1. In comparison to the 'best practice' standard under the BESS sustainability tool, Mr Talacko records the following result from his daylight modelling.

The results of the computer simulation (based on the optimal internal paint reflectance of 94% ) show that, on an overall development basis:

• 85.2% of bedrooms; and,
• 58.8% of living/kitchen areas meet the relevant daylight BESS 'best practice' standard.

The proposal development does therefore not technically comply with BESS daylight performance standards as less than 80% of living/kitchen areas meet the 'best practice' threshold.

The daylight analysis reveals the very significant daylight constraints imposed by the existing buildings to the North, East and South of the subject site which are a fundamental determinant of the limited access to daylight for rooms. This is evident from the difference in predicted daylight levels for similar apartment layouts on these facades compared to the west facing apartments with an unobstructed outlook.

The daylight simulation also reveals that the south facing studio apartments with balconies have significant daylight constraints because of the overhang compared to the alternative studio type without a balcony. Given the southern orientation of these studios, and the lack of direct solar access, in my opinion, the balcony will be rarely used and it would be preferable for residents to have the benefit of improved daylight in the living area in lieu of the balcony.

1. As set out above, Mr Talacko proposes that a number of the south facing studio apartments have their balconies removed, in order to improve the daylighting outcomes to habitable rooms. What is not clear from his written evidence, but can be gleaned from the daylight modelling attached to his evidence,[15] is that Mr Talacko also recommends that most of the studio apartments be widened to match the width of the largest studio floorplan, which would likely result in the loss of one studio apartment on the ground floor, and each of levels 1 to 11. Mr Talacko makes this recommendation in order to give the remaining studio apartments a wider window each, to receive additional daylight penetration by increasing the width to depth ratio of each studio apartment.
2. It is the evidence of Mr Talacko that by making these changes, the south facing studio apartments receive an appropriate level of daylight, which while not complying with the BESS measure for 'best practice' outcomes, will achieve an appropriate level of internal amenity. Having questioned Mr Talacko on the actual daylight results from his adjusted modelling, and the ability for people to perform functions such as read a book without switching on a light, we are persuaded that the daylighting outcomes put forward by Mr Talacko as a result of his recommendations for changes to the floor layout, will achieve an acceptable daylight and amenity outcome for the south facing studio apartments. For the reasons set out above, we find that such an outcome is consistent with the guidance in the Port Phillip Planning Scheme, including the various objectives and standards at Clause 58, and the policy at Clause 15.01-2L-02.
3. The Council maintains a position that the BESS 'best practice' outcomes should still be achieved. We are not persuaded by this submission for the following reasons:
   1. For the reasons set out above, policy at Clause 15.01-2L-02 does not encourage the achievement of the BESS 'best practice' outcomes, and nor does any other part of the Port Phillip Planning Scheme that we were taken to. Further, while we recognise that BESS represents best practice, the Victorian planning system is based on an approach that a reasonable and appropriate outcome is required in order for a planning permit be granted, not a best practice outcome.
   2. As set out above, the proposal achieves compliance with the Standards in Clause 58 that relate to the provision of daylight to habitable rooms.
   3. As set out above, the proposal provides a very significant extent of communal open space, at 5935 square metres where Standard D7 would require the provision of 250 square metres of communal open space. Further, the type of communal open space being provided is of high quality, will include large areas that will receive direct sunlight and high levels of daylight, and can perform some of the roles usually intended to be provided by internal habitable rooms. This includes providing lounge areas, dining rooms and recreation spaces.
   4. This proposal being a significant BTR development in a housing market where the shortage of rental properties is causing homelessness, should be supported and facilitated by the Victorian planning system, particularly in the circumstances set out above.
4. The applicant submits that it should have the flexibility of either adopting the varied layouts for the studio apartments as recommended by Mr Talacko, or an alternative layout that would achieve the same daylighting outcomes. The applicant drafted a condition that would achieve this level of flexibility, while securing the baseline daylighting outcome which Mr Talacko opines to achieve an appropriate and reasonable amenity outcome. We find it appropriate to implement the condition as drafted by the applicant, and provide the desired level of flexibility for a potential range of studio designs and layouts.
5. For these reasons we find that the proposal will achieve an acceptable level of daylight to habitable rooms, that will provide for an appropriate level of internal amenity.

1. The Council submits that the proposal fails to comply with Standard D27, as 93 of the proposed apartments have a single aspect and have a room depth exceeding 9.0 metres.
2. It is the evidence of Mr Pagliaro that in fact each of the proposed apartments have a room depth that complies with Standard D27. He says that the 93 apartments identified by the Council fall into two categories. Some of the apartments have laundries in the hallway next to their respective front doors, which therefore should not be counted as part of the open plan kitchen, living and dining space. On this basis, it is the evidence of Mr Pagliaro that once one discounts the hallway servicing the laundry, the depth of these rooms complies with Standard D27. An example of this layout is set out below.

1. According to the evidence of Mr Pagliaro, the remaining apartments identified by Council have living areas with windows on two orientations, due to the placement of the balconies, and therefore are not defined as single aspect habitable rooms under Standard D27. An example of this layout is set out below.

1. For the reasons set out above, we are persuaded by the evidence of Mr Pagliaro, and accept that all apartments have a room depth that comply with Standard D27.

1. The Council submits that an insufficient number of apartments within the proposed development on the review site will have dual aspects, or otherwise the ability to provide effective cross ventilation. They submit that while Standard D29 requires 40% of dwellings to have effective cross ventilation, as little as 22% of the proposed apartments may achieve this outcome. The Council makes this submission as they only regard the apartments at the corners of the proposed building as having two orientations able to provide cross ventilation.
2. It is the evidence of Mr Pagliaro that many other apartments also provide cross ventilation, by having windows that face different orientations. One such example of this is set out below.

1. We are persuaded by the evidence of Mr Pagliaro, that apartments in addition to those on the corners of the building, will provide the cross ventilation sought by Standard D29. We are also persuaded by the evidence of Mr Pagliaro that these apartments occur in sufficient proportions, such that the proposed development as a whole complies with Standard D29.
2. For these reasons we find that the proposal will achieve an appropriate level of internal amenity for future residents.

DOES THE PROPOSAL APPROPRIATELY PROVIDE FOR CAR PARKING AND TRAFFIC MOVEMENTS?

1. The Council raises no concerns relating to the supply of car parking, and the traffic impacts associated with the proposed development of the review site. The respondent made lengthy written and oral submissions regarding a range of potential traffic impacts on Queens Lane. Much of the content of these submissions are not relevant to our decision making task, including criticisms of previous traffic studies in this locality, of various decisions made by Council in respect of proposed developments on other sites, and of Mr Nusbaum's recent communications with the Mayor of Port Phillip City Council. As these matters are not relevant to our decision making task, we will make no findings in relation to these matters.
2. The respondent's submissions that are relevant to our decision making task will be summarised later in these reasons.

1. The application proposes the supply of 208 car parking spaces on the review site, comprising 5 car share spaces, 196 resident car parking spaces, 5 visitor spaces, and 2 spaces for staff on site. The application comprises the following uses:
   1. 110 studio apartments
   2. 176 one bedroom apartments
   3. 254 two bedroom apartments
   4. 31 three bedroom apartments
   5. A café comprising 170 square metres of leasable floorspace
2. There is no requirement to provide visitor car parking spaces for the dwellings, under the Port Phillip Planning Scheme. As such, under Clause 52.06-5 of the Port Phillip Planning Scheme, the standard car parking requirement comprises 607 car parking spaces, comprising 602 spaces for residents, and 5 spaces for the café. A planning permit is therefore required to reduce the car parking requirement.
3. Car parking and traffic evidence was provided by Mr Kiriakidis. His written evidence statement sets out the results of a parking survey conducted at an existing BTR development at Richmond. We are persuaded by Mr Kiriakidis that the review site in Queens Road has similar public transport connections to the site in Richmond, and therefore is a reasonable comparison. The Richmond site is provided with car parking at a rate of 0.54 car spaces per dwelling, and the surveys indicated a peak use of 63% of the provided car parking spaces. As only 94% of the dwellings in that development were occupied at the time of the survey, Mr Kiriakidis adjusted the data to indicate a car parking demand of 0.375 spaces per dwelling, at 100% occupancy. When applying this data to the 571 dwellings proposed for the review site, it results in an anticipated demand for 214 car parking spaces. This is just over the 196 car parking spaces proposed to be provided for residents on the review site in Queens Road.
4. It is the evidence of Mr Kiriakidis, and the submissions of the applicant, that a lower resident parking rate is appropriate on the review site, as compared to the surveyed rate at Home Richmond, for the following reasons.
   1. While the surveyed car parking demand at Home Richmond has been adjusted to reflect 100% occupancy, in fact we are informed that 100% occupancy is practically impossible to achieve for a BTR development of this scale. Instead, we are informed that an occupancy level of between 95% and 97% is more realistic, due to the extent of turnover in the rental housing occupancy.
   2. The Home Richmond car parking demand exists in an environment where the supply of car parking far exceeds the demand, and thus there is no effective suppression of car parking. That is, people who have cars at Home Richmond, are guaranteed access to a car space. Whereas a development that has a restricted supply of car parking, is a known factor that discourages car ownership, and a switch to more sustainable forms of transport. As such, a reduction in the surveyed demand for car parking from Home Richmond, is reasonable to apply to the review site where car ownership will be supressed by access to a limited supply of car parking.
   3. The dwelling mix at Home Richmond is different to that proposed on the review site. Home Richmond has no studio apartments, 108 one bedroom apartments, 229 two bedroom apartments and 31 three bedroom apartments. In comparison, as set out at paragraph 91 of these reasons, the review site is proposed to house a substantial number of studio apartments, and a smaller proportion of three bedroom apartments. The change in dwelling mix would likely result in a reduced demand for car parking on the review site.
   4. It is the evidence of Mr Kirikidis that on-street car parking restrictions are tight in the neighbourhood surrounding the review site, and there is no real alternative for people wanting all day parking to park off-site. This will also likely restrain demand for car parking, to match the supply proposed on the review site.
5. For these reasons we find that the proposed supply of car parking on site is reasonable, and it is appropriate to direct the grant of a planning permit, to allow a reduction in the standard car parking requirement.

1. The evidence of Mr Kiriakidis also provides survey data of vehicle movements from an existing development at Home Southbank. That survey revealed the following traffic generation rates:
   1. 0.12 movements per car parking space at the weekday AM peak hour;
   2. 0.21 movements per car parking space at the weekday PM peak hour;
   3. 1.32 movements per parking space across an entire weekday.
2. Mr Kiriakidis's evidence then applies these traffic generation rates to the proposed development of the review site, which he anticipates to generate 23 vehicle movements in the AM peak hour, 44 in the PM peak hour, and 280 vehicle movements across an entire weekday. This he says compares to the previous use of the land for a 192 room hotel, which was likely to generate 19 vehicle movements in each of the peak hours, and 190 vehicle movements across an entire day. When compared to this historic use of the review site, it is Mr Kiriakidis evidence that the expected additional traffic volumes from the review site are low.
3. In addition, Mr Kiriakidis conducted a SIDRA analysis of the intersection of Queens Lane with Arthur Street, post the proposed development on the review site. That analysis demonstrates that the additional traffic anticipated from the proposed development on the review site makes very little difference to the current short delays experienced at this nearby intersection. Further, post development all traffic movements to and from Queens Lane will continue to perform at excellent levels, on a degree of saturation analysis.
4. The respondents submit that the proposal will cause an unreasonable traffic impact on the surrounding road network, having regard to the cumulative traffic impacts from the existing traffic levels, the proposed development of the review site, and known approved developments on other nearby sites. They argue that Mr Kiriakidis has not done such a cumulative traffic impact assessment, despite the following provision under DDO26.[16]

Application requirements

The following application requirements apply to an application for a permit under Clause 43.02, in addition to those specified elsewhere in the scheme and must accompany an application, as appropriate, to the satisfaction of the responsible authority:

• ...
• A Traffic and Parking Assessment Report which includes an examination of the cumulative impacts of traffic and parking in the Precinct.

1. The respondents submit that Mr Kiriakidis's evidence statement has materially understated the existing likely future traffic volumes along Queens Lane. They make this submission for the following reasons:
   1. The traffic surveys relied upon by Mr Kiriakidis arrives at daily traffic volumes having regard to counts taken at either end of the stretch of Queens Lane that runs between Arthur Street and Kings Way. It does not measure the cumulative extent of traffic along the street at various locations, which would be higher than that experienced at either end of the street.
   2. The traffic surveys of existing Home developments relied upon by Mr Kiriakidis only measure the number of vehicles entering and exiting those sites. They do not measure the number of vehicle trips that involve pick up or drop off kerbside, such as from ubers and taxis, couriers and other deliveries. As such, the evidence underestimates the likely traffic volume to be created by the proposed development of the review site.
   3. The office building at 424 St Kilda Road has been vacant since 2017, and has been approved for a redevelopment. This will generate additional traffic to Queens Lane.
   4. When traffic volumes were surveyed in 2023, St Kilda Road had two north-bound lanes closed, which resulted in rat running through Queens Lane effectively being non-existent.
   5. The proposed development at 448 St Kilda Road will significantly add to traffic volumes in Queens Lane during the day.
   6. There are other approved developments along Queens Lane to the south of Arthur Street, that will increase traffic in this part of Queens Lane.
2. We are not persuaded by these submissions, for the following reasons.
   1. It is true that all traffic counts can only identify the traffic volumes at a particular point along any road, and those traffic volumes will fluctuate up and down as traffic exits and enters a length of road. In this proceeding, we are satisfied that the various traffic counts that we have from a range of sources[17] provides us with a thorough understanding of the existing traffic levels along this stretch of Queens Lane.
   2. Given the nature of the development proposal that is before us, it is likely that a good proportion of the drop off and pick up traffic movements will likely occur from Queens Road, from which a dedicated drop off facility is to be provided on the review site. We therefore are not persuaded that this proposal will materially add to traffic volumes along Queens Lane from traffic not otherwise entering and exiting the basement car park, aside from the odd truck that will utilise the loading facility accessed off Queens Lane.
   3. The Council informs the Tribunal that the previous planning permit allowing the redevelopment of the land at 424 St Kilda Road has expired, and that a new planning permit application is currently under consideration. The traffic impacts associated with the redevelopment of that land are therefore not yet known, and are properly considered at the time of the assessment of a new planning permit application.
   4. The 2023 traffic surveys report traffic volumes in Queens Lane, that essentially reflect the traffic volumes recorded in 2013. They also reflect another set of traffic counts conducted by Trafficworks for the Council in Queens Lane. For these reasons, we find it appropriate to rely on the traffic counts set out in the evidence of Mr Kiriakidis.
   5. We are not persuaded by the respondent's analysis of the increased traffic as a result of the future development of 448 St Kilda Road. In our view, this analysis contains some serious errors, including attributing either 450 or 490 daily traffic movements to the 108 hotel rooms associated with that proposed development. We consider that to be a significantly overstated traffic volume that could not reasonably be expected from a hotel of that scale.
   6. We accept that there will be increased traffic volumes along this part of Queens Lane, from other developments to the south of the review site. However, for the reasons set out above we consider that the extent of additional traffic put forward by the respondent is overstated. We also note that in the respondents' submission, additional traffic volumes have been applied in a formulaic way across an entire day, without appreciating that new residential development further south along Queens Lane, will primarily add traffic entering the development sites in the critical PM peak hour, which will not be traffic travelling north along the section of Queens Lane between Arthur Street and Kings Way. This is critical as it is the northbound traffic between Arthur Street and Kings Way, which is the main time and location of traffic congestion along Queens Lane. Further, we also note that the Council has commissioned a study (Traffic and Parking Assessment Report: Queens Lane between Kings Way and Hanna Street, Melbourne (Trafficworks, 7 August 2023)) (the 'Trafficworks report') which details a range of road improvements which could occur to reduce the effect of this increased traffic volumes on traffic congestion in Queens Lane.
3. However, none of this analysis addresses the key reason why we conclude that this proposal and its related traffic impacts are appropriate, despite the existing congestion experienced at a particular time in Queens Lane. The Trafficworks report for Council identifies that congestion along this part of Queens Lane occurs in the north bound traffic, in the PM peak. No congestion either outside of the PM peak, or at any time of the day in the south bound lanes, is recorded in any traffic study that has been presented to this Tribunal.
4. It is important to identify and address this time and direction of existing traffic congestion, as it is the impact of new development on traffic delays and queuing on the surrounding road network that is critical to assess in a planning permit application in an inner city location such as this, where substantial new development is strongly encouraged. In contrast, the respondent is focussed on a theoretical 'capacity' of a road the width of Queens Lane, and whether this proposal and others will push Queens Lane over that theoretical capacity. Planning is not concerned with theoretical outcomes, but rather the actual impacts on a locality, or in this case a road network. For this reason, and in this physical context,[18] if a road is demonstrated to perform well at most times, and a proposal will not change that fact, then it is the impact on the critical time of delays and congestion that is to be considered in our decision making task.
5. As the proposed development on the review site is a residential development, it will primarily generate traffic returning to the review site in the PM peak, which can occur via southbound movements from Kings Way. This would primarily add traffic travelling in the opposite direction, to the traffic lanes experiencing the existing documented congestion and delays. However, even if vehicles arriving at the review site in the PM peak do so by travelling north along Queens Lane, they will enter the review site south of Kings Way, and will not add to the existing delays in moving through the intersection of Queens Lane and Kings Way.
6. Only eleven vehicles are predicted to depart the review site in the PM peak, and this is not materially different from the six vehicles that would have departed the site in the PM peak as part of its historical use as a hotel. When compared to the previous traffic generated by the hotel on the review site, the additional vehicle movements exiting the review site result in one car being added to Queens Lane every 12 minutes in the PM peak. Alternatively, even if we disregard the historical traffic levels generated by the former use of the review site, the proposal will generate one exiting vehicle from the review site every 5 minutes in the PM peak. This is still a low level of traffic to be added to Queens Lane.
7. When exiting the review site in the PM peak, drivers will be able to gauge the extent of queues and delays that would occur if they turned north along Queens Lane, and have the option to instead turn south and travel to either Queens Road or St Kilda Road via Arthur Street. Having regard to the low level of exiting traffic generated by the proposed development of the review site at the PM peak, we do not regard that this proposal will materially add to the existing congestion and delays in Queens Lane, heading north and exiting to Kings Way.
8. Finally, the respondent also raises concerns with the limited availability of loading bay facilities along Queens Lane, the documented illegal parking of loading vehicles in the laneway, and the resultant dangerous traffic movements that have been regularly observed. We acknowledge this existing condition, which is independent of the proposed development of the review site. The proposal that is before us provides a very generous on site loading bay, which will enable two trucks to unload simultaneously. Further, it is the evidence of Mr Kiriakidis that these loading bays will be available for people moving furniture in and out of the proposed apartments, and will be able to be booked for this purpose. Indeed, it is our understanding that people commencing a rental lease on the review site, will be required to move in when a space can be booked at the loading bay. On this basis, we do not regard it likely that this proposed development will contribute to the existing problems with a lack of loading facilities in Queens Lane.
9. For these reasons we find that the proposal will appropriately provide for car parking and traffic movements on the surrounding road network.

1. A number of other matters about permit conditions were raised by the applicant and Council, with the respondent declining to make any submissions regarding permit conditions. With respect to those matters that remain in dispute between the Council and the applicant, other than those already addressed above, we summarise our conclusions as follows:
   1. The Council seeks to retain its drafted Condition 1(a) that will require the proposed basement access ramp to provide a full sightline triangle to pedestrians along Queens Lane. We are persuaded by the evidence of Mr Kiriakidis that this is not required to provide for pedestrian safety, given the warning beacon and convex mirror that are shown on the plans. In addition to this evidence, we also note that the proposed basement access ramp replicates the location of the existing basement access ramp to the former hotel, and that there is no documented history of pedestrian safety issues as a result.
   2. Council says that Condition 4, which requires the continuation of the BTR model of housing, should apply to the life of the building. We find this unusual given that Council made no concessions on the layout or design of this development, on the basis of its provision of much needed housing in a BTR model. Further, the Council also failed to draft any condition in its 'without prejudice' conditions that would have addressed this issue. In our view, the 10 year 'guarantee' provided by the applicant is a reasonable offer.
   3. The Council opposes the deletion of a permit condition that seeks the provision of public art, submitting that the condition is consistent with its policy at Clause 15.01-2L-03 of the Port Phillip Planning Scheme. We note that this policy encourages the provision of urban art, without setting a monetary value, or requiring that a permit condition apply to certain developments. In this case, the proposal is making a significant voluntary contribution to the surrounding community by providing a new pedestrian connection between Queens Road and Queens Lane. This BTR development also makes a significant community contribution through the provision of much needed rental accommodation. We have not been persuaded that it is also appropriate to require a developer contribution in the form of urban art.
   4. The applicant asks that a condition containing various changes sought by Council to its Landscape Plan be deleted, whereas the Council seeks to retain its drafted condition. In the end, we have adopted a middle ground, retaining those components of Condition 21 that we find to be justified, and deleting the other components.
   5. The Council has sought to impose a condition requiring glare from the building be limited, such that specular light reflectance must be less than 15 per cent for all external building glazing and cladding materials and finishes, whereas the applicant seeks the permit condition be amended to allow 20 per cent. Having reviewed the Planning Practice Note 96: Planning Considerations for Reflected Sunlight Glare (December 2022) and considered the context of the review site, we adopt the measure preferred by the applicant.
   6. We decline to delete any of the conditions requested by the Head, Transport for Victoria, for two reasons. Firstly, we find that while some of these conditions that apply to the crossovers to Queens Road duplicate the conditions that apply to the Queens Lane crossovers in the Council's control, it is desirable to have the conditions that apply to the two different road environments. Secondly, the applicant has not advised the Head, Transport for Victoria that they intend to oppose their conditions, and so we consider it preferable that they be retained.

1. For the reasons given above, the decision of the responsible authority is set aside. A permit is granted subject to conditions.

• The use of the land for dwelling
• The partial demolition of a building
• The construction of a building and construction or carrying out of works (including a solar energy system)
• The external painting of a building
• The reduction of the standard car parking requirement
• The alteration of access to a road in a Transport Zone 2

1. Before the use or development starts, excluding site establishment, bulk excavation, site preparation, soil, removal, site remediation, in ground works and retention works, 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 an electronic copy must be provided. The plans must be generally in accordance with the plans prepared by Cox Architecture entitled "Home Albert Park", Project No 322042, Drawing Nos. TP-00-000 (Rev 8), TP-10-098 (Rev 3), TP-10-099 (Rev 3), TP-10-100 (Rev 6), TP0-10-200 to TP-10-202 (Rev 3), TP-10-301 to TP-10-303 (Rev 3), TP-10-310 (Rev 2), TP-10-320 (Rev 2), TP-11-099 (Rev 3), TP-11-100 (Rev 6), TP-11-101 (Rev 3), TP-11-110 (Rev 7), TP-21-080 (Rev 15), TP-21-090 (Rev 16), TP-21-100 (Rev 14), TP-21-101 to TP-21-102 (Rev 10), TP-21-103 (Rev 9), TP-21-104 (Rev 10), TP-21-105 to TP-21-106 (Rev 8), TP-21-110 to TP-21-111 (Rev 10), TP-21-112 (Rev 8), TP-21-117 (Rev 10), TP-21-118 (Rev 13), TP-21-119 (Rev 13), TP-30-000 (Rev 7), TP-30-010 (Rev 7), TP-30-020 (Rev 7), TP-30-030 (Rev 7), TP-30-040 (Rev 7), TP-30-100 (Rev 6), TP-30-110 (Rev 6), TP-30-120 (Rev 6), TP-30-121 (Rev 6), TP-40-001 to TP-40-002 (Rev 10), TP-40-003 to TP-40-004 (Rev 9), TP-50-000 (Rev 2), TP-50-010 (Rev 3) , TP-50-020 (Rev 3), TP-50-021 (Rev 2), TP-50-022 (Rev 4), TP-50-030 (Rev 2), TP-50-040 (Rev 1) to TP-50-044 (Rev 1), TP-90-010 (Rev 6) all dated 27 March 2024 and Development Summary at pg. 101 of the Urban Context Report prepared by Cox Architecture dated April 2024 but modified to show:

(a) Remove the new boundary wall adjacent to 4-5 Queens Road on the northern side of the basement ramp for a distance of 1 metre from the Queens Lane title boundary.

(b) Swept path diagrams for car parking spaces adjacent to walls or large columns which encroach on door opening or access demonstrating compliance with the absolute minimum space width requirements specified at AS2890.1:2004.

(c) Annotation confirming screening heights between side by side balconies.

(d) Detailed plans of the DDA and portable threshold ramps to Netherby House.

(e) Detailed elevation plan of the front fence along Queens Road.

(f) Amendment of south-facing studio apartments in the South Tower at levels 1-11 to provide layouts demonstrated by daylight modelling to achieve a daylight factor of 1% or greater to 40% or more of the floor area of the living room, including through removal of balconies, adopting internal paint finishes of 94% Light Reflectance Value and having regard to the requirements of the Sustainability Management Plan prepared under Condition 5.

(g) Detailed plans demonstrating limitation of views between dwellings at the internal intersections of the North Tower and East Tower, and East Tower and South Tower generally in accordance with the diagram at page 93 of the Urban Context Report prepared by Cox Architecture dated April 2024.

(h) Screening or obscured glazing preventing views from the Residents Lounge at Level 17 into the adjacent dwelling type E03.1 at Level 17 of the East Wing, or to more than 50 per cent of the private open space and windows of dwellings directly below.

(i) Operable windows to habitable rooms in single-aspect dwellings.

(j) Two car spaces allocated for the food & drink premises.

(k) Any changes required by Conditions 5, 6, 18, and 21.

1. The layout of the site and the size, levels, design and location of buildings and works shown on the endorsed plans must not be modified for any reason without the prior written consent of the Responsible Authority.
2. All external materials, finishes, and colours as shown on the endorsed plans must not be altered without the written consent of the Responsible Authority.
3. The dwellings approved by this permit must not be subdivided into separate titles within 10 years of the date of this permit unless otherwise approved in writing by the responsible authority.
4. Prior to plans being endorsed under condition 1 of this permit, an updated Sustainability Management Plan (SMP) must be submitted to and approved by the Responsible Authority.  The updated SMP must be generally in accordance with the SMP titled Home Netherby, 6-9 Queens Road Melbourne, Sustainability Management Plan, dated 28/03/2024, authored by Stantec Australia Pty Ltd (Ref: 301151199, Draft 07, but modified to address the following;

(a) Nomination of internal paint finishes at the commencement of tenancies with no less than 85% Light Reflectance Value and, as relevant, consistent with the finishes used for the purposes of daylight modelling referred to in condition 1(g).

(b) Measures consistent with the achievement of a 5 star Green Star Buildings rating.

(c) Any changes required by condition 1.

When approved, the updated SMP will be endorsed and will then form part of this permit. The ESD initiatives in the endorsed SMP must be fully implemented and must be maintained throughout the operational life of the development to the satisfaction of the Responsible Authority.

1. Access doors to the Substation must comply with the following requirements:

(a) adequate signage must be installed on the doors

(b) Self-closing and can be held fully open against the building wall for the time personnel are occupying the facility;

(c) In the fully open position do not encroach more than 100mm into the Road Reserve;

(d) Have a minimum clearance of 150mm from the footpath surface;

(e) Open onto a footpath with a minimum width of 1500mm.

(f) The doors must be kept locked when not in use with the keys made available to approved personnel only.

1. Prior to the issue of any Certificate of Occupancy or Certificate of Final Inspection for the development approved by this permit, an ESD Implementation Report (or reports) from a suitably qualified person or company, must be submitted to and endorsed by the Responsible Authority. The Report must confirm that all ESD and WSUD initiatives in the endorsed SMP have been implemented in accordance with the approved plans to the satisfaction of the Responsible Authority.  The ESD and WSUD initiatives must be maintained throughout the operational life of the development to the Satisfaction of the Responsible Authority.
2. The developer must ensure that throughout the construction of the building(s) and construction and carrying out of works allowed by this permit;

(a) No water containing oil, foam, grease, scum or litter will be discharged to the stormwater drainage system from the site;

(b) All stored wastes are kept in designated areas or covered containers that prevent escape into the stormwater system;

(c) The amount of mud, dirt, sand, soil, clay or stones deposited by vehicles on the abutting roads is minimised when vehicles are leaving the site.

(d) No mud, dirt, sand, soil, clay or stones are washed into, or are allowed to enter the stormwater drainage system;

(e) The site is developed and managed to minimise the risks of stormwater pollution through the contamination of run-off by chemicals, sediments, animal wastes or gross pollutants in accordance with currently accepted best practice.

1. Before the occupation of the development allowed by this permit, vehicle crossings must be constructed in accordance with Council's current Vehicle Crossing Guidelines and standard drawings to the satisfaction of the Responsible Authority.
2. Before the occupation of the development allowed by this permit, vehicle crossings shown as to be removed on the plans endorsed under condition 1 must be removed and the area re-instated with footpath, nature strip (along Queens Road) and kerb and channel at the cost of the applicant/owner and to the satisfaction of the Responsible Authority.
3. Before the occupation of the development allowed by this permit, the applicant/owner must do the following things to the satisfaction of the Responsible Authority:

(a) Pay the costs of all alterations/reinstatement of Council and Public Authority assets necessary and required by such Authorities for the development.

(b) Obtain the prior written approval of the Council or other relevant Authority for such alterations/reinstatement.

(c) Comply with conditions (if any) required by the Council or other relevant Authorities in respect of alterations/reinstatement.

1. Without the further written consent of the Responsible Authority deliveries to and from the site, including rubbish collection, must not occur during peak hours (6:30 am to 9:30am and 3:30pm to 6:30pm) Monday to Friday.
2. The development shall be constructed in accordance with the recommendations provided in the Acoustic Assessment prepared by Acoustic Logic Revision 2 dated 18 March 2024.
3. Prior to occupation of dwellings, a revised acoustic report shall be submitted to the Responsible Authority confirming that noise emissions from any surrounding buildings, including rooftop plant on those buildings, complies with the Environment Protection Regulations 2021 and incorporated EPA Publication 1826 at the development. Where deemed non-compliant, a revised acoustic report shall provide recommendations for any rectification works to be undertaken prior to occupation of those dwellings, to the satisfaction of the Responsible Authority.
4. Chutes must comply with the relevant safety and design standards and be installed in accordance with the manufacturer's specifications.
5. Concurrent with the endorsement of plans, or by such later date as approved in writing by the Responsible Authority, a detailed schedule of conservation works is to be prepared and submitted to Responsible Authority. This will include:

(a) An updated HIS (or letter of advice from Urbis) of the detailed conservation works for Netherby.

(b) Details of the conservation work to Netherby House including works to the northern and eastern elevations.

(c) A separate plan/s for Netherby showing these conservation works, including colours and materials (this should include close up, specific elevations of each of the four elevations of Netherby).

(d) Elevation plans of the relocated front cast iron fence (while this is not original, it is sympathetic) and any other new fencing in the forecourt of Netherby.

1. Prior to the occupation of the development, the 'Passeggiata' through link must be completed in accordance with the plans endorsed under condition 1 to the satisfaction of the Responsible Authority.
2. Concurrent with the endorsement of plans, or by such later date as approved in writing by the Responsible Authority, a Public Realm Plan of the Queens Lane frontage is to be prepared and approved to the satisfaction of the Responsible Authority. The plan submitted must:

(a) provide a high standard of pedestrian amenity;

(b) coordinate all elements such as bicycle hoops, seating, planter boxes, artwork, pavement types, bollards, awnings and lighting;

(c) provide details of all paving and footpath treatments including details of the treatment of level changes; and

(d) comply with the Disability Discrimination Act 1982 in respect to pedestrian access.

1. Concurrent with the endorsement of plans, or by such later date as approved in writing by the Responsible Authority, a Lighting Plan of the Queens Lane frontage is to be prepared and approved to the satisfaction of the Responsible Authority. The lighting plan will provide details of light levels and light spill at the following:

(a) The cross-over to the carpark and carpark entrance (including the bike parking area)

(b) The garbage truck parking/waste collection area.

1. The Lighting Plan to be accommodated by a lighting report prepared by a suitably qualified person that demonstrates the proposed lighting layout complies with relevant Australian Standards e.g., AS1158.3.1 - 2020 and AS4282 to the satisfaction of the Responsible Authority.
2. Concurrent with the endorsement of plans, an updated Landscape Plan is required to show compliance with canopy cover and deep soil requirements, as per Clause 58.03-5 Landscaping Objectives. The plan must be submitted to, approved by and be to the satisfaction of the Responsible Authority. The Landscape Plan must be generally in accordance with the Landscape Plan prepared by Aspect Studios Project #M22099 dated April 2024 but amended by the following:

(a) Specification of plant species for the planter in front of the Queens Lane café that will not grow to a height that would block views between the footpath and the café.

(b) The replacement of environmental and sleeper weeds with indigenous or native plants.

(c) The inclusion of larger canopy trees along Queens Road.

When the Landscape Plan is approved, it will become an endorsed plan forming part of this Permit.

1. The landscaping as shown on the endorsed Landscape Plan must be carried out and completed to the satisfaction of the Responsible Authority before the occupation of the development and/or the commencement of the use or at such later date as is approved by the Responsible Authority in writing.
2. The landscaping as shown in the endorsed Landscape Plan must be maintained, and any dead, diseased or damaged plant replaced in accordance with the landscaping plan to
3. Before the occupation of the development, the area(s) set aside for the parking of vehicles and bicycles and access lanes as shown on the endorsed plans must be:

(a) Constructed.

(b) Properly formed to such levels that may be used in accordance with the plans.

(c) Surfaced with an all-weather surface or seal coat (as appropriate).

(d) Drained and maintained.

(e) Line marked to indicate each car space, visitor space, bicycle space, loading bay and/or access lane.

(f) Clearly marked to show the direction of traffic along access land and driveways.

All to the satisfaction of the Responsible Authority.

1. The loading and unloading of vehicles and the delivery of goods to and from the premises must at all times be conducted entirely within the site or in a manner that limits interference with other vehicular traffic to the satisfaction of the Responsible Authority.
2. All service pipes/service units (excluding down pipes, guttering and rainwater heads) must be concealed from view from the public realm and any screening devices suitably integrated into the design of the building to the satisfaction of the Responsible Authority.
3. Specular light reflectance must be less than 20 per cent for all external building glazing and cladding materials and finishes when measured at an angle of 90 degrees to the surface of the material (normal incidence), except with the written consent of the Responsible Authority.
4. Once the development has started it must be continued and completed to the satisfaction of the Responsible Authority.
5. The roof plant and equipment must not cause excessive noise or vibration effects to any neighbouring properties in accordance with the requirements of the Environmental Protection Regulations 2021 and EPA Publication 1826.4 (Noise Protocol).
6. Prior to plans being endorsed under condition 1 of this permit, an updated Waste Management Plan (WMP) must be submitted to and approved by the Responsible Authority.  The updated WMP must be generally in accordance with the WMP titled 6-9 Queens Road Melbourne, Waste Management Plan prepared by One Mile Grid dated April 2024 (Ref: 230006WMP001F-F 25 March 2024), but modified to address the following;

1. This permit as it relates to use will expire if the use does not commence within five (5) years after the issue date of this permit.

In accordance with section 69 of the Planning and Environment Act 1987, an application may be submitted to the responsible authority for an extension of the period referred to in this condition.

1. This permit as it relates to development will expire if one of the following circumstances applies:

(a) The development is not started within three years of the issue date of this permit.

(b) The development is not completed within five years of the issue date of this permit.

In accordance with section 69 of the Planning and Environment Act 1987, an application may be submitted to the responsible authority for an extension of the periods referred to in this condition.

1. Prior to the occupation of buildings and/or works the crossover and driveway are to be constructed to the satisfaction the Responsible Authority and at no cost to the Head, Transport for Victoria.
2. Prior to occupation of buildings and/or works the access lanes, driveways, crossovers and associated works must be provided and available for use and be:

(a) Formed to such levels and drained so that they can be used in accordance with the endorsed plans.

(b) Treated with an all-weather seal or some other durable surface. Driveways must be maintained in a fit and proper state so as not to compromise the ability of vehicles to enter and exit the site in a safe manner or compromise operational efficiency of the road or public safety.

1. All vehicles must always enter and exit the site in a forward direction.
2. Prior to occupation of buildings and works, the redundant crossovers must be removed, and the area reinstated to kerb and channel to the satisfaction of the Responsible

[1] Section 4(2)(d) of the Victorian Civil and Administrative Tribunal Act 1998 states a failure to make a decision is deemed to be a decision to refuse to make the decision.

[2] The submissions and evidence of the parties, any supporting exhibits given at the hearing and the statements of grounds filed have all been considered in the determination of the proceeding. In accordance with the practice of the Tribunal, not all of this material will be cited or referred to in these reasons.

[3] Victorian Heritage Database. We acknowledge that there is also a statement of significance to be found in the Port Phillip Heritage Review (December 2021), however that statement of significance is brief, and of no real assistance.

[4] Page 36, Heritage Impact Statement - Netherby, 6-9 Queens Road Melbourne (Urbis, 21 August 2023).

[5] Both of these measurements are electronically scaled off plan TP-21-080

[6] Mr Pagliaro clarified in response to cross examination that 31% of the proposed apartments either had no private open space, or areas less than that required by Standard D20, although we understand that this figure is prior to the changes recommended by Mr Talacko.

[7] Noting that while there are 31 existing studio apartments between levels 1 and 11 which are affected by Mr Talacko's evidence, that the result of his evidence would also see one studio apartment deleted from each level.

[8] Paragraph 93 of Ms Milner's written evidence statement.

[9] Planning and Urban Context Report (Tract, 8 August 2022).

[10] Paragraphs 117-119 of Ms Milner's written evidence statement.

[11] Taken from page 37 of Ms Milner's evidence statement.

[12] While the applicant's written submissions states that eight apartments do not comply with Standard D27, this was corrected in oral submissions, as those eight apartments do not have single aspect living areas.

[13] As referenced at Clause 15.01-2L-02 of the Port Phillip Planning Scheme.

[14] Page 9 of Mr Talacko's evidence statement.

[15] And was confirmed in Mr Talacko's oral evidence.

[16] In contrast to the submissions of the respondent, we note that this provision does not require a cumulative impact submission, unless considered to be appropriate to the Council's satisfaction.

[17] Noting that Mr Kiriakidis' witness statement relies on two earlier traffic counts undertaken by Traffix Group, and that the Council has also commissioned their own study undertaken by Trafficworks, who undertook their own traffic counts.

[18] That is, in an inner city location where substantial redevelopment is strongly encouraged by the local planning scheme.