Mr J. Patrick, Landscape Architect, John Patrick and Associates

Mr M. Sheppard, Urban Designer, David Lock and Associates

Development of a four storey building containing 112 apartments, 300 square meters of office and 130 car parking spaces.

Section 77 of the Planning and Environment Act 1987

Clause 32.01-4: Construct more than one dwelling on a lot in R1Z.

Clause 44.05: Construct buildings and works in SBO.

Clause 52.06 -: Reduction in standard parking provision.

Clause 52.29: Alter/create access to a road in a Road Zone category 1.

Clauses 11, 13, 15, 16, 17, 18, 21.02, 21.03, 21.05, 21.06, 21.07, 21.09, 22.04, 45.03, 52.06, 52.07, 52.29, 52.36, and 65.

The site it is located on the south side of Bay Road roughly mid block between Bluff Road and Reserve Road. The land comprises a rectangular lot with a frontage of 27.43 metres and an overall area of just under 4,464 square metres. A single storey industrial building occupies the land. Surrounding land use include a vacant property to the east (2.35 ha) which has approval to be redeveloped for 453 apartments, and a cafe within three buildings ranging in height from 4 to 8 storeys. An industrial property which is subject to an application for redevelopment for apartments within 5-6 storey buildings, exists to the west. Sandringham Secondary College exists to the south whilst industrial uses and dwellings exist to the north on the opposite side of Bay Road.

228 Bay Road Pty Ltd v Bayside CC [2010] VCAT 2062

Cremorne Properties Pty Ltd V Yarra CC [2008] VCAT 1202

(Reasons given orally at the hearing but subsequently revised)

1. We have decided to grant a permit for the redevelopment of the land for a four storey building containing 112 apartments and 300 square metres of office space. The Council's decision is set aside. The permit conditions will be largely those set out in the draft conditions prepared by the Council, however, we will make some minor changes. While we find that the amount of parking to be provided to be satisfactory, arrangements need to be put in place to allow the office car spaces to be used as part of the visitor car parking supply for the dwellings "after business hours" and on weekends. These arrangements can be implemented by permit condition. There are no particular changes to the building or the design required. The requirements for the environmental audit are mandatory and set out in the planning scheme.

1. Goal Number 4 Pty Ltd lodged an application for a planning permit with the Bayside City Council seeking permission to redevelop land at 218 Bay Road in Sandringham. The proposal lodged with the Council involved the redevelopment of the land with a four-storey building for a cafe, 115 apartments and car parking. The Council received three objections. The three referral authorities; Vicroads, Melbourne Water and the Department of Transport, do not oppose the grant of the permit subject to conditions. However, the Council decided to refuse the grant of a permit on 14 grounds.
2. The grounds of refusal relate to four major areas of concern. Firstly, the Council considers that the proposal is not consistent with State and Local policy as well as the purpose of the in the Mixed Use zone.
3. Secondly, the Council finds the form of the building unacceptable[1].
4. Thirdly, the Council contends the proposal will have unreasonable impacts on amenity, particularly by way of traffic and car parking.
5. Fourthly, the Council contends that the proposed dwellings provide poor internal amenity.
6. Goal Number 4 seeks the review of the Council's decision. The request is based on amended plans substituted as the application plans at the commencement of the hearing. In summary the amended proposal involves the construction of a four storey building, containing 112 one and two bedroom apartments, about 300 square metres of office space and provision for 130 car parking spaces, most of which are within mechanical stacker units. Goal Number 4 requests the grant of a permit for the amended proposal.

1. Under the planning scheme the site is zoned Mixed Use. A permit is required for office; however, dwelling is an as-of-right use. A permit is required under the zone control to construct more than one dwelling.
2. Two overlay controls affect the land; the Special Building Overlay and the Environmental Audit Overlay. The matters relating to those overlays are not in dispute. We are satisfied that this proposal can meet the requirements of both overlays.
3. A permit is required to reduce the amount of car parking to less than what is required under the table to Clause 52.06-1, to waive the requirement to provide a loading bay and to alter access from the site to Bay Road, which is a Main Road - Category 1.
4. Decision guidelines to consider are set out in the various controls that trigger the need for the permit as well as at Clause 65.
5. From a strategic viewpoint, the site is located within an area identified by Bayside's local policy as a Business Employment Area. This area is relatively large, comprising the "main core" defined by the business zoning, and some areas zoned Mixed Use on the periphery.

1. Having considered the submissions and evidence, the details of the proposal and relevant matters under the planning scheme and legislation, the issues to be considered are:

1. Is there strategic support for the redevelopment of this site for an intensive residential use? 2. Is the mix of land uses acceptable?

1. Is the form of the proposed building is acceptable?

1. Is enough parking provided? 2. Are the traffic impacts acceptable? 3. Is a loading bay required? 4. Is satisfactory amenity provided for future residents?

Is there strategic support for the redevelopment of this site for an intensive residential use?

1. The Council contends that the proposal is not consistent with the State and Local planning policies directing higher density housing to locations within and around activity centres, in close proximity to public transport or in other locations where there is specific local policy support, such as Residential Opportunity Areas identified in the strategic framework plan in the MSS.
2. The Council also argues the site is not well positioned to accommodate higher density housing. It says the site is remote from principal and major activity centres, public transport is limited and only a limited range of facilities is located nearby.
3. We accept that this site is not located within the sphere of influence of one of the larger activity centres nor is it within a Residential Opportunity Area. However, we do not agree that this makes the site unsuited to residential redevelopment at the intensity proposed.
4. Firstly, this is a relatively large site with an area of over 4000 sqm. It is subject to few constraints. The buildings are not important and can be demolished, infrastructure is available and there is no significant vegetation. The site does not abut residential properties. The site is constrained to some extent by the Special Building Overlay and the Environmental Audit Overlay. However, as we have noted, the matters covered by those overlays (potential flooding and contamination) can be overcome. The Council does not suggest that they cannot.
5. Secondly, the site is zoned Mixed Use. It is a residential zone that falls within the suite of residential zones. It is part of the purpose of that zone to implement planning policy. While much of the focus during the course of the hearing related to the Council's policies with respect to development of the Business Employment Area, they are not the only policies in the planning scheme. There are many policies within both the state and local planning policy frameworks supporting urban consolidation, provision of more housing to accommodate Melbourne's growing population and the diversification of housing types available[2].
6. Thirdly, there are a broad range of services and facilities available. The site fronts a main road. Bus services forming part of the Principal Public Transport Network [PPTN] run along Bay Road. Although limited to one line, the bus service is regular, but importantly, connects with major activity centres and railway stations located a short distance away. Although more than 400 metres from larger activity centres, the site is located within walking distance of smaller local or neighbourhood activity centre on Bluff Road. That centre provides for daily needs and a small range of services. Further, given the availability of public transport, the site is not remote from larger activity centres or fixed rail public transport. We also observe that public open spaces and public facilities, including the secondary school, are within walking distance. All of these factors support the view that the site is suited to intense residential use and development.
7. Fourthly, we note permission has been granted by another division of this tribunal for a far more intensive residential use on the neighbouring land to the east [the 228 Bay Road case][3]. The tribunal found that the adjoining site is suitable for an intensive form of residential development for reasons similar to ours.

1. As was the circumstance in the 228 Bay Road case, the more critical or important issue from the Council's point of view is whether the proposal achieves an appropriate balance or mix between residential and commercial uses. The Council accepts that some form of residential development is appropriate. However, it submits that the proposal provides for too much residential and not enough commercial uses to generate employment opportunities sought under the policies and strategies for the Business Employment Area.
2. We agree with Mr Tweedie's observation that the tribunal in 228 Bay Road case did much of the "heavy lifting" in terms of reviewing and analysing the strategies and policies that have come into play and how they came about through the approval of Amendment C39. We do not think that we need to revisit that analysis. It is on the record in the tribunal's reasons.
3. We are not bound by the tribunal's findings in the 228 Bay Road case. We are required to review this proposal on its own merits. It is appropriate, however, that we have regard to the findings in 228 Bay Road, but ultimately, it is open to us to come to a different conclusion.
4. The policy at Clause 22.04 specifically supports and encourages both existing and new business to invest and expand in the Business Employment Area. This is evident when reading the policy objectives to transform a primarily industrial precinct into a key business employment node to help nurture and grow local businesses to facilitate and local employment.
5. However, it is part of the policy to encourage more intensive development, to encourage a diversity of uses on each site including commercial, industrial, warehouses and medium density residential housing. The policy specifically encourages residential development at the upper levels in areas where conflict with other uses located on adjoining sites is avoided. This site is ideal from that point of view. We do not see any real potential for conflict with other uses given what is approved to the east and proposed to the west.
6. The Council argues that the provision of too much residential is contrary to the policy. However, we note the tribunal's comments in 228 Bay Road when it said:

The panel clearly encourage a mix of residential and business uses within the area it recommended to being included in a mixed use zone and they did not recommend that the affected area be deleted from the business employment area policy. However, neither did the panel recommend special policy provisions to constrain the exercise of discretion, in respect of the affected land in this regard.

1. Further, on reviewing the policy for the Business Employment Area at Clause 22.05 (as it was then)[4] the tribunal said:

The amendments to the MSS and clause 25.05 [sic] which form part of Amendment C39 Part 3 did contain more specific policies in respect of the land use mix to be achieved, but as we have already observed, do not conclude that the mix of uses on any individual site should include a significant or predominant proportion of employment generating uses.[5]

1. The Business Employment Area is relatively large. The component of the Business Employment Area included within the Mixed Use Zone is relatively small with the majority of this area zoned Business 3. "Accommodation", a land use term which embraces "Dwelling", is a prohibited use in the Business 3 zone. However, "Dwelling" is an as-of-right use in the Mixed Use Zone. What follows from this is that the opportunity to develop medium density housing in the Business Employment Area is limited by the zoning and can only occur within the Mixed Use Zone.
2. It is therefore to be expected that if there is to be residential development, as supported by the policy, it must occur within the Mixed Use Zone and on those sites suited to this form of use and development. The size, position and attributes of the sites on the south side of Bay Road lend themselves to residential development. .
3. Further, we also agree with the observation made by our colleagues in the 228 Bay Road, that the Business Employment Area is relatively large and there is substantial opportunity within that part zoned Business 3 for redevelopment that will contribute towards providing for business and employment opportunities. We do not see the redevelopment of this site or the neighbouring site to the east as compromising the ability for the outcomes envisaged by the policy being achieved. The statutory controls essentially protect the area from being redeveloped exclusively for residential purposes.
4. The proposal makes some provision for commercial use in the form of the office space located at the front of the building fronting Bay Road. This accords with the policy.
5. Although residential use predominates, we find the proposal to be acceptable having regard to the context, the application of the planning scheme's policies as a whole and having regard to the zoning. We find ourselves in agreement with the views of the tribunal in the 228 Bay Road case that an intense residential development is acceptable in this context. .

Is the form of the proposed building is acceptable?

1. It is the Council's contention that the proposed building does not represent an appropriate design response for the land.
2. The Council acknowledges that the 15.6 metre front setback meets the prescription in the policy at Clause 22.04. However, it is concerned that:
   • the overall height exceeds the preferred height of 14 metres;
   • the building is long and continuous, without any meaningful central break;
   • the side setbacks do not provide satisfactory opportunity for landscaping; and
   • the site coverage is excessive.
3. In short, the Council submits that the proposed building is somewhat "monolithic".
4. There is no doubt that this is a very big building, however, that in itself does not make it inappropriate. Consideration needs to be given to the context of the land, both in strategic and physical terms[6].
5. From the strategic point of view, it is relevant that the policy at Clause 22.04 calls for intensive development in this area. The policy provisions contemplate 14-metre high buildings. We would expect that three to four storeys can be accommodated within a 14 metre height. There is nothing in the provisions of the policy limiting the site coverage. On examining the policy, it is clear that intense development in the form of large buildings will occur in the Business Enterprise Area.
6. From a physical point of view, the site is located in an area where large properties exist. It is to be expected that large properties can be developed in an intensive way, particularly given the zoning, the nature of surrounding land uses and the policies that apply. Permission has already been granted for an intensive development on the neighbouring site to the east. An intensive development is contemplated to the west. Even if the application to the west fails, this proposal needs to be considered in the light that policy envisages 14-metre high buildings in this location.
7. Given the strategic and physical context, we find that the proposed building is appropriate having regard to the overall size and depth of the site.
8. We accept that the height exceeds the preferred 14 metres specified by the policy. However, by and large, the extent to which it is exceeded is marginal over the front part of the site. The building is slightly higher toward the rear, but we do not consider this to be of any consequence either from an urban design and amenity viewpoint. This is because the extra height, that is, above the 14 metres, is required to incorporate facilities and/or to provide articulation and architectural detailing. The articulation and detailing of the building are important to the appearance and form of the building.
9. It is also true that the building is continuous down the length of the site. But it is also well crafted, articulated and broken into different elements. We doubt the provision of a break at some mid point, say 70 metres down the length of the site, is going to make a meaningful contribution to breaking up the mass of the building. It may have some benefit for persons observing the break face on; however, as one moves away from this position, say closer toward the street, the value of the break diminishes. In any event, the articulation of the building and its design provides sufficient visual interest and is appropriate.
10. The landscaping provided in the front setback meets the requirements of the policy. The landscaping in the front setback is clearly makes the main contribution to the streetscape character.
11. The setback provided to the east takes advantage of the adjacent laneway. However, we find there is still sufficient space to provide landscaping that will define the entry to the central core of the building and improve the appearance and outlook toward the laneway given that it has been "sandwiched" in between industrial properties. The setback to the rear is also appropriate. It will be landscaped. The proposed landscaping within the rear setback together with the vegetation on the school site provides a strong visual screen to the proposed building. The proposed building will not have an overbearing impact on the school.
12. Landscaping opportunities on the west side are far more limited. However, we agree with the applicant that landscaping between buildings should be viewed in its totality, taking into account the development potential and opportunities on neighbouring sites. We agree with the proposition that the equitable distribution of development rights does not necessarily mean that equal requirements will apply. While all sites should make a contribution toward setbacks, landscaping and daylight access, whether or not the extent of the contribution is fair or equitable will need to take into account the opportunities and constraints provided by each site. What needs to be achieved is a reasonable contribution from each adjoining site. This accords with the views of the tribunal in Cremorne Properties Pty Ltd V Yarra CC[7]. Given the size and proportions of the adjoining site to the west, sufficient opportunity exists for the provision of space between buildings and landscaping.
13. The site coverage is about 71%. We do not regard this as being excessive given the size and shape of the site; policy support for intensive redevelopment and the nature of development that can be expected in this area, including commercial development as supported by the Council.
14. In design terms, this building is well crafted. The Council's urban designer agrees in terms of its architectural merit.
15. Taking the above into account, we find that the proposed building is acceptable given the context.

1. Firstly, we are satisfied that sufficient parking is provided.
2. Under Clause 52.06, 2 spaces per dwelling and 3.5 spaces per 100 square metres of office are required. Applying these requirements, 224 spaces are required for the residential use and 11 to 12 spaces for the office. A substantial reduction in the car parking provision is requested as 130 spaces are to be provided.
3. We accept Mr Fairlie's view that given the nature of the development, it is appropriate to apply the requirements of Standard B16 at Clause 55 as a "benchmark" for the residential use. We also agree with his view that the provision of car parking at a rate of 3.2 spaces per 100 sqm or 10 spaces for the offices is also reasonable in the circumstances.
4. 112 spaces are to be provided for the dwellings, 10 for the offices, leaving 8 for residential visitors. Under Standard B16, 22 car spaces are required for visitors.
5. We accept the general proposition that the peak demand by residential visitors is unlikely to coincide with the peak demand for the office use. The office use will operate during business hours on weekdays, not after hours and on weekends the time when demand for spaces by visitors to the dwellings is likely to peak. Given this, there is ample opportunity for the sharing of spaces. The allocation of the office car spaces for residential visitors after business hours and at weekends results in 18 spaces for residential visitors being available during the likely peak visitor demand period.
6. The provision of 18 spaces for visitors at peak times is still 4 car parking spaces short of the 22 car spaces required under Standard B16. However, 18 car parking spaces is a large pool of visitor spaces. All of these spaces are likely to be occupied when there is an absolute peak in demand. Most times, however, spaces will be available for visitors. To the extent that there may be overflow parking into neighbouring streets, we find that it will be minimal in terms of the number of cars. Further, based on the survey information provided by Mr Fairlie, overflow parking can be accommodated in nearby streets given the low kerbside demand currently experienced. We doubt that the occasional overflow of parking will have any tangible impact on residential amenity.
7. We are also satisfied that the car parking layout is acceptable. Many spaces are within mechanical stacker units. This provision of car parking within stacker units is no longer uncommon. It is an example of innovation that is now readily accepted throughout Melbourne. There is nothing about this development to suggest that stacker units should not be used. We accept Mr Fairlie's evidence that the residents will become familiar with how to access them. We have no concerns about the car parking layout. It is satisfactory.

1. The Council does not raise concerns with respect to sight lines to Bay Road, which is a main arterial.
2. The amount of traffic to be generated by this development is relatively modest. It is in the order of about 450 vehicle trips per day, with a peak of about 55 trips within the peak hour period.
3. We conclude the traffic is modest on a comparative basis. If the land is redeveloped for an intense commercial purpose, as envisaged and supported by the Council, peak hour and overall volumes are likely to be higher than for a predominantly residential use.
4. VicRoads have no concerns with respect to this proposal subject to the inclusion of conditions. No evidence was provided to support the view that the traffic cannot be accommodated by the road network.
5. The traffic impacts are acceptable.

1. The Council contends that there are three reasons why a loading bay is required; firstly to accommodate commercial vehicles which will service the office, secondly, for waste collection, and, thirdly, to accommodate moving vans for the residential apartments.
2. With an area of about 300 square metres, the office is relatively small. We agree with Mr Fairlie's view that deliveries are likely to be via relatively modest size vehicles such as vans that can be accommodated within car spaces.
3. A waste management plan formed part of the proposal. The Council's engineers have assessed it. The Council accepts that satisfactory clearance is available for the type of vehicles used to collect waste, such as those envisaged in Mr Fairlie's evidence. Opportunity for waste collection by contractors with suitable vehicles can occur.
4. We accept that when the development is first completed and there is an influx of residents, there will be quite a bit of competition for access to spaces for loading and unloading. We doubt that one loading bay would be enough. It is likely that during that initial stage there are going to be issues that the body corporate or residents will need to manage. But once the initial occupancy process is over, we are of the view that a more subdued level of moving activity will occur. Again, how this process is managed will be up to the body corporate and/or residents. But given the size of the apartments, it is likely that furniture will be moved using smaller vans, trailers and the like, all of which can be accommodated in car parking spaces.
5. We find that it is appropriate to waive the requirement for a loading bay.

Is satisfactory amenity provided for future residents?

1. Council is concerned about three aspects of the proposal.
2. Firstly, the Council contends that the provision of internal bedrooms relying on borrowed light is inappropriate. Secondly, the Council contends that the building provides a poor sense of address to the residential units. Thirdly, the Council submits communal facilities are inadequate.
3. The 'Design guidelines for higher density housing', clearly say that the provision of habitable rooms relying on borrowed light should be avoided. However, they fall short of saying that they are unacceptable in all circumstances. There are many examples of apartments, approved by Councils and the tribunal, with internal bedrooms relying of borrowed light.
4. This is a very large development with a large number of apartments. There are only three bedrooms in the whole development that rely on a borrowed light arrangement. This is a very small number. Further, they are typically second bedrooms within each apartment. The development could be modified to remove rooms relying on borrowed light, however, given the very very small number and the utility provided by having an extra bedroom, we do not consider that a change to the internal layout is warranted. Further, there is no concern about sunlight and daylight to the other parts of the apartments.
5. As explained by Mr Sheppard, there are various ways of entering the building. There is an entry point located towards the front of the building. There is also a second point located midway along the east boundary. The entry point at the front is as close as you can get to a frontage and is clearly visible. The entry point that is midway along the building is defined by the access path and landscaping. We find the access points to be acceptable for a building of this type and size.
6. Communal facilities are provided at the top level of the building. They take the form of an open courtyard and common room. We do not accept that communal facilities should not be located at the top level. The top level is likely to be a better location than at ground level for a development of this type. This is because these spaces are likely to receive better solar access, less likely to be overshadowed, be subject to less built form impacts from buildings on neighbouring properties and provide users with a superior outlook form an elevated position. The quality of the space is likely to be better.
7. We also find that the overall size of the communal facilities is sufficient for the number of people who will occupy the proposed development.
8. All apartments have private open space. The communal areas supplement this. Further public open spaces are available in the area. The communal facilities are acceptable.

1. This is a good site for redevelopment. There is policy support for the proposal. We are satisfied with the design of the building, the car parking provisions, there will not be unreasonable impacts on the amenity of surrounding area and satisfactory internal amenity is provided. We will set aside the Council's decision. A permit is granted.

1. Mr Tweeedie makes application for costs against the Council. He submits that the Council's case is manifestly weak to the extent that it is untenable.
2. We do not agree. Clearly, we have found the proposed development to be acceptable. However, this does not mean that the position adopted by the Council is so weak that it is untenable.
3. The reality is that we have been required to exercise judgement in coming to the conclusion that a permit should be granted. We accept that the Council's policy position is at odds with the tribunal's decision in 228 Bay Road case. We have agreed with the tribunal's reasoning and interpretation of the policy position. Councils should be wary of repeatedly challenging the tribunal's findings on a specific issue. There are examples of costs being awarded when this occurs.
4. However, we have been required to exercise our judgement with respect to the appropriateness of not just the policy position, but also a range of other matters including the height of the building, its design, adequacy of parking etc.
5. Although we conclude that the proposal is acceptable, we find that the Council had an arguable case based on relevant planning matters. We find that the Council's conduct does not warrant the award of costs against it having regard to the matters set out in Section 109 of the VCAT Act.
6. We therefore find that the usual rule, as set out in Section 109(1) of the Victorian Civil and Administrative Tribunal Act 1998, should apply. All parties to bear their own costs. The application for costs is refused.

• Construction of a multi-storey mixed use development containing one hundred and twelve apartments and office.
• Use of land for office.
• Creation of access to a road in Road Zone - Category One.
• Reduction in car parking required under Clause 52.06 of the planning scheme.
• Waiver of the requirement to provide a loading bay under Clause 52.07 of the planning scheme.

1. Prior to the commencement of 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 this permit. The plans must be drawn to scale with dimensions and three copies must be provided. The plans must be generally in accordance with the Amended Plans dated 7 September 2011 together with corrections shown on plans dated 15 September 2011 but modified to show:

1. Water Sensitive Urban Design features in accordance with the requirements of Condition 9 of this permit. 2. All building heights to be shown on the plans in metres above Natural Ground Level.

1. Plans t show compliance with Melbourne Water and VicRoads conditions;

1. The location of all plant and equipment including baffling as required to ensure compliance with State Environment Protection Policy (Control of Noise from Commercial, Industrial or Trade Premises within the Melbourne Metropolitan Area) No. N-1. 2. Lift structures (including lift overruns mounted above the roofline of the buildings) must be shown on the plans and must not exceed 2.4 metres in height above the finished roof level. 3. A detailed schedule and description of construction materials, external finishes and colours (incorporating samples). The exterior colour and cladding must be of a non-reflective nature. 4. Provision of 2 bicycle parking rails at the frontage of the property. 5. The dimensions of all car spaces, all aisle widths and column widths and height clearances to be annotated on the plans. 6. Adequate sight lines to be shown on the plans consisting of 2m x 2.5 m pedestrian sight triangles where the proposed driveway/ramp intersects the front property boundary.
2. The use and development as shown on the endorsed plans must not be altered without the prior written consent of the Responsible Authority.
3. Prior to the commencement of works a Landscape Plan generally in accordance with the Landscape Plan submitted with the Application (John Patrick dated January 2011) must be submitted to and approved by the Responsible Authority. When approved, the plan will be endorsed and will then form part of this permit. The plan must be drawn to scale with dimensions and three copies must be provided.

1. Details of surface finishes of pathways and driveways. 2. A planting schedule of all proposed trees, shrubs and ground covers, including botanical names, common names, pot sizes, sizes at maturity, and quantities of each plant.

1. Landscaping and planting within all open areas of the site.

1. All species selected must be to the satisfaction of the Responsible Authority. 2. The landscape plan must also indicate that an in-ground irrigation system is to be provided to all landscaped areas.

1. Before the occupation of any building, all works relevant to that building including landscaping shown on endorsed plans must be carried out and completed to the satisfaction of the Responsible Authority.
2. The landscaping shown on the endorsed plans must be maintained (including that any dead, diseased or damaged plants are to be replaced) to the satisfaction of the Responsible Authority.
3. Prior to the commencement of any works, a Construction Management Plan shall be submitted to and approved by the Responsible Authority. When approved, the Construction Management Plan will then form part of this permit. The Construction Management Plan, is not limited to but must include measures relating to:

1. Hours of construction; 2. Control of noise, dust and litter;

1. Protection of public assets; 2. Communication with the council and the public; 3. The management of construction vehicles and construction vehicle parking; 4. Prevention of the deposition of mud or other materials on roadways. 5. The protection of pedestrian access along the laneway to the west on the land;

The Construction Management Plan must be implemented to the satisfaction of the Responsible Authority. The Construction Management Plan must not be modified unless with the prior written consent of the Responsible Authority.

1. Before commencement of works, a Parking Management Plan to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the plan will be endorsed and will then form part of this permit. Three copies of the plan must be submitted. The plan must include but is not limited to:

1. The allocation of car parking for individual properties and the commercial use in accordance with endorsed plans; 2. The allocation of spaces allocated to the commercial use being available for residential visitor use between 7.00pm and 6.00am on weekdays and all day on Saturday and Sunday;

1. Signs and pavement markings to direct and control the flow of traffic within and exiting the site including for the car park and loading areas. This includes warning signs for drivers and pedestrians.

1. Lighting and security arrangements for the car park.

The Parking Management Plan must be implemented to the satisfaction the Responsible Authority. The Parking Management Plan must not be modified unless with the prior written consent of the Responsible Authority.

1. Before commencement of works, a Waste Management Plan to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the plan will be endorsed and will then form part of this permit. Three copies of the plan must be submitted. The plan must include but is not limited to:

1. No bins stored on Bay Road. 2. Provision on the site for the collection of garbage and other solid waste by private contractor. This area must be graded and drained and screened from public view.

1. All waste material not required for further on-site processing must be regularly removed from the site. All vehicles removing waste must have fully secured and contained loads so that no wastes are spilled or dust or odour is created.

1. No vehicles permitted to obstruct the pedestrian access to the school.

The Waste Management Plan must be implemented to the satisfaction the Responsible Authority. The Waste Management Plan must not be modified unless with the prior written consent of the Responsible Authority.

1. Before the commencement of works, a detailed Stormwater Plan must be submitted to and be approved by the Responsible Authority. When approved, the Stormwater Plan will be endorsed and will then form part of this permit. The Stormwater Plan must include plans be drawn to scale with dimensions and three copies must be provided. The plans must be in accordance with the guidelines outlined in Clause 22.08 of the Bayside Planning Scheme and must show:
   1. The type of water sensitive urban design stormwater treatment measures to be used;
   2. The location of the water sensitive urban design stormwater treatment measures in relation to buildings, sealed surfaces and landscaping areas; and

Design details of the water sensitive urban design stormwater treatment measures, including cross sections.

1. The Water Sensitive Urban Design Stormwater Treatment System as shown on the endorsed Stormwater Plan must be implemented, retained and maintained at all times in accordance with the Urban Stormwater - Best Practice Environmental Management Guidelines, CSIRO 1999 to the satisfaction of the Responsible Authority.
2. All pipes, fixtures, fittings and vents servicing any building on the site except downpipes must be concealed in service ducts or otherwise hidden from view.
3. Before any building is occupied, the area(s) set aside for the parking of vehicles and access lanes as shown on the endorsed plans for that building, must be:;

1. Constructed; 2. Properly formed to such levels that they can be used in accordance with the plans;

1. Drained; 2. Line marked to indicate each car space and all access lanes; and 3. Clearly marked to show the direction of traffic along access lanes and driveways.

Car spaces, access lanes and driveways must be kept available for these purposes at all times to the satisfaction of the Responsible Authority.

1. Vehicular crossing(s) must be constructed to the road to suit the proposed driveway(s) to the satisfaction of the Responsible Authority and VicRoads. Any redundant existing crossing or crossing opening must be removed and replaced with footpath, nature strip, and kerb and channel to the satisfaction of the Responsible Authority and VicRoads. All costs associated with compliance with these requirements must be borne by the permit holder.
2. At no cost to VicRoads or the Responsible Authority, the permit holder is responsible for the relocation of any power poles, trees, guard posts, road furniture or services that may be required to construct the approved development.
3. Before development commences the Applicant must pay $3220.09 to the Responsible Authority for the removal and replacement of the existing street tree. This amount has been determined in accordance with Council's current policy for the removal of street tree(s). This amount may be increased by the Responsible Authority if an extension of time to commence work is granted and the amenity value of the street tree(s) has increased. The Responsible Authority, or a contractor or agent engaged by the Responsible Authority, must undertake the removal and replacement of the street tree(s). Any replacement planting will be at the discretion of the Responsible Authority.
4. Noise levels emanating from the premises must not exceed those required to be met under State Environment Protection Policy (Control of Noise from Commerce, Industry and Trade) No. N-1 to the satisfaction of the Responsible Authority.
5. All security alarms or similar devices installed on the site must be of a silent type in accordance with any current standard published by Standards Australia International Limited and be connected to a security service.
6. External lighting (domestic and commercial) must be designed, baffled and located so as to prevent any adverse effect on adjoining land, to the satisfaction of the Responsible Authority.
7. No plant, equipment, services or architectural features other than those shown on the endorsed plans are permitted above the roof level of the building(s) without the written consent of the Responsible Authority.
8. Plans for the construction of the outfall drain must be approved by the Responsible Authority in writing prior to the commencement of any works.
9. Drainage must be to the satisfaction of the Responsible Authority. Any paved areas must be graded/drained to prevent stormwater discharge into adjacent properties. No polluted and/or sediment laden run-off is to be discharged directly or indirectly into drains or watercourses and pollution or litter traps must be provided on site to the satisfaction of the Responsible Authority.
10. The use and development must be managed so that the amenity of the area is not detrimentally affected, including through the:

1. transport of materials, goods or commodities to or from the land; 2. appearance of any building, works or materials;

1. emission of noise, artificial light, vibration, smell, fumes, smoke, vapour, steam, soot, ash, dust, waste water, waste products, grit or oil; and

1. No polluted and / or sediment laden runoff is to be discharged directly or indirectly into Melbourne Water's drains or watercourses.
2. The ground floor office , lobby, lift area, store, communications room, switch room and sub station must be constructed with finished floor levels a minimum of 300mm above the applicable flood level.
3. The ground floor car parking area must be constructed with finished floor levels a minimum of 300mm above the applicable flood level.
4. The building/structure, including footings and eaves, must be set outside any easement or a minimum L5 metre laterally clear from the outside edge of the Banks Avenue Main Drain, whichever is greater.
5. The depth of footings for the buildings and structures must satisfy the angle of repose relative to the drain as per Melbourne Water's specification.
6. Prior to the development plans being endorsed and the commencement of works, the exact location of the Melbourne Water main drain must be identified and shown on the plans and Melbourne Water's appropriate development setback and angle of repose requirement must be complied with.
7. Prior to the commencement of works, detailed landscaping plans must be submitted to Melbourne Water for approval.
8. Prior to the commencement of works, a separate application direct to Melbourne Water must be made for any new or modified storm water connection to Melbourne Water's drains or watercourses.
9. Prior to the development plans being endorsed and the commencement of works, amended plans must be submitted to Council and Melbourne Water addressing Melbourne Water's conditions. Plans must be submitted with ground and floor levels to Australian Height Datum (AHD).

The flood level for the property is 30.24 metres to Australian Height Datum (AHD).

1. No parking spaces are to be located within 15 metres of the site frontage the satisfaction of the Responsible Authority.
2. A dedicated reversing bay must be provided in the centre of the visitor parking area to ensure all vehicles can exit the property in a forward direction to the satisfaction of the Responsible Authority.
3. The edges of the vehicular crossover must be angled at 60 degrees to the road reserve boundary to the satisfaction of the Responsible Authority.

1. A Certificate of Environmental Audit must be issued for the land in accordance with Part IXD of the Environment Protection Act 1970 prior to the commencement of works.

1. This permit will expire if one of the following circumstances applies:

(a) the use and development and use are not started within two 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 areas of concern relate to the height, length and overall size of the building; inadequate setbacks and opportunity for landscaping.

[3] See 228 Bay Road Pty Ltd v Bayside CC

[4] The policy was set out at Clause 22.05 at the time, however, it is now at Clause 22.04.

[6] The design principles at Clause 15.01-2 require that "Development must take into account the natural, cultural and strategic context of its location".

[7] [2008] VCAT 1202 see paragraphs 63-69