architecture. This lead to an essentially unhelpful debate about whether or not this was really the position of the PDP, and what constituted truly great architecture.
7. Ultimately we form the view that the proposal represents a high standard of architecture. The building of the scale proposed has no unreasonable off site amenity impacts. At ground level the building creates an attractive, pedestrian focussed, environment. There is a consensus, or at least an acceptance, that the land is an appropriate site for a multi storey tower. We consider there is no good reason to further modify the design solution developed by the architects in this case.

1. The proposal is a very dense proposal, comprising of a total of 317 dwellings and a mixture of commercial elements, some of which will be open to the public and others will be only for the benefit of the residents and guests staying in the service apartments.
2. The proposed mix of uses is consistent with the State and Local Planning Policy framework which encourages the development of higher density mixed use developments in major activity centres that are well served by public transport.
3. Furthermore, a high density residential development on the site is consistent with the draft MSS, which anticipates that the municipality will require an additional 8,700 dwellings by 2021, and proposes that 5,600 of these dwellings be placed within strategic and major redevelopment sites. Whilst not currently recognised as a strategic or redevelopment site within the Mooney Valley Planning Scheme, it was common ground that the subject site has all the characteristics which would define it as a major redevelopment site. It has been identified as such in the draft structure plan.
4. Given its location, the site can accommodate a large variety of non-residential uses without having a significant impact on the amenity of nearby residents.
5. When assessing whether a site can accommodate a higher density an assessment needs to be made as to whether there is sufficient supporting infrastructure to accommodate such a development.
6. Concern was raised by the objectors that the surrounding infrastructure, particularly the existing road network, could not accommodate a development of this scale. Mooney Valley Council engaged Henry Turnbull of the Traffix Group to undertake a traffic engineering assessment of the proposal. The report concluded that the proposed development would generate 141 vehicle movements per hour in the morning peak, and 169 vehicle movements per hour during the afternoon peak.
7. An assessment of the impact of the additional vehicles on the Racecourse Road/Epsom Road/ Ascot Vale Road roundabout was undertaken by the Traffix Group, which concluded:
   • The roundabout will continue to operate within acceptable limits, with modest increases to queues and delays following development of the subject site
   • Queuing at the roundabout will not impact vehicles accessing the site
   • Site access points will operate satisfactorily with acceptable queues and delays
8. The permit applicant engaged Jason Walsh of Cardno Grogan Richards to undertake a traffic engineering assessment of the project. The report concludes that the proposed development would generate a morning peak of 144 vehicle movements per hour and a PM peak of 157 vehicle movements per day. The report concludes:
   • There will be no significant impact to the operation of Epsom Road including tram movements
   • The development can provide convenient, safe and efficient access to Ascot Vale Road
   • There will be no material impact to the roundabout of Racecourse/Epsom and Ascot Vale Road.
9. We find that whilst there are some differences in the two reports, they are consistent in that they both conclude that the development will not have a significant impact on the function of the road network.
10. With respect to other forms of infrastructure, such as drainage, sewerage and power, we note that none of the service providers have objected to this proposal and the requested permit conditions are generally standard conditions. As such we conclude that the existing infrastructure of the area is adequate to accommodate the development.
11. There was concern raised that the proposed home offices would not provide a high level of activity along the street frontage of Epsom Road and the proposed laneway, encouraged by the State Planning Policy Framework.
12. In considering the mix of uses, it needs to be recognised that the land is within a Residential 1 Zone, and non-residential land uses are limited in this zone. Whilst a larger commercial space on the ground floor may be appropriate for this site, it is prohibited in the zone. It is considered that the proposed food and drink premises and convenience store will provide a greater level of activation along the Epsom Road frontage than that which currently exists. The home office uses will also provide, albeit more limited, a level of activation along this road.
13. The Responsible Authority suggested that there should be a setback within the frontage of the home offices to enable landscaping to occur to provide a buffer between the footpath and the residences. It is considered that this would further diminish the level of activation along Epsom Road, and as such we do not agree with this approach.
14. As such it is considered that whilst the proposal results in a very intensive use of the land, the mixture and intensity of uses is supported by the state and local planning policy framework.

1. During the hearing concern was raised that the building would generate an unacceptable level of wind which would affect pedestrian amenity. The Department of Sustainability and Environment "Guidelines for Higher Density Residential Development" recognises that areas with taller buildings can produce a range of unwanted wind effects, particularly at street level. The document recommends that an expert analysis of wind impacts is undertaken for projects such as that proposed.
2. Wind tunnel tests were undertaken by MEL consultants who recommended the following changes to the design to achieve the criterion for walking comfort:
   • A 15m deep cut-out at the south corner for the first three levels from ground with a canopy at Level 1 (4.5m) going right through the cut-out and out over the canopy at Level 1 (4.5 m) going right through the cut-out and out over the pavements on both sides for 3.5m.
   • A no-go zone with a 10m long, 2m high 50% porosity screen in the middle.
   • A 3.5m canopy at Level 1 running the full length of Epsom Road and wrapping around the north side for about a third of the length.
   • With proposed landscaping (in particular with dense canopy trees along the full length of Epsom Road).
3. These changes are shown on the revised plans. The Traffix Group has recommended that the area at the corner of Epsom Road and Ascot Vale Road be not occupied by seating. Any landscaping or fencing within this area should not be more than 1 metre in height to maximise vehicle sightlines. In his evidence, Mr Turnbull stated that this would create a splay of 5 x 5 metres. The structural pergola, at two metres high would effect sightlines, and clearly this element needs to be refined to enable sightlines, whilst ensuring that wind conditions are acceptable. This can be addressed via permit conditions.
4. The objectors were concerned that the species proposed to be used for the structural pergola, Chinese Jasmine , would not be robust enough to cope with the wind conditions. Detailed landscaping plans identifying the proposed species have not been provided as part of this proposal. Again conditions will require the submission of such plans to the Responsible Authority. A condition will also require the landscaping to be maintained to the satisfaction of the Responsible Authority. This should ensure that if the proposed species does fail then the vine can be replaced with an alternative species.
5. To reduce the wind conditions within the ground floor courtyard, MEL consultants recommended that this area have the ability to be sealed at all but one entrance in strong wind conditions. Revolving doors may be required depending on the level of traffic that uses this space. The architect has proposed sliding doors (identified on the plans as air-locked doors) which would have the ability to be locked at night, for security reasons and during high wind conditions if necessary. It is considered that this is an appropriate response.

1. The proposed mix of uses, particularly the food and drink premises may affect the amenity of the area through noise. The noise levels would be similar to the previous use of the site which was for a hotel. Whilst the Responsible Authority has recommended permit conditions requiring acoustic treatment to the building to limit and transfer of noise and a noise impact assessment by undertaken for the development, we consider that these requirements are onerous given the likelihood that the development will achieve the standards set by the EPA and the Building Code of Australia. A condition of permit will require the various uses to comply with the EPA noise controls. We impose the condition not because we anticipate off site effects but because it is a mixed use building, with future residents who will be concerned to protect their amenity from other users of the building.

1. Some objectors raised concerns that the proposal will unduly overshadow nearby properties. Shadow diagrams provided by the architect indicate that shadows will primarily over the Flemington Racecourse and Newmarket Reserve. Some shadows will fall over the commercial properties along Racecourse Road. No residential properties will be overshadowed by the development between 9am and 3pm at the equinox. Whilst there may be some overshadowing of residential properties beyond this time, in the very late afternoon and early morning, it is considered that there will be no significant impact to the amenity of nearby residents through overshadowing.

1. Concern was also raised with respect to overlooking. The development has been setback 9 metres from the residential properties to the north west. This is consistent with Clause 22.13-11 (Residential Development of Four or More Storeys) of the Mooney Valley Planning Scheme which encourages developments to be designed to avoid overlooking of residential properties, rather than requiring corrective techniques such as screens. By setting the development back 9 metres; no corrective devices are required as the proposal will not unduly overlook the adjoining properties.

1. The Responsible Authority considered that the proposed development fails to provide a high level of pedestrian amenity that would be expected of developments of this scale. We disagree, the proposal will provide a high level of pedestrian amenity through the landscaped courtyard, street tree planting, footpath widening & treatment, outdoor seating and ground level uses, including a cafe, providing an active interface for pedestrians..
2. There was also some concern with respect to security within the courtyard area.. Whilst the entrances to the courtyard are tunnel like in design, it is considered the width of these areas (the minimum width is 3 metres) is enough to counteract this effect. The area will be visible from the restaurant, food and drink premises and from above, providing adequate passive surveillance of this space. The sliding doors will enable an appropriate level of pedestrian activity whilst maintaining an ability to be locked at night and during periods where there may be security concerns, such as following a race meeting. For these reasons it is considered that the proposed courtyard will provide an acceptable level of safety for the generally public as well as guests and residents of the building.

1. During the hearing concern was raised that the proposal did not provide for family accommodation, as the majority of apartments contain one or two bedrooms. Clause 21.02 of the Mooney Valley Planning Scheme "The City Today" identifies that the current average size of households within the City of Mooney Valley is estimated to be 2.5 persons, and is projected to fall to an average household size of 2.3 persons. The clause also identifies that there has been a decline in the number of children and young people and adults aged between 20 and 29 years old. The proportion of infants aged 0-4 years old has falling from 6.9% of the population in 1991 to 5.9% in 2001. The clause identifies that it is projected that the proportion of children and residents aged in the 20-30 years of age group will continue to decline as the "baby boomers" age. The clause also identifies that the diverse range of housing structures throughout the municipality is not complemented by a diverse housing stock, with separate "family" houses accounting for 67.5% of the housing stock.
2. The revised MSS proposed to be implemented via amendment C90, currently with the minister for approval, provides an update on these population projections at Clause 21.01 which reveals:
   • As the city establishes itself as a more inner-city municipality, there are now less families but more couples and singles
   • The age profile of Moonee Valley is broadly similar to metropolitan averages, although there are slightly lower proportions of 0-11 year olds and 12-24 year olds, while the proportion of people aged over 60 years is higher.
   • One if the most notable tends has been the loss of 25-34 year olds, reflecting housing opportunity and affordability, people from this age group are likely to be accessing family type accommodation in the areas in the west such as Melton, Brimbank and Wyndham.
3. Based on these figures, it is clear that there is a demand for housing for singles and couples rather than for families. This proposal will provide accommodation for this group[17].

1. Concern was also raised that there was no need for hotel accommodation within Flemington. The MSS identifies that Mooney Valley has great potential as a tourist destination (Clause 21.02-3). The Vision for Moonee Valley (Cause 21.03) recognises that there will be continued improvement and diversification in the City's major tourism venues and integrated marketing and promotion of the City's many attractions. The tourism industry is identified as one of several industries that may increase employment for the municipality. Clause 22.02 outlines Council's policy with respect to Motels within Residential areas. The proposed service apartments are generally consistent with the policy as:
   • The development will provide temporary accommodation facilities
   • The site is within close proximity to existing public transport networks
   • The site adjoins two roads in a road zone
   • the design is considered acceptable in its context
   • the design will not create unreasonable overlooking or overshadowing
   • an underground car park is provided and appropriate landscape treatment is used
   • A condition will require air-conditioning units to be screened from view.

As such it is considered that there is sufficient policy support for the proposed service apartments.

1. Mr Henry Turnbull of Traffix group advised that the development is likely to trigger a need for a pedestrian crossing on Ascot Vale Road. This is because the development proposes a reduced parking provision and encourages high public transport usage. He considers that there is likely to be substantial number of people crossing Ascot Vale Road in the vicinity of the site to access the City bound bus stop as well as tram stops, Newmarket Plaza and the railway station. In addition, he considers that the level of anticipated vehicular and pedestrian traffic for Ascot Vale Road will exceed the trigger for a crossing contained within the Vic Roads Traffic Engineering manual.
2. Mr Walsh of Cardno disagreed with the need for a pedestrian crossing, suggesting that the proposal was unlikely to create a pedestrian demand of 60 persons per hour, although he agreed on Race Days the road would have this level of pedestrian traffic.
3. The proposed building results in a very significant resident population at this busy intersection. The train the tram and the activity centre are to the east of the land requiring residents to cross Ascot Vale Road to access these day to day facilities. Roundabouts are notoriously unsafe for pedestrians, particularly on arterial roads. We propose a condition that the applicant install a "zebra" crossing, provided that VicRoads has agreed to its construction within 6 months of the commencement of development.

1. In the first iteration, the proposal was promoted as a cutting edge green building. This ambition has been somewhat muted as the building has been redesigned and its scale reduced. However it remains the case that environmentally sustainable design remains a feature of the design, and the criticisms of the building in this regard are overstated. The applicant accepts a condition requiring the building to achieve a suitable sustainability standard.

1. Whilst Mr Turnbull of the Traffix Group and Mr Walsh agreed that an appropriate level of parking had been provided for the development, they disagreed as to the allocation of these spaces. Mr Walsh said that 279 spaces should be allocated for the residential uses, with 100 spaces allocated for visitors and for the commercial activities on the site, whereas Mr Turnbull suggested that 275 spaces be allocated for the residential use. In the scheme of the car park, four spaces is not a substantial difference. The actual requirement for residential, visitor and commercial spaces for the building is likely to apparent over time, and will be a matter for the management of the building. For this reason we are reluctant to impose a strict allocation regime, particularly given the number of parking spaces provided.

1. The responsible authority considers that it is appropriate that individual storage units of a minimum of 6 square metres be provided for all residential apartments. The applicant disagrees, suggesting that a more flexible arrangement is appropriate. Storage areas are provided within the basement car park areas of the building. No dimension for these storage areas is provided on the plans, and as such it is difficult to determine whether the requirement has been achieved. However, we consider requiring the provision of 1900 square metres for storage would result in a significant reduction in car parking for the development. This would not be a desirable outcome. As such it is considered that the storage areas provided are appropriate. Again, given that the demand for the storage areas will only be established over time, a flexible arrangement for the allocation of these spaces is appropriate.
2. During the hearing a revised landscape plan was submitted which addressed concerns raised by the objectors that there was insufficient ground area to enable the establishment of canopy trees along the laneway, due to the extent of the basement car park. Mr Blyton in his evidence proposed a continuous planter box along this boundary. The solution is considered appropriate; however amended plans will need to be submitted incorporating this change into the architectural drawings. A condition to this effect will be included on the permit.

1. It follows from the above reasons that it is the Tribunal's conclusion that the decision of the responsible authority should be set aside and a permit granted.
2. In deciding the conditions to be included on the permit the Tribunal has had regard to the draft conditions provided to the Tribunal by the responsible authority and the submissions and evidence of the parties in addition to the matters which arise from these reasons.

1. Before the development starts, 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 show:
   • (a) Resolution of stairs shown in Home Office 3 which appears on Levels Ground, 1 and 2 and conflicts with proposed landscaping within the courtyard;
   • (b) Measures to allow natural ventilation of dwellings via corridors;
   • (c) Any changes as a result of the requirements of VicRoads;
   • (d) Any changes required by the Department of Infrastructure (Public Transport Division);
   • (e) The location and where necessary the screening of all external plant and equipment including, but not limited to service units for heating, cooling and hot water, solar panels, television antennae and communication devices, services meters, car park mechanical exhaust and ventilation;
   • (f) Provision of shower and change facilities in accordance with Clause 52.34;
   • (g) Provision of traffic calming measures to provide for safe and efficient access to and egress from the subject site;
   • (h) The location of airlocks or other wind reduction measures for the central atrium, which must be designed by a suitably qualified expert;
   • (i) Details of the corner treatment at the intersection of Ascot Vale Road and Epsom Road to show adequate sightlines across the corner for traffic on adjacent roads without compromising walking comfort for pedestrians as consequence of wind speed.
   • (j) The location of the ESD measures outlined under condition 2.
   • (k) A planter box along the northern boundary of the land sufficient for the retention of the trees to be retained and the proposed new canopy trees.

1. Before plans are endorsed under condition 1 an updated ESD Report and implementation strategy must be submitted to and approved by the Responsible Authority detailing the ESD measures proposed by the development. The Report shall be prepared by a suitably qualified expert.

1. Prior to the endorsement of plans in accordance with condition 1 a detailed Landscape Plan must be submitted to and must be approved by the Responsible Authority detailing the landscaping proposed by the development. The plan should be generally in accordance with the Landscape Plan and Sections prepared by LBA Design and submitted to VCAT on 22 September 2010. This plan must include details regarding, but not limited to, the following:
   • (a) proposed screening between units adjacent to roof top terraces;
   • (b) location and details of proposed street furniture;
   • (c) the proposed pergola and seating to the roundabout, including sightline analysis to demonstrate viewlines will not be compromised;
   • (d) details of screening proposed to protect privacy of apartments located adjacent to roof terraces.

The landscaping must be implemented in accordance with the plans and thereafter maintained to the satisfaction of the responsible authority.

1. Landscaping of Ascot Vale Road for the frontage of the development with large canopy trees Lephostemon Confertus (except with the consent of the Responsible Authority to adopt an alternative species) including the provision of visitor bicycle hoops and other necessary street furniture such as rubbish bins.

1. Before the development starts a Construction Management Plan must be submitted to and must be approved by the Responsible Authority detailing the construction activity proposed. The plan must include, but not be limited to:
   • (a) Hours of operation.
   • (b) Parking and traffic movement of workers vehicles and construction vehicles.
   • (c) Scaffolding & Hoarding for the site.
   • (d) Allocated areas for loading and unloading.
   • (e) Site evacuation plan and procedure.
   • (f) Occupational health and safety policy.
   • (g) Hazard identification and control.
   • (h) Environmental management and waste minimisation.
   • (i) Protection of surrounding roads from site contamination and damage, including rumble grid and/or wash down bay facility.
   • (j) On site storm water contamination.
   • (k) Chemical storage.
   • (l) Noise and vibration.
   • (m) Risk assessment.
   • (n) Measures to ensure that all reasonable steps to minimise disruptions to tram and bus operations on Ascot Vale Road and Epsom Road are implemented during construction; and that when works that will cause disruptions to public transport operations are foreseen they must be communicated with proposed mitigation measures to the Department of Public Transport and bus/ tram operators at least one (1) week prior to the commencement of those works;
   • (o) The measures set out traffic management plan submitted to VicRoads in accordance with condition 22.
   • (p) Measures to ensure that work site traffic management practices will be in accordance with Road Management Act 2004 - Worksite Safety Traffic Management Code of Practice" and AS 1742.3 - 2009 Part 3: Traffic control devices for works on roads.

Once submitted and approved the works detailed by the plan must be carried out to the satisfaction of the Responsible Authority.

1. Before the development starts, a comprehensive waste management plan must be submitted to and approved by the Responsible Authority. The plan must include:
   • (a) The number and type of bins that will be used on the site and associated measures for the encouragement of recycling;
   • (b) The location of bin storage areas including details of screening and ventilation;
   • (c) A demonstration that the bin storage areas are sufficient to cater for the amount of waste that will be produced;
   • (d) Who will be responsible for taking bins in and out for collection, and where this will occur;
   • (e) Measures for the collection of waste and recyclables the measures must ensure that waste is collected on site;
   • (f) The measures for collections must:
   • (g) include the times and days of collection;
   • (h) specify the person or organisation responsible for collection;
   • (i) ensure that waste collection vehicles must enter and exit the site in a forward direction, and;
   • (j) demonstrate safe and convenient access routes for waste collection vehicles

The plan must not be revised without the consent of the Responsible Authority. The plan must be implemented to the satisfaction of the responsible authority.

1. Before the use starts, an updated Green Travel Plan, generally in accordance with the Plan prepared by Cardno Grogan Richards dated 10 December 2009, must be prepared to the satisfaction of the Responsible Authority following consultation with the Department of Infrastructure (Public Transport Division).

1. Prior to occupation of the permitted building or at such other time approved by the responsible authority, the owner must, at its expense, arrange for and complete the construction of a pedestrian crossing with flashing lights on Ascot Vale Road at a location approved by VicRoads. The owner need not construct the required pedestrian crossing in the event that:
   • (a) VicRoads has not approved the construction of such a pedestrian crossing within 9 months of the date of this permit, or;
   • (b) The approved pedestrian crossing is not located within the frontage of the land to Ascot Vale Road.

1. Before the development starts, a schedule of construction materials, external finishes and colours (incorporating samples) to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the schedule will be endorsed and will then form part of the Permit.

1. Prior to the development commencing a Stormwater Drainage Strategy with computations and drainage layouts is to be prepared and submitted to the Responsible Authority for approval. The strategy must include:
   • (a) The internal stormwater drainage layout including detail of the stormwater reuse and on site detention system;
   • (b) Measures to prevent flooding of the site in the event of a one per cent AEP storm;
   • (c) Measures to prevent flooding of surrounding properties and roadways in the event of a one per cent AEP storm where the risk of flooding is a consequence of the proposed development;
   • (d) A proposal to divert the stormwater from the existing Council stormwater drain within the site and redirect it outside the site to reach the Council Stormwater pit on Epsom Road, if necessary, the proposal must include the creation of a drainage easement in favour of Moonee Valley City Council;
   • (e) The Legal Point of Discharge;

The approved Stormwater Drainage Strategy must be implemented prior to occupation of the permitted building to the satisfaction of the responsible authority.

1. Except with the consent of the responsible authority there must be no modifications to the existing footpath or adjoining levels within the road reserve. Any change in levels to match existing surface levels along the property boundary line must be made within the property boundary.
2. Proposed crossovers are to be to the satisfaction of Council and VicRoads.
3. All works within the road reserve shall be in accordance with the requirements of the Moonee Valley City Council's Engineering Services Department.

1. All vehicular movements in and out of the development must be made in a forward direction.
2. Access to the site from Epsom Road shall be restricted to left-in and left-out movements only.
3. The applicant shall provide Functional Layout Plans of the proposed access which is to be submitted to and approved by VicRoads prior to any works on-site.
4. The plans are to include any mitigation works to enforce the left-in and left-out at the Epsom Road access.
5. Redundant vehicular crossings on the site shall be removed at no cost to VicRoads and the kerb, channel and nature strip reinstated to the satisfaction of the Responsible Authority.
6. Any mitigation work required by VicRoads shall be completed at no cost to VicRoads and to the satisfaction of the Responsible Authority.
7. At no cost to VicRoads and the Responsible Authority, the developer will be responsible for the relocation of any road furniture and other services that may be required in this work.
8. Signage, line-marking and pavement marking shall be designed and installed in accordance with VicRoads Traffic Engineering Manual Volume 2 - Signage and Marking to the satisfaction of VicRoads and the Responsible Authority.
9. A traffic management plan is to be submitted to VicRoads for its consideration at least 14 days prior to the commencement of any work on site. No traffic management devises are to be erected on Epsom Road or Ascot Vale Road until VicRoads issues authorisation for the erection of those devises in accordance with the traffic management plan.
10. Work site traffic management practices to be in accordance with Road Management Act 2004 - Worksite Safety Traffic Management Code of Practice" and AS 1742.3 - 2009 Part 3: Traffic control devices for works on roads. If Traffic congestions become excessive at anytime, the contractor must undertake works to ease congestion.

Department of Infrastructure (Public Transport Division)

1. Prior to the occupancy of the development Section 5, "Developer Commitments" outlined in the Cardno Grogan Richards report title '1 Ascot Vale Road, Flemington, Integrated Transport Plan', dated 10 December 2009 must be implemented to the satisfaction of the Responsible Authority and the Director of Public Transport.
2. If the bus stop immediately adjacent to the development to Ascot Vale Road is to be relocated as a result of alteration of access to the subject site, the permit holder must seek the prior written approval of the Director of Public Transport and the local bus company to the relocation and:
   • (a) Provide a scale and dimensioned plan of the proposed location for the relocated bus stop.
   • (b) Construct the relocated bus stop to DDA compliant standard, with bus shelter and seating at the permit holder's expense and to the satisfaction of the Director of Public Transport.

1. No foundation footings are to interfere with the Melbourne Water sewer that runs along Epsom Road.
2. Footings must be placed at such a distance and constructed in a manner that they do not load the sewer. Details of foundations of the proposed development must show how this is to be carried out.
3. Any works to be conducted surrounding the sewer must be undertaken in a manner that protects the sewer (ie. minimise any vibration, loading etc).
4. Prior to the commencement of works, the developer must pay the costs to allow Melbourne Water to carry out pre- and post- construction inspection of the sewer to ensure no damage has been caused as a result of construction of the existence of the structure. Contact Asset Services on telephone 9235 1414 for Melbourne Water's requirements, including payment of appropriate fees.
5. Melbourne Water must still have access to the sewer at all times, during construction and after.
6. Any damage caused to the sewer due to the development shall be paid for by the developer.
7. A Job Safety Assessment and a Work Method Statement must be submitted to Melbourne Water for approval providing sufficient detail to determine the effects of construction methods on the sewer.
8. No polluted and/ or sediment laden runoff is to be discharged directly or indirectly into Melbourne Water's drains or watercourses.

1. The Developer must enter into an agreement with City West Water for the provision of water supply and sewerage.

1. The Developer must enter into an agreement with Jemena Electricity for the provision of electricity to the development.

1. Noise levels emanating from the building measured at any noise sensitive premises (including those within the building) must not exceed those required to be met under State Environment Protection Policy (Control of Noise from Commerce, Industry and Trade), No. N-1 and State Environment Protection Policy (Control of Music Noise from Public Premises), No. N-2 .

1. Prior to the occupation of the permitted building, the area(s) set-aside for the parking of motor cars and bicycles and associated access lanes shown on the endorsed plans must be available for use to the satisfaction of the responsible authority. Car and bicycle spaces, access lanes and driveways must be kept available for these purposes at all times.

1. The use or development as shown on the endorsed plans must not be altered without the written consent of the responsible authority.
2. The development must be provided with external lighting capable of illuminating access to the car park and pedestrian walkways. Lighting must be located, directed and shielded and of limited intensity so that no nuisance or loss of amenity is caused to any person within or beyond the site to the satisfaction of the Responsible Authority.
3. Service units, including air conditioning units, must not be located on any of the balconies unless appropriately visually and acoustically screened to the satisfaction of the Responsible Authority.
4. The footpath and nature-strip along the site's Ascot Vale Road frontage must be improved to the satisfaction of the Responsible Authority at the developer's expense.
5. No more than 180 patrons are permitted within the Food & Drink Premises at any one time.

1. This permit will expire if one of the following circumstances applies:
   • (a) The development is not started within four years of the date of this permit.
   • (b) The development is not completed within six 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.

[1] The building form comprised a 5 level podium and 21 level residential tower.

[2] Priority Development Panel, Concept Appraisal, 1 Ascot Vale Road Flemington - 3 June 2009 Pages 13 & 14

[3] 21 levels including Ground Floor level, there is a Lower Ground Floor level accessible from the low point of the land on Epsom Road.

[4] The dwelling commence at 10 Ascot Vale Road.

[5] 21 levels including Ground Floor level, there is a Lower Ground Floor level accessible from the low point of the land on Epsom Road.

[6] 62 one-bedroom apartments, 76 one-bedroom with study apartments, 60 two-bedroom apartments and 21 three-bedroom apartments.

[7] At the conclusion of the hearing the applicant accepted a condition requiring the provision of shower and change facilities.

[8] The draft structure plan discussed below identifies the land as falling within the Racecourse Road major activity centre.

[9] There is a current planning permit for a nine storey apartment building on the land

[10] Clause 11.04-2 Activity Centre Hierarchy

[11] Clause 16.01-2 Location of Residential Development.

[12] Clause 16.01-3 Strategic Redevelopment Sites.

[13] Clause 15 Built Environment and Heritage

[14] More particularly the commercial area.

[15] The accuracy of the illustrations is limited by the simplicity of the technique used to modify the original perspective rendering. The illustrations assume that the modifications are achieved by a simple reduction in scale of the proposed building. We also indicate the number of dwellings in each option, based on the same assumption, and assuming that the other use components of the building remain unchanged.

[16] Draft Racecourse Road Activity Centre Structure Plan

[17] In any event, because of the crisis in affordability, apartments are increasing being occupied by families, the larger apartments proposed here can be used for this purpose.