1. The Tribunal must give effect to the DDO. Notwithstanding the fact that the preferred height within the subject DDO is a discretionary limit, the Tribunal must avoid decisions which in effect render the specification of a preferred height meaningless. I agree with Mr Holdsworth, there needs to be special circumstances which warrant a departure from the preferred maximum specified by the DDO. 2. Special consideration should not be too narrowly construed. They could be: * characteristics of the proposal, for example, its social utility or the atypical excellence of its contribution to architecture and urban design, or * characteristics of the site, its size, its location, the sensitivity of its interfaces etc.

On the other hand special consideration should not be urban design and amenity considerations which would be broadly applicable on a general basis throughout the precinct.

18. We find the additional building height proposed is not an acceptable outcome. The approved built form already exceeds the preferred height under the DDO27, and we consider an additional increase above the building height already approved is asking too much. We consider it undermines what the DDO27 and policy context is seeking in terms of built form height for the site and the western edge of Precinct 3, but also for those parts of Precinct 3 to the east where change is sought under policy from moderate to high change, up to Burnley Street.
19. As it stands, the proposal is close to achieving a state of change akin to what policy is seeking for mid-rise growth sought for the high change area in the eastern portion of Precinct 3. We note Precinct 3 relates to the Swan Street East area which is intended to be a mixed-use area. We consider the proposal would undermine what is sought under the policy and the DDO27 with respect to the mid-rise form of change in growth sought across this precinct area.
20. DDO27 also states that to support exceedance of building height, the provision of private open space to dwellings should exceed the minimum standards in Clause 58.05-3. As we discuss later in our reasons, in some instances, this has not been achieved.
21. The reliance on the heights of building on the western side of Brighton Street for the proposed building height is somewhat misleading. Although it is argued by the applicant that the proposal will closely follow what has already been approved on land across the road from the site and which are under construction, we note that these parcels of land are in a different precinct to that of the site and which relate to 'Precinct 2 - Swan Street Retail'.
22. The site is on the western edge of Precinct 3 and has a role to play to accommodate taller built form but with a scaling up towards Burnley Street to the east. We note the applicant's argument that this is more of a reflection on those sites with direct frontage along Swan Street and not as relevant for sites that are behind such areas. However, we agree with Council that the proposal represents an undermining of the strategic intent to achieve a built form transition eastwards towards Burnley Street. In this sense, we consider the height of what has been approved is sufficient in terms of built form for change to occur on the site and to bookend the western edge of Precinct 3.
23. We consider the proposal is an acceptable outcome with one level deleted and the height reduced to resemble more closely that currently approved for the site. We will include a condition requiring amended plans showing one level deleted. We do not go so far as to nominate which level of the proposal is deleted, leaving that to the applicant under the advice of its designers to address in conjunction with Council's satisfaction.
24. Regarding streetwall height and building setbacks, we find the proposal generally acceptable.
25. The proposal includes a streetwall height to Brighton Street of four storeys or 11.8 metres which is within the preferred height of 14 metres under the DDO27. For Little Lesney Street, there is no specified streetwall height, however, the proposal includes a height ranging between 12.89 metres to 13.17 metres. We find these levels acceptable.
26. While Council and Mr Armstrong were critical regarding setbacks, we find what has been proposed generally acceptable. They are nuanced due to the curvilinear built form of the design with varying compliance and non-compliance due to this form.
27. We do not find the impacts of this variation adverse.
28. We do note that Mr Armstrong seeks a setback of the upper levels facing Little Lesney Street to offer some built form relief for residents on the other side of the railway corridor. We do not consider this necessary given our finding to delete one level of the proposal. We note this change will bring the overall building height closer to what was approved for the office development. We also note that setbacks from the south closely match those already approved with only minor variations. Accordingly, we do not consider there is a benefit to vary setbacks from the Little Lesney Street frontage.
29. Overall, we find the built form reasonable and accept the design concept with a curvilinear form with balconies on the corners offering breaks in form to assist with articulation and provision of amenity benefits.
30. We are not concerned with balcony overhang along Brighton Street. This will assist with pedestrian user comfort for this part of the street. We note a landscape plan was circulated showing planting of three Oriental Plane trees along the Brighton Street verge which we consider will contribute to improved landscaping along this part of the street and across the frontage of the site.
31. Regarding floor to ceiling heights, we note that the DDO27 does not require any requirements. We are comfortable with what is proposed and find what is proposed acceptable.

DO THE APARTMENT DESIGNS PROVIDE AN ACCEPTABLE RESPONSE?

1. As we have noted earlier, due to the nature of the request under section 87A to amend the permit and the obligations to consider Clause 58 with applications to amend a permit, we find that Clause 58 does not apply.
2. However, we also note the parties, and the evidence of Mr Twite have referred to Clause 58 in their various assessments of the proposed apartment designs and they have proceeded with considering Clause 58.
3. Although Clause 58 is not a relevant consideration in a statutory sense, it remains, in our view, a relevant consideration for our assessment of the apartment designs proposed in the amendment to the permit. We note that the proposal does not have to comply with the provisions of Clause 58 and are not bound by these provisions. However, they do provide some guidance for our assessment of the acceptability or otherwise of the proposed design and layout of the apartments.
4. We say this because the request to amend the permit relates to changing what was an approval for an office development to one that is residential. We find that a review of the apartment design and layout against Clause 58 will assist us because an assessment of an apartment development has not previously occurred due to what the permit currently approves.
5. The development of residential apartments seeks, according to Clause 58, to encourage reasonable standards of amenity for new residents and for responsive development to site and surrounding context. We find this aspiration relevant, and we will consider the proposal accordingly.
6. Mr Twite provided an assessment of the proposal against Clause 58 finding that several standards required a variation. In summary, his assessment found the following design elements were not satisfied:
   • Landscaping
   • Internal views
   • Accessibility
   • Private open space
   • Functional layout
   • Room depth
   • Windows
7. However, overall Mr Twite's evidence is that the proposed dwellings meet an acceptable planning outcome for future residents.
8. Council disagrees and says that the proposed dwellings are poorly resolved resulting in unacceptable amenity outcomes for future residents. Their concerns were noted in the Council's delegate report relating to:
   • the depth of the floor plates which have been adapted from an office use to a residential use resulting in poor levels of daylight and natural ventilation;
   • the inclusion of several dwellings with internal habitable rooms with no windows;
   • reliance on a lightwell which does not have a sufficient size to provide daylight access or natural ventilation to lower-level bedrooms;
   • potential overlooking to the private open space of lower-level dwellings;
   • the appropriateness of the acoustic attenuation measures proposed in the Amended Plans.
9. We note that, in our assessment, we consider many of the variations are relatively minor and are acceptable. There are some elements and apartment typologies that require re-design which we find can be appropriately conditioned.
10. In our assessment, we also consider noise and wind impacts, building entry and circulation and natural ventilation.

1. Landscaping is about supporting urban character, reducing visual impact and providing canopy tree cover that supports wellbeing, amenity and reduces urban heat.
2. The applicant circulated a landscape plan but did not provide landscaping evidence, but say that in this commercial setting, the proposed landscaping is appropriate. Mr Twite's evidence is that the standard is not met but the objectives are, and a variation is sought. His evidence is that:

I find the removal and replacement of the existing trees to be acceptable when taking into consideration:

• The inner-city location of the review site
• The existing and proposed surrounding built form context which is generally constructed to boundaries with areas of extensive hard paving
• The Planning Policy Framework which encourages urban consolidation and intensification of land.

1. Council says recent changes to policy under Amendment VC283 relating to urban tree canopy and urban heat increases the emphasis on landscaping which it says the proposal fails to respond to in any meaningful way, including landscaping with canopy trees.
2. We accept that in inner urban locations the provision of canopy trees and deep soil zones are challenging and can conflict with urban consolidation principles.
3. We note the site is currently developed with built form across the site and contains little existing vegetation apart from an area behind the existing dwelling at 11 Brighton Street which contains some planted trees.
4. We have had regard to the landscape plans prepared by Jack Merlo Design and Landscape circulated for information purposes along with the expert evidence in May 2025. They show the provision of canopy trees across the frontage of the site to Brighton Street. The landscape plan shows that these trees can be established without undue conflict with the first floor cantilevering. We consider these trees will assist with provision of canopy trees in the area. We also note there will be planting within the communal areas. We consider this will assist in introducing landscaping additional to what presently exists on the site and that the landscaping is acceptable in this location for a development of this scale.

1. The objective relating to internal views is to 'limit views into the private open space and habitable room windows of dwellings within a development'. The standard is that windows and balconies should be designed to prevent overlooking of more than 50% of the private open space of a lower level dwelling directly below and within the same development.
2. Mr Twite states that there is some opportunity for downwards views to apartments that have terraces at the podium level and level 9. His evidence is that 'slab edge protrusions of apartments directly above those extended terraces at podium and level 9 provide a reasonable obstruction and therein manage the potential for direct overlooking'.
3. We accept this evidence as a reasonable amenity outcome for the potentially affected residents and that the objective can be met.

1. The planning scheme calls for development to be designed to respond to protect residents from external and internal noise sources. Clause 13.05-1S relating to 'Noise management' seeks to assist the management of noise effects on sensitive land uses and to do this through suitable building siting and design, including orientation and internal layout, urban design and land use separation.
2. We note Council concedes the site is not located within 50 metres of any live music venue. However, Council does say that the proposal has an interface with a car wash and service station and is near the Union House Hotel to the north-west and railway corridor to the south.
3. We have had the benefit of acoustic evidence from Mr Tardio who indicates that nighttime is the critical period given the 24-hour operation of the service station and that once compliance with noise levels can be established for this period, then it would be very unlikely noise impacts would occur during the less sensitive time periods.
4. From his assessment, Mr Tardio identifies that the north facing ground floor apartment terrace would not comply with the regulated noise limits. We note the applicant has suggested this be removed. We accept this change not only for reasons of noise protection but also from a practical private open space perspective that we touch on later in these reasons. Other than this aspect, his assessment identifies the following design responses:
   • A glass screen structure along the northern boundary up to and including Level 3, with apartment balconies and openable windows setback behind this screen.
   • Avoidance of windows directly overlooking the BP site up to and including Level 3.
   • Terraces on northwest and northeast corners enclosed along the northern boundary line up to and including Level 3.
   • Minimum 1700mm high balustrade screening to exposed balconies above Level 3.
   • Acoustic shrouds and low level openable windows where exposed along the northern boundary.
   • Balcony soffits lined with an acoustically absorptive material. This is required to avoid reflected noise increasing the overall noise level where a soffit or structure is positioned overhead of the measurement location.
5. Mr Tardio also refers to the architects providing some working detail on the proposed window shrouds, slab edges and low level operable windows. Together, he considers the above design elements will achieve a suitable response to noise impacts.
6. Regarding noise from road and rail and the nearby hotel, Mr Tardio accepts the earlier acoustic assessment demonstrates noise will be compliant and below limits within the proposal from these sources.
7. We note the owner of the service station has considered Mr Tardio's assessment and are supportive.
8. We accept the evidence of Mr Tardio and find that noise impacts on the proposal will be acceptable.

1. Development of taller built form can generate impacts from disruption to wind circulation. The objective relating to wind impacts relates to ensuring built form, design and layout of development does not generate unacceptable wind impacts within the site or on surrounding land. In this regard, development above five storeys should not cause unsafe wind conditions and achieve comfortable wind conditions.
2. We have had the benefit of an updated wind impact assessment prepared by Vipac Engineers and Scientists Limited dated 6 May 2025 which was circulated as further information with the expert evidence, and which assessed the amended plans.
3. The findings from the wind impact assessment identifies that:

The proposed design has a number of features that are expected to be beneficial to the pedestrian wind environment. This is inclusive but not limited to the following:

• Podium-tower separation;
• Solid canopy along Brighton Street;
• 1.2m high raised planter boxes and colonnades along Little Lesney Street;
• Lobby entrance setback;
• Main entrances located away from the corner.

With the design features listed above, and in consideration of the shielding received from the 13-storey development under construction to the west at 8 Brighton Street, comfortable winds are expected. While some elevated wind levels are expected, wind speeds are expected to be within the recommended walking and standing comfort criteria at their respective locations.

The larger private balconies on level 4 and level 9 feature 1100mm high planter boxes with planting on top up to 1.7m, which are expected to be beneficial to the wind environment. Some elevated wind levels are expected at the corners. However, these balconies feature curved corners, which are expected to alleviate the issues. In addition to the slab edge above and protruding colonnades, wind speeds are expected to be within the recommended walking comfort criterion.

We note that many of the corner located private balconies also feature 1700 high glass screens. These are expected to provide more than sufficient shielding to the corner balconies. Further detailed wind studies are recommended to optimise their height to properly achieve the balance between natural ventilation performance and balcony wind comfort targets.

The rooftop terrace is shielded by the development itself, as well as 2400mm high screening to the Roof Plant. Furthermore, landscaping is proposed on 1100mm high planters along the perimeter. As such, wind speeds are expected to be within the recommended Standing comfort criterion. The key dwell areas are located away from the building edge, shielded by the proposed landscaping, or beneath an arbour structure. As such, the communal alfresco dining area is expected to have wind levels within the more stringent sitting comfort criterion.

The wind conditions would be expected to fulfil the safety criterion throughout the site.

1. Council was critical of reliance on the built form of new development on the opposite side of Brighton Street and on reliance of landscape treatments to ameliorate wind impacts. Despite these concerns we note the wind impact assessment finds that 'the proposed development is not expected to cause unsafe wind conditions in the public land, publicly accessible areas on private land, private open spaces or at communal open spaces. In addition, the publicly accessible areas in and around proposed development are expected to achieve comfortable wind conditions in accordance with their use case.'
2. We note the assessment recommends a scaled wind tunnel study be conducted in detail design to quantify the wind conditions and determine the proper wind control measures where necessary. The applicant indicated it would accept a condition to undertake such a study.
3. Overall, we accept the outcomes of the wind impact assessment and will include a condition for a wind tunnel study to fine tune any design details to further ensure wind impacts are acceptable. Wind impacts are not considered to be significant, and adequate protections are in place in the design to mitigate the adverse impacts from any disruptions to wind circulation.

1. The objective is to ensure the design of dwellings meets the needs of people with limited mobility, with the standard specifying that at least 50% of dwellings should provide enhanced access within the dwelling, main bedroom and bathroom.
2. Mr Twite's assessment finds that 50.9% of dwellings will meet the accessibility requirement, but that a notation should be included on the plans that the shower requirements for type A or B bathrooms are hobless (no step). We include a permit condition for this notation and are satisfied that the objective will be met.

1. For building entry and circulation, the relevant objective is to provide each dwelling and building its own sense of identity, a safe, functional and efficient layout for the movement of residents and for adequate access to daylight and natural ventilation along internal communal areas.
2. Council says the internal corridors have no external windows and that whilst a light court has been provided in the centre of the development opposite the lift wells, each of the corridors above the ground floor template terminate at the entry to each respective apartment with no opportunity for natural daylight to reach these spaces.
3. Council says this is in part a reflection of the change from an office floorplate to residential with individual apartments on each floor level.
4. We note, levels 1 and 2 include return corridors that provide access to apartments 104 to 109 and 204 and are accessed from the common corridor adjacent to the lifts via doorways. Both side corridors have no access to daylight and may also suffer from a lack of natural ventilation because of the doors.
5. We consider this is a poor design outcome. However, we do not consider it a threshold issue to refuse the grant of a permit. Accordingly, we find that a redesign of the part of the proposal is necessary to provide for a source of daylight to these side corridors and we will include a condition. It may be provided by extending the central light court east and west to provide a source of daylight or by other design means. This is a matter for design. It will likely result in some redesign of the apartment layouts and potentially result in a reduction in the number of apartments. We consider this is necessary to achieve an improved outcome regarding daylight access to these corridor spaces. We consider any redesign provides an opportunity to improve on the living room sizing and daylight access to those apartments affected.

1. The objective of this standard is 'to provide adequate private open space for the reasonable recreation and service needs of residents. The standard calls for specific metrics based on the number of bedrooms.
2. Mr Twite's evidence is that apartment types B5, B6, B11, B17, B25, C3, C6, C7, C9, C13 require a minor variation in balcony dimension due to their curved shape. However, his evidence is that the minimum area requirements are all met and that he considers adequate private open space is provided and is reasonable.
3. In addition to Mr Twite's analysis and evidence we note the following non-compliances with the standard:
   1. Type C14 (Apartment G01): at ground level, a three bedroom/three bathroom dwelling of 177 square metres has three terraces two of which are located off a bedroom (5 square metres and 8 square metres in size), and a main terrace off a living area that is 13 square metres in lieu of the requirement under the standard of 25 square metres.
   2. Type A8 (Apartment 107): at level one, a one bedroom dwelling with a balcony of 1.6 metres x 4.4 metres, i.e. 7 square metres area (in lieu of the required 8 square metres). The balcony is completely covered by a floor above and faces east with the depth of the balcony set in 4.4 metres from the boundary, in effect it is not open to the sky. The minimum dimension of this balcony in either direction according to the standard should be 1.8 metres.
4. We accept Mr Twite's evidence that the apartment types he notes in his evidence are acceptable and will provide a reasonable level of amenity for residents.
5. We find that the size and configuration of the terraces to apartments G01 and 107 fall below the standard in a way that does not provide an acceptable level of amenity for residents. We will include a permit condition to revise these terraces to comply with the standard and encourage the applicant to review the configuration and orientation of the terrace for apartment 107. We note that it was considered in the hearing that the northern bedroom and terrace in apartment G01 was to be either deleted or re-located and suggest this is an opportunity to improve the size of the private open space terrace that is located off the living room. For apartment 107, there may be an opportunity to merge with apartment 209 on level 2 as a double storey apartment to ensure an improved amenity outcome. This will be a matter for design to address.

1. Relating to internal amenity, the functional room layout seeks 'to ensure dwellings provide functional areas that meet the needs of residents'. The minimum room dimensions including width, depth and area are set out for bedrooms and living rooms.
2. With regards to bedrooms, we note Mr Twite's evidence is that all bedrooms satisfy the relevant minimum size dimensions.
3. With respect to living rooms, we note that apartment types A1 (i.e. five dwellings 104, 105, 204, 205 and 305), A7 (one dwelling 209), A8 (one dwelling 107), A10 (one dwelling 304), A12 (one dwelling 309), A13 (ten dwellings 405, 406, 505, 506, 605, 606, 705, 706, 805,806) , B9 (one dwelling 307), B10 (one dwelling 310), B11 (one dwelling 311), B13 (five dwellings 403, 503, 603, 703,803), B15 (five dwellings 408, 508, 608, 708, 808), B17 (five dwellings 410, 510, 610, 710, 810), B19 (three dwellings 106, 206, 306) all do not meet the minimum dimensions.
4. Although this results in 40 out of the 112 apartments (or just over 35% of the dwellings) not specifically satisfying the minimum widths, we note Mr Twite's evidence that many of the apartments satisfy the minimum area requirements including:
   • A1 - due to a minor intersect with a bedroom wall.
   • A7 - due to the minimum width being 2.8 metres, albeit the overall area is 10.6sqm and the width is exceeded in the other dimension.
   • A8 - due to the minimum width being 3 metres, albeit the overall area is 10.8sqm and the width is exceeded in the other dimension.
   • A10 - due to the minimum width being 3.08 metres, albeit the overall area is 11sqm and the width is exceeded in the other dimension.
   • A12 - due to the minimum width being 3.2 metres, albeit the overall area is 11.2sqm and the width is exceeded in the other dimension.
   • A13 - due to the minimum width being 3.07 metres, albeit the overall area is 11.1sqm and the width is exceeded in the other dimension.
   • B9 - due to the minimum width being 3.3 metres, albeit the overall area is 12.9sqm and the width is exceeded in the other dimension.
   • B10 - due to the minimum width being 3.55 metres, albeit the overall area is 13.8sqm and the width is exceeded in the other dimension.
   • B11 - due to the minimum width being 3.53 metres, albeit the overall area is 13.4sqm and the width is exceeded in the other dimension.
   • B13 - due to the minimum width being 3.42 metres, albeit the overall area is 13.5sqm and the width is exceeded in the other dimension.
   • B15 - due to a minor intersection with a bedroom wall, albeit the overall area is 13sqm.
   • B17 - due to the minimum width being 3.44 metres, albeit the overall area is 13.4sqm and the width is exceeded in the other dimension.
   • B19 - due to a minor intersection with a bedroom wall, albeit the overall area is 13.4sqm and the width is exceeded in the other dimension.
5. Mr Twite's evidence is that, based on the above and having regard to the layout of each apartment, he is satisfied the apartments provide functional areas for the needs of future residents.
6. We find that, for many of the apartments, living room widths requiring a variation remain functional with acceptable widths or variations that are relatively minor. However, we also find that, there are concerns with other apartments where the relevant standard is not met and that the minimum amenity needs of residents may be compromised, we accept that the standards under Clause 58 are not applicable and are a guide only. However, due to some dwellings not satisfying minimum standard dimensions, we find that a redesign or change is required to improve functionality. The minimum standard is a guide to what room width is acceptable for minimum amenity in living areas in terms of furniture layout, a sense of space and enjoyment for residents (our emphasis). It is not an onerous standard to meet and falling short or below these minimum dimensions is problematic and unnecessary. There is ample opportunity for a redesign to ensure future residents' amenity is catered for and going below these dimensions are unjustified.
7. We are particularly concerned with apartment 209 (typology A7) on level 2 and find the narrow width of 2.8 metres in lieu of 3.3 metres is unacceptable coupled with the configuration of the terrace. There is scope for this apartment to be redesigned to merge with the ground level dwelling below it into a double storey typology.
8. Similarly, for apartments 309 (typology A12), 405, 406, 505, 506, 605, 606, 705, 706, 805 and 806 (typology A13) that do not meet minimum standards, there is scope for a reconfiguration and redesign to provide minimum living room widths.
9. Room widths are an important aspect of dwelling amenity. Unlike other standards and issues with apartment design, once set, there is no remedy to create a sense of acceptable and workable space, and residents will be subject to a lesser amenity than is currently expected as a minimum in industry standards today, regardless of Clause 58. Apartments designed today will be inhabited by residents for years to come and ensuring at the outset a minimum standard is adhered to is a reasonable ask. There is a reason why these minimum dimensions were set in the work of the 'Apartment Design Guidelines for Victoria, 2021'[18] and translated into Clause 58. These standards set out how apartments can be designed to provide good functional places to live. On why this is important the guidelines say:

Functional apartments have layouts that meet the needs of residents and room sizes and configurations appropriate for their intended use. ... The long-term needs of a community require a range of housing types so people of different ages, backgrounds and needs are provided for.

1. We accept that the guidelines and standards are not strictly applicable to this application, however, we are not persuaded that what is proposed will result in an acceptable outcome relating to amenity for some of the apartments and their respective future occupants. We will require by way of a permit condition that the relevant apartments outlined above are redesigned or changed to meet the minimum living room requirements.

1. The objective relating to room depth is 'to allow adequate daylight into single aspect habitable rooms'. The standard relates to single aspect dwellings and sets out minimum room depths measured from the external surface of the habitable room window to the rear wall of the room.
2. Mr Twite's evidence is that two apartments A7 and A12 require a variation as they have dimensions slightly in excess of the standard. We find this acceptable as the exceedance is minor, the room depth to kitchen areas is acceptable and only two apartments are affected. We note however, that other changes to these apartment typologies is required and an opportunity emerges for their room depths to be either maintained or improved.

1. The objective is to allow adequate daylight into new habitable room windows. The standard to be met requires windows to habitable rooms be located on an external wall where it is clear to the sky at specific dimensions.
2. Mr Twite states that apartments A1 (five dwellings 104, 105, 204, 205, 305), A6 (eight dwellings 113, 211, 312, 411, 511, 611, 711, 811), A11 (one dwelling 308), A12 (one dwelling 309), B1 (three dwellings 101, 201, 301), B2 (two dwellings 102, 202), B3 (one dwelling 203), B13 (five dwellings 403, 503, 603, 703, 803), B22 (one dwelling 103), C14 (one dwelling G01), E2 (one dwelling 108), E3 (one dwelling 109), E6 (one dwelling 207) and E7 (one dwelling 208) have a study with no windows, i.e. no natural light or ventilation.
3. This means that 32 of the 112 apartments (or just over 28% of all apartments) contain a space that will be reliant upon artificial light and ventilation. We consider that this variation relates only to studies. These are rooms that have no doorway and are more internal spaces that are not proposed to be used as bedrooms. On this basis, we find they are an acceptable outcome. We consider that there may be opportunities created with some of the redesign of the apartments where access to daylight may be improved for these rooms.
4. We address daylight modelling and the evidence of Mr Talacko more specifically later in our reasons.

1. Regarding natural ventilation the objective is to encourage natural ventilation and allow occupants to effectively manage natural ventilation of dwellings.
2. The evidence of Mr Twite is that 63.4% of the apartments will have effective cross ventilation with a minimum breeze path of 5 metres and a maximum breeze path of 18 metres. We note this complies with the relevant standard. We accept the evidence of Mr Twite in this regard.

1. Overall, we find the design response of the apartments generally an acceptable outcome. However, we also find that there are specific areas requiring a redesign of apartment layout to achieve an improved amenity outcome. In particular, the north-east corner of the proposed development at ground floor level and levels 1 and 2 require attention to design:
   • Apartment G01 on the ground floor level. It is the only dwelling proposed at ground level and is located on the north east corner of the site. It is a three bedroom, three bathroom dwelling at around 177 square metres in area which is generous to accommodate a family. The apartment is accessed via the ground level lobby and is not able to be accessed from the laneway it abuts. It has three terraces, two minor terraces (5 square metres and 9 square metres) off bedrooms and a primary terrace accessed from the dining/living area. None of them are open to the sky.

The apartment contains an in-board study with no access to natural light and ventilation. However, it is proximate to the primary terrace and likely to benefit from daylight if the study wall is glazed. We have concerns relating to the overall amenity of this dwelling. The terrace/outdoor private open space at 13 square metres falls short of the required minimum standard of 25 square metres. Additionally, as this terrace is not open to the sky and is completely covered by built form from level 1 above, we find that it's utility and amenity is poor.

We find that the lack of private open space to be an unacceptable outcome requiring a redesign. We note the applicant accepts that, to improve protection from noise the northern bedroom and associated terrace be deleted and/or relocated. We consider this is an opportunity to improves the overall amenity with regards to not only noise protection but for private open space as well.

• Apartment 107 (typology A7) regarding the width of the living room and apartment 209 (typology A8) with regards to the orientation of the private open space terrace.
• Similarly, for apartments 309 (typology A12), 405, 406, 505, 506, 605, 606, 705, 706, 805 and 806 (typology A13) that do not meet minimum standards, there is scope for a reconfiguration and redesign to provide minimum living room widths.
• Lastly, a more general redesign is required to improve daylight access to side corridors that provide access to apartments. We consider a redesign of the central light court is required (most likely through extending its length) to provide access to daylight. We consider there may be opportunities arising from this redesign of layout to further improve living room sizing and daylight access to apartments.

1. Regarding off-site amenity impacts from overlooking and overshadowing, we find the proposal does not have significant impacts. We note that the nearest residential development is located to the south on the other side of the railway corridor and that in terms of overshadowing the effects are primarily limited to the railway corridor. Our views in this regard are also somewhat strengthened by our finding that one level of the proposal be deleted thus reducing overall building height leading to what would be reductions in the risk of overlooking and the extent of overshadowing as well as impacts from visual bulk.

1. Council raised concerns regarding the daylight amenity to the proposed dwellings. They say the daylight assessments provided by the applicant rely on a specific reflective paint to achieve an acceptable daylight factor, and that in reality residents and future occupants may paint walls/ceilings or resurface floor areas with materials that will effectively reduce the daylight factor to an unacceptable level. They are concerned that the modelling method used by the applicant is not consistent with CASBE[19] guidelines.
2. The Tribunal's interim orders dated 20 June 2025, and 30 June 2025 allowed for post-hearing submissions to be lodged regarding clarification from Mr Talacko with daylight modelling and assessment and for parties to respond in writing.
3. In response, Council's submission post-hearing states that:

... in order to achieve an acceptable level of internal amenity for future occupants of the development, it is necessary to achieve the daylight standards that are sought by the CASBE Best Practice Standards and as such, the Permit Application should be considered by the Tribunal against those standards as they currently apply and have applied since 1 July 2024. While the Best Practice Standards did previously contemplate alternative assumptions in the modelling, that has not been the case for more than a year.

1. The applicant submits that the daylight amenity of the apartments are acceptable and the methodology is appropriate. They rely of the evidence of Mr Talacko.
2. During the hearing Mr Talacko presented his evidence and explained his methodology. Mr Talacko says that in previous decisions the Tribunal has accepted the nomination of a specific reflective paint in daylight modelling, and that the ESD assessment was undertaken using the Green Building Council of Australia's GreenStar tool as it is more comprehensive than the CASBE endorsed BESS[20] tool. He explained that the GreenStar assessment contains recently developed dynamic modelling for daylight and takes into account the built form under the DDO. In contrast the BESS tool is static, modelling daylight conditions on a cloudy day without analyses of reflectance values and should be considered the worst case scenario.
3. Mr Talacko explained during his oral evidence that his report was prepared prior to the Council update of 1 July 2024. In a further submission post hearing, the applicant submits that:

Mr Talacko gave oral evidence that adopting the internal surface reflectance values in Council's preferred CASBE Best Practice Standards can only produce a non-compliant outcome. This is the case even with a four-storey building on the neighbouring site, which he used as an example during his evidence.

As observed during the hearing, Mr Talacko's approach has been accepted by the Tribunal in many cases.

1. The applicant references several previous Tribunal decisions[21] where his evidence was accepted by the Tribunal. In this case we also accept Mr Talacko's evidence that the predicted daylight factor for the proposed dwellings are acceptable, and his methodology utilising the GreenStar tool are appropriate.
2. We also accept Mr Talacko's evidence that the BESS tool is less sophisticated than GreenStar in cases such as this, where built form modelling takes into account impacts on daylight from adjacent buildings. We find the course adopted by Mr Talacko to be sound.

1. Regarding equitable development opportunities, we note the area is experiencing change and given the location of the site in an inner urban area of Richmond, in the SSMAC and that the land abutting to the north containing a service station is now also proposed to be redeveloped, it is appropriate that this issue is considered.
2. We are aware that the DDO27 and policy under Clause 15.01-2L relating to 'Building design' calls for development to provide separation and achieve setbacks to afford neighbouring sites an equitable development opportunity and acceptable amenity outcome in terms of daylight, ventilation and outlook.
3. In its submission, Council expressed concern that the amended plans did not demonstrate achievement of the minimum setbacks including a 4.5 metre setback from the northern boundary and eastern laneway. Council says failing to achieve the relevant setbacks required by the DDO27 means the proposal does not allow reasonable future development opportunities for the service station land.
4. The applicant advised that it has been working with the owner of the service station land to ensure the development potential of that land is not materially impacted by the proposal and that this has been informed by expert analysis. To this end, we note the evidence of Mr Tardio and Mr Talacko have, respectively, undertaken various modelled acoustic and daylight analysis given the proposal to redevelop the service station site.
5. The design of the proposal includes a recessed area along the northern elevation that if mimicked by any redevelopment of the service station land will achieve adequate protection of both development opportunity and protection of amenity and daylight access as well as acoustic protection.
6. We also note that an agreement has been reached between the applicant and owner of the service station site that, subject to conditions relating to daylight, acoustic and screening measures, the proposal is supported and that an equitable development outcome can be achieved between the two sites.
7. We accept this position and the work of the respective experts and find that the proposal can achieve provision for equitable development opportunity with the service station land to the north, subject to inclusion of the agreed conditions.
8. We note that on the elevation bordering the eastern laneway, setbacks are partially not achieved due to the curvilinear form of the proposed building. We do not consider these variations which are relatively minor will result in the lost opportunity for the land to the east to be redeveloped in the future given the setbacks provided and the separation provided by the laneway itself. We consider this a satisfactory outcome.

ARE THE PROPOSED CAR PARKING AND VEHICLE ACCESS ARRANGEMENTS ACCEPTABLE?

1. The proposal is to amend an existing permit to convert an approved office complex to a mix-use development with food and drink premises at ground floor and residential apartments above.
2. The approved commercial development of the site comprises[22] 10,035 square metres of office floor space and 166 square metres of floor space allocated to the food and drink premises. A total of 72 car parking spaces was proposed to be provided within a two-level basement car park. Access was to be provided from Little Lesney Street. A car parking reduction of 234 spaces was approved for the development.
3. A total of 117 bicycle spaces was to be provided on-site with a further six bicycle spaces within the Brighton Street verge for visitors and customers.
4. An on-site loading bay accessed directly off Little Lesney Street was also proposed.
5. The amended proposal (as shown in the substituted amended plans) shows the offices replaced with three food and drink premises with a total floor area of 493 square metres and 112 apartments. A total of 113 car parking spaces is now proposed within three basement levels. We note the site is within the PPTN and that no visitor parking is required under Clause 52.06-5.
6. The amended proposal also includes provision of 131 on-site bicycle spaces, and a further 18 spaces located within the Brighton Street verge. This exceeds what is required for bicycle parking under Clause 52.34 relating to 'Bicycle Facilities'.
7. Access is proposed via a two-way ramp from Little Lesney Street with provision of two spaces at the entry for a car share. Loading is proposed to occur on-street and waste collection will be provided via a private contractor within the basement.
8. The car parking allocation proposed is:
   • no spaces will be allocated to the 28 one bedroom dwellings (shortfall of 28 spaces);
   • 54 spaces will be allocated to the 57 two bedroom dwellings (shortfall of three spaces);
   • 54 spaces will be allocated to the 54 three bedroom dwellings (meeting the statutory rate);
   • no spaces will be allocated to residential visitors (none are required to be provided);
   • three spaces are to be provided to the food and drink premises (a shortfall of 17); and
   • two spaces are to be provided for car share vehicles (none are required to be provided).
9. The above parking allocation results in an overall shortfall of 45 parking spaces which is sought to be waived under Clause 52.06-3 of the planning scheme.
10. The purposes under Clause 52.06 relating to 'Car Parking' includes, amongst others, ensuring car parking is provided in accordance with the Municipal Planning Strategy ('MPS') and the Planning Policy Framework ('PPF'). It also seeks to ensure an appropriate number of parking spaces is provided having regard to the demand likely to be generated, the activities on the land and the nature of the locality. In addition, the purposes include reference to supporting sustainable transport alternatives to the motor car.
11. Policy under Clause 02.03-7 - 'Transport' and Clause 18.01-3L - 'Sustainable transport' includes referring to encouraging lower amounts of car parking and increased support for sustainable forms of transport to encourage reduced use of the private motor vehicles. Development which reduces reliance on private cars is supported.
12. Clause 18.02-4L-01 relating to 'Car parking' seeks to support reduction in car parking where there is appropriate public transport, development is unlikely to unreasonably impact existing on-street parking and development provides adequate bicycle parking.
13. The applicant says, generally, the proposed amendment achieves these elements. In this regard, the applicant relies on the traffic evidence of Mr Furness.
14. The applicant and the evidence of Mr Furness noted that Council did not object to the proposal based on traffic or parking concerns and that the amended plans responded to Council's Traffic Engineers with the parking and access layout of the basements satisfying the requirements under Clause 52.06-9.
15. The applicant and evidence say the provision of parking is appropriate for the proposal given its location proximate to East Richmond station (190 metres), the Swan Street tram (140 metres), Burnley station (720 metres), Richmond station (900 metres) and bus routes on Punt Road (940 metres).
16. They say the dispensation for 45 parking spaces is much less than the 224 spaces approved for the office development and represents reasonable compliance with policy directions for a modal shift in transport usage to sustainable forms such as public transport, walking and cycling.
17. Mr Armstrong was concerned that demand on the extent of on-street parking would increase because of the proposed amendment and would generate adverse impacts on parking availability. He said on-street parking is primarily permit parking for residents and that staff associated with the proposed food and drink premises would compete for parking in the local streets.
18. The evidence of Mr Furness was that staff have the benefit of good public transport and that impacts would be limited by the business operating hours of cafes and the like and not expected to have significant adverse impacts on local parking outside of such times. His evidence was that the level of overflow car parking would be modest when compared to what occurs in an activity centre such as the SSMAC. The parking surveys in the evidence of Mr Furness identified that on-street is highly controlled with various time restrictions. The survey results showed 86 vacant on-street spaces including 47 in Swan Street. Having regard to these results and the nature of the proposal it was the view of Mr Furness that parking impacts would be acceptable.
19. The provision of a car share facility located at the entrance to the basement car park was considered regarding operation and safety aspects. In response to questions from Mr Armstrong, Mr Furness believed the car share facility can be appropriately managed as a subscriber service with no security issues.
20. Regarding traffic impacts, the evidence of Mr Furness was that the site is surrounded by the following road network:
    • Brighton Street to the west which is a two-way local road 10.9 metres to 11.1 metres wide with parking on both sides of the carriageway.
    • Little Lesney Street to the south which is a laneway 4 metres wide with no footpath and no on-street parking. The evidence of Mr Furness identifies that while Little Lesney Street is shown as one-way on the Melway map, there is no signage to this effect around the site.
    • An un-named Council laneway to the east which is 3.8 metres wide with no on-street parking.
21. To the north of the site is Swan Street which is an arterial road within the TRZ2 with two lanes of traffic shared with a tram service with both morning and afternoon clearway periods.
22. The evidence identified the proposed amendment would generate an additional 131 vehicle trips per day (The approved office development would generate 173 vehicle trips per day compared to 304 vehicle trips per day generated by the proposal). But that this amount of additional traffic generated by the proposed amendment would be more spread out throughout the day compared to morning and evening peaks associated with the commercial form of development. This was reflected in the evidence with 36 peak hour trips for the office development compared to 32 for the proposed amendment.
23. The evidence was that this amount of traffic would be acceptable and able to be accommodated within the surrounding road network. Mr Furness considered traffic with the proposed amendment would be spread along Little Lesney Street accessing Brighton Street, Harvey Street and Mary Street to Swan Street. Thus, the additional traffic load would be spread across the surrounding street network with no unreasonable impacts or reduction in traffic safety.
24. Access along Little Lesney Street would be potentially subject to conflict because of its two-way access along a narrow laneway form. The evidence of Mr Furness was that:

Little Lesney Street provides a single traffic lane for two-way traffic adjacent to the site, between Brighton Street and Harvey Street. This distance is approximately 80m. Passing opportunities are available at Brighton Street, Harvey Street and for traffic accessing the site, at the carpark entrance. In the event of vehicle conflict, these locations allow drivers to safely wait for oncoming traffic to clear Little Lesney Street.

If Council desires, it has two options to improve Little Lesney Street operation if post-development conditions justify it:

a) Change Little Lesney Street to operate one-way only, which would eliminate conflicts.

b) Take measures to reduce rat-running in Little Lesney Street, between Mary Street and Swan Street.

In my view, measures do not need to be undertaken now, but these options exist if Council deems future conditions warrant changes.

1. We find the provision of parking and the waiver of 45 spaces an acceptable outcome given the relative parking demand identified in the evidence of Mr Furness. It found the provision of parking reflects car ownership patterns typical of inner suburban locations such as Richmond with 34% to 38% of one bedroom apartments and around 20% of households in two and three bedroom apartments not owning a car.
2. We note the availability of on-street parking is highly regulated including limits with resident permit parking such that residents without a car space will not practically be able to park in the area. This will also contribute to influencing the demand for parking associated with the proposal.
3. The addition of two car share spaces will also generate benefit for the occupants of the development and the local community.
4. The traffic implications of the proposal are acceptable. The local street network can readily absorb the anticipated traffic generated by the proposal and there are no dispersal or congestion issues at local intersections.
5. We accept the opinion of Mr Furness regarding access along Little Lesney Street and consider that if traffic conflicts do occur, they will be at slow speeds where access can be managed safely, and which can be managed through future Council traffic management arrangements if deemed necessary.
6. The provision of bicycle parking exceeds the statutory requirement of 36 under Clause 52.34 and are conveniently located for future occupants. We consider this supports the encouragement of alternative forms of sustainable transport and offer additional benefit with the proximity of public transport options.

1. We have had the benefit of a 'without prejudice' discussion of permit conditions circulated by Council and tracked changes version circulated by the applicant.
2. There is some discussion between parties as to what conditions should be imposed. We have considered those comments and included conditions as we consider appropriate for the proposal and the issues regarding the proposed development.

1. The Tribunal's interim orders dated 20 June 2025 and 30 June 2025 allowed for post-hearing submissions to be made by parties on, amongst other matters, changes to the permit expiry condition. Towards the end of the hearing, the applicant suggested changes to the expiry periods of the permit. Council raised concern regarding the applicant's approach and the interim orders provided for written submissions to be made regarding this issue.
2. We note the permit was extended on 30 August 2024 to expire if works did not commence by 29 September 2025 and be completed by 29 September 2027.
3. The permit includes an expiry for commencement within two years and for completion within four years.
4. The request to amend the permit did not include any reference to amending these expiry periods. Prior to the hearing, Council circulated in accordance with the Tribunal's orders a set of draft without prejudice conditions. On 30 May 2025, the applicant circulated its tracked change response to Council's circulated draft without prejudice conditions and included suggested changes including to the expiry condition for commencement within three years and for completion within five years.
5. Council submitted that the applicant was seeking to extend the permit expiry without having applied for an extension of time under section 69 of the PE Act in circumstances where its request to amend the permit had not sought to amend the permit expiry condition.
6. Council says the applicant's approach raises the following issues:
   • No notice of an amendment to the expiry condition has been given.
   • Council does not have before it an application under section 69 of the PE Act to extend the permit expiry, nor any reasons or justification for such an extension. This includes the absence of any response to the generally accepted 'Kantor principles'[23] for guidance of the exercise of discretion when assessing a request to extend a permit under section 69 of the PE Act.
7. Regarding the above, Council says it has not been able to make an informed decision in relation to the suggested change to time periods in the expiry condition including to the Kantor principles. Council says there has not been any application submitted to it to determine and hence, no application made to the Tribunal under section 81 of the PE Act for a review of any Council decision with respect to any permit extension of time.
8. Council relies on the commentary offered by the Tribunal in Wattleview Pty Ltd v Yarra CC (Corrected) [2025] VCAT 24 ('Wattleview") where in similar circumstances, in that case, the applicant also sought to amend the permit expiry condition, in a manner that would effectively grant an extension of time.
9. The Tribunal ultimately found it was not appropriate to amend the permit expiry condition, observing that the correct process to extend the expiry date of a permit is found under section 69 of the PE Act, and there needs to be an application made to the Council before the Tribunal can consider an application to review the Council's decision. In Wattleview, the Tribunal said (at para 116-118):

Prior to the final day of the hearing the applicant circulated an altered set of permit conditions, based on a set of conditions circulated by the Council prior to the hearing. The conditions circulated by the applicant sought to amend the permit expiry condition, in a manner that would effectively grant an extension of time. Other parties oppose the amendment of the permit expiry condition on the basis that there is a separate process to extend the expiry date of a permit, and it is not appropriate to effect such a change as part of a s87A application.

We are persuaded by these submissions, and find it appropriate to not amend the permit expiry condition. The correct process to extend the expiry date of a permit is found under s69 of the PE Act, and there needs to be an application made to the Council before the Tribunal can consider an application to review the Council's decision. Further, applications for extensions of time are subject to a refined assessment, applying principles from past decisions. As none of the parties made the relevant submissions in this proceeding, we are unable to make an informed decision on the applicant's request.

For these reasons we will not be amending Condition 39 on the permit.

1. Council says that having regard to the above, it does not consider it is appropriate for the permit expiry condition to be amended in this proceeding and that the proper process would be for the applicant to make an application to Council under section 69 of the PE Act to extend the permit expiry, at which time Council can consider the Kantor principles and make an informed decision in respect of the request.
2. The applicant disagrees with Council's position. The applicant says that if the Tribunal forms the view that the amended proposal is acceptable and warrants approval, then it follows that an extension of the permit should be granted to give effect to that permission.
3. In addition, the applicant says that with respect to Council's assertion that notice of the proposed extension of the permit was not given, there is no statutory requirement to give notice of a request to extend a permit pursuant to section 69 of the PE Act.
4. The applicant says that refusing to extend the life of the permit as part of approving the amendment to the permit would impose an unnecessary administrative burden arising from having to separately apply for an extension of the permit expiry under a separate application pursuant to section 69 of the PE Act. It would also further delay the project, particularly if an application was required to be lodged before the Tribunal to review Council's decision on any application to extend the permit. The associated delays would be detrimental to the timely realisation of the proposal and be unfair to the applicant due to time already lost because of time spent in engaging with the adjoining service station landowner to the north.
5. The applicant submits that, on balance, the preferred course is for the Tribunal to extend the permit as sought, if we determine the amendment of permit application worthy of approval. Section 87A of the PE Act does not constrain the type of amendments that might be made to a permit so as to preclude the extension of the permit and is not out of scope of section 87A.
6. The applicant referred to various case law[24] concerning amending an application to include an application made pursuant to section 81(1) of the PE Act pursuant to clause 62 of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) ('VCAT Act') and proceed to extend the permit.
7. We do not form the view that this action is necessary. Unlike circumstances with the case law cited by the applicant, we note the planning controls affecting the site have not changed.
8. The applicant's post hearing submission addressed the Kantor principles and there is nothing in that response that raises, in our view, issues of an adverse nature to any extension of time of the permit. Unlike in Wattleview, the parties have been provided with opportunity to make further written submissions addressing us on these matters. We note Council did not make any further submissions in response to those of the applicant.
9. We note the Tribunal in Vile referred to determining each case on its own merits and that pursuant to sections 97 and 98(d) of the VCAT Act to act fairly and with little formality and technicality for a proper consideration of matters before it.
10. In this regard, we have determined that the request to amend the permit is acceptable subject to changes, which may require additional time to enable design changes. Thus, we are of a mind to amend the permit expiry condition to facilitate the amended proposal, as a matter of efficient disposal of justice.

1. For the reasons given above, Tribunal matter P812/2024 is allowed in part. Planning Permit No. PLN21/0788 is amended subject to conditions included in Appendix A.

To use land for accommodation where the ground floor frontage exceeds 2 metres.

To construct a building or construct or carry out works.

To construct a building or construct or carry out works.

1. Before the development commences, excluding bulk excavation, piling and site preparation 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. The plans must be generally in accordance with the architectural plans prepared by Cera Stribley Pty Ltd, drawing numbers TP.0000, TP.0100, TP.1000, TP.1090 to TP.1092, TP.1100 to TP.1105, TP.1109 to TP.1110, TP.1112, TP.1115, TP.2000 to TP.2001, TP.2100 to TP.2104, TP.3000 to TP.3005, TP.5001 to TP.5026, TP.8000, TP.8007 and Development Summary, Rev C, dated 02 April 2025 but modified to show:

(a) Deletion of one apartment floor level;

(b) Extend the planter boxes along Brighton Street frontage, excluding building entry and service access frontage;

(c) No projections beyond title boundaries excluding projection of the awning/architectural features over Brighton Street;

(d) Install a convex mirror at the vehicle entrance;

(e) Parking spaces that are impacted by encroaching columns or storage cages (i.e. not compliant with Diagram 1 Clearance to car parking spaces of Clause 52.06-9) are to be designated as Small Car Spaces or alternatively redesigned to comply;

(f) A cross sectional drawing of the vehicle crossing and development entrance, and testing of the ground clearance using the B99 design vehicle;

(g) Provision of EV charging points clearly identified;

(h) The road profile and proposed vehicle crossing in Little Lesney Street clearly depicted on Building Section E-E of the drawings;

(i) Full detail of the proposed layout of the ground floor bicycle compound (including dimensions for bicycle spaces, door widths, aisle widths and wall setbacks) in accordance with Australian Standard AS2890.3;

(j) A notation on the plans to ensure that the shower requirements for type A and B bathrooms are met;

(k) Details of the light court to the north of the communal corridor, confirming the 1.1m high balustrade and open design arrangement;

(l) Provision of improved access to daylight from a light court or other means for the side access corridors above ground floor level and consequential changes to apartment layouts where necessary;

(m) Amended design of apartments to provide for:

1. Living room sizing in accordance with Table D12 of Clause 58.07-1 for apartments labelled 209 (typology A7), 309 (typology A12), 405, 406, 505, 506, 605, 606, 705, 706, 805 and 806 (typology A13) on the CS-A Plans to meet the minimum living room widths to improve functionality without compromising the light court dimensions where applicable;
2. For the apartment labelled G01 on the CS-A Plans, the annotation of the room in the northwest corner of the apartment changed from 'bedroom' to 'study' and rationalisation and enlargement of the private open space terrace to be accessed from the living room area to a minimum 25 square metres with consequential changes to the layout of the apartment to reflect these changes; and
3. For the apartment 107 typology A8) on the CS-A Plans, the private open space re-orientated and increased in area to 8 square metres with a minimum dimension of 1.8 metres to improve its functionality without compromising the light court dimensions and setbacks to the west or the size of the terrace to the east.

(n) The assumed surface reflectances in respect to Floors; Internal Walls; Ceilings; External Balcony Walls; External Lightwell Walls; Balcony Floor; Soffit and External Walls, as set out in Jan Talacko's Statement of Evidence dated 12 May 2025 at page 23 of Appendix D annotated on the plans in respect to the apartments;

(o) The assumed glazing visual light transmittance % values in respect to External Glazing; Balustrade / Privacy Screen; and Privacy Glazing, as set out in Jan Talacko's Statement of Evidence dated 12 May 2025 at page 23 of Appendix D, annotated on the plans in respect to the following apartments:

1. The north facing bedroom windows, living room windows and balcony balustrades at Levels 2 - 4 of Apartments 207 & 208 (upper and lower levels) and 405 & 406.
2. The bedroom windows that face east and west onto the north facing light court at Levels 1-4 inclusive, being the rear bedroom of Apartments 106 & 107, 206 & 209, 306 & 307, 404 & 407.

(p) For the apartments labelled 404 and 407 on the CS-A Plans, the overlooking screen at the north of the terrace increased in height from 1.7 metres above the finished terrace level to 2 metres above the finished terrace level as shown in SK01 dated 13 May 2025.

(q) For the apartments labelled 404 and 407 on the CS-A Plans, all north facing bedroom windows are to be screened to a height of 1.7 metres above the finished floor level. The screening is to be fixed to the outside of the respective bedroom windows, with horizontal louvres as shown in SK01 and SK02 dated 13 May 2025.

(r) Any requirement of the endorsed Façade Strategy and materials and Finishes Plan (Condition 3);

(s) Any requirement of the endorsed Sustainable Management Plan (Condition 5) (where relevant to show on plans);

(t) Any requirement of the endorsed Waste Management Plan, where relevant (Condition 11);

(u) Any requirement of the endorsed Landscape Plan, where relevant (Condition 14);

(v) Any requirement of the endorsed Wind Report (where relevant to show on plans) (Condition 18);

(w) Any requirement of the endorsed Streetscape and Public Realm Plans (Condition 20) (where relevant to show on plans);

(x) Any requirement of the endorsed Acoustic Report, where relevant (Condition 23);

(y) Any requirement of the endorsed Public Lighting Plan, where relevant (Condition 26); and

(z) Any requirement of the endorsed Civil Work and Stormwater Analysis, Catchment and Drainage Plan (Condition 32) (where relevant to show on plans).

1. The use and development as shown on the endorsed plans must not be altered (unless the Yarra Planning Scheme specifies that a permit is not required) without the prior written consent of the responsible authority.

1. In conjunction with the submission of development plans under Condition 1, a Façade Strategy and Materials and Finishes Plan to the satisfaction of the responsible authority must be submitted to and be approved by the responsible authority. When approved, the Façade Strategy and Materials and Finishes Plan will be endorsed and will then form part of this permit. This must detail:

(a) elevation drawings at a scale of 1:20 illustrating typical podium details, entries and doors, and utilities and typical tower facade details;

(b) section drawings to demonstrate façade systems, including fixing details and joints between materials or changes in form;

(c) details of services along Brighton Street;

(d) information about how the façade will be maintained, including any vegetation; and

(e) a materials schedule with digital samples of proposed materials and coloured drawings outlining colours, materials and finishes, including grey tinted glazing with reflective qualities consistent with Condition 5.

1. As part of the ongoing consultant team, Cera Stribley Pty Ltd or an architectural firm to the satisfaction of the responsible authority must be engaged to:

(a) oversee the design and construction of the development; and

(b) ensure the design quality and appearance of the development is realised as shown in the endorsed plans or otherwise to the satisfaction of the responsible authority.

1. Before the plans are endorsed, an amended Sustainable Management Plan to the satisfaction of the responsible authority must be submitted to and approved by the responsible authority, the Sustainable Management Plan will be endorsed and will form part of this permit. The Sustainable Management Plan must be generally in accordance with the Statement of Evidence prepared by Jan Talacko dated 12 May 2025 and must confirm that the development:

(a) Incorporates the Assumed Surface Reflectance outcomes as described in the Jan Talacko Statement of Evidence dated 12 May 2025 at page 23 of Appendix D in respect to Floors, Internal Walls, Ceilings, External Balcony Walls, External Lightwell Walls, Balcony Floor, Soffit and External Walls.

(b) Achieves the following performance standards:

1. Minimum 5-star Green Star Buildings rating.
2. Compliance with the BESS daylight standard for living areas and bedrooms.
3. Average NatHERS energy rating of 7.5 stars.
4. Compliance with the energy efficiency standard in clause 58.03-1.
5. Compliance with the Urban Stormwater Best Practice Environmental Management Guidelines.

1. The provisions, recommendations and requirements of the endorsed Sustainable Management Plan must be implemented and complied with to the satisfaction of the responsible authority.
2. The development must be registered with the Green Building Council Australia with the objective of achieving a 5-star rating.
3. Where alternative ESD initiatives are proposed to those specified in the Statement of Evidence prepared by Jan Talacko dated 12 May 2025 and the conditions of this permit, the responsible authority may vary the requirements of this condition at its discretion, subject to the development achieving equivalent (or greater) ESD outcomes than those identified above.
4. Before the buildings and works approved by this permit are occupied, a copy of the Green Star Design Review submission must be submitted to the GBCA confirming the project is on track to achieve a 5-star Green Star rating.
5. Following completion of the development, evidence of the GBCA 5-star Green Star Certification must be submitted to the responsible authority within two (2) years of the Certificate of Occupancy being issued.

1. Before the development commences, excluding bulk excavation, piling and site preparation works, a Waste Management Plan to the satisfaction of the responsible authority must be submitted to and approved by the responsible authority. The Waste Management Plan must be generally in accordance with the report prepared by Leigh Design and dated 17 July 2024 , but updated to include the following:

(a) Any relevant changes required by Condition 1.

When approved, the Waste Management Plan will be endorsed and form part of this permit.

1. The provisions, recommendations and requirements of the endorsed Waste Management Plan must be implemented and complied with to the satisfaction of the responsible authority.
2. The collection of waste from the site must be by private collection, unless with the prior written consent of the responsible authority.

1. Before the development commences, excluding bulk excavation, piling and site preparation works, an amended Landscape Plan to the satisfaction of the responsible authority must be submitted to and approved by the responsible authority. When approved, the amended Landscape Plan will be endorsed and will form part of this permit. The amended Landscape Plan must be generally in accordance with the Landscape Plan prepared by Jack Merlo Design and Landscape and dated 18 April 2025, but modified to include (or show):

(a) updated in accordance with the plans referenced at Condition 1;

(b) provide a plant schedule with the following information - the proposed plant species (botanical and common name), installation size, width and height at maturity, and plant numbers. These have been provided and given adequate information.

(c) the depth of the planters ;

(d) clarify irrigation strategy;

(e) further detail on the maintenance schedule include how the proposed plantings in individual planters will be successfully maintained;

1. Before the building is occupied, or by such later date as approved in writing by the responsible authority, the landscaping works shown on the endorsed Landscape Plan must be carried out and completed to the satisfaction of the responsible authority. The landscaping shown on the endorsed Landscape Plan must be maintained by:

(a) implementing and complying with the provisions, recommendations and requirements of the endorsed Landscape Plan;

(b) not using the areas set aside on the endorsed Landscape Plan for landscaping for any other purpose; and

(c) replacing any dead, diseased, dying or damaged plants,

all to the satisfaction of the responsible authority.

1. Before the development commences, the permit holder must make a financial contribution towards the proposed street tree and understorey planting within public land of $3,207 (ex GST), being $755 for each of the three street trees, and $942 for the understorey planting.
2. After the building is completed, and prior to occupation of the building, the permit holder must notify the responsible authority in writing that the building has been completed so that planting can occur within the first available planting season. Tree pits may require a temporary 'make safe' until such time that planting can occur.

1. Before the development commences, excluding bulk excavation, piling and site preparation works, an amended Wind Assessment Report to the satisfaction of the responsible authority must be submitted to and approved by the responsible authority. When approved, the amended Wind Assessment Report will be endorsed and will form part of this permit. The amended Wind Assessment Report must be generally in accordance with the Wind Impact Assessment prepared by Vipac Engineers and Scientists Ltd. and dated 6 May 2025 but modified to include (or show):

(a) updated to assess the amended plans referenced at Condition 1;

(b) wind tunnel modelling to include the development on the opposite side of Brighton Street and if this would result in the walking comfort criterion being maintained along the Brighton Street footpaths, with a list of any additional mitigation devices to be detailed in order to achieve the walking comfort criterion;

1. The provisions, recommendations and requirements of the endorsed Wind Assessment Report must be implemented and complied with to the satisfaction of the responsible authority.

1. Before the development commences, excluding bulk excavation, piling and site preparation works, or by such later date as approved in writing by the responsible authority, a Public Realm Plan to the satisfaction of the responsible authority must be submitted to and approved by the responsible authority. The Public Realm Plan must include the following:

(a) High level details and dimensions of the proposed works in the public realm;

(b) Full details of proposed landscaping within the public realm including plant species, soil depths and tree squares;

(c) All paving within the public realm reinstated as asphalt with kerbs and channels to match the adjacent existing kerb and channel;

(d) All paving compliant with the Australian Standards for slip resistance and DDA;

(e) Details of any re-located street infrastructure;

(f) Details of the materiality of outstands including edges, permeable surface finishes and drainage;

(g) Additional levels and grading along the building's ground floor Brighton Street interface to demonstrate that seamless and DDA compliant entrance threshold and footpath interfaces are achieved;

(h) Details of any adjacent footpath reinstatement if needed to ensure the grade of the footpath and the paving are gradual and DDA compliant;

(i) Notation to confirm that all street tree planting, understorey planting and establishment / maintenance (24 months for trees and six months for understorey planting) within the public realm to be undertaken by Council's tree planting contractor with all associated costs born by the permit holder;

(j) Notation for the three street trees to state 'species as directed by Council' in the plant schedule;

(k) All tree pits must be unencumbered, free from services to a depth of at least 600mm and be filled with soil that is conducive for tree root growth, appropriate for the location and in accordance with Yarra Standard Drawings YSD 709 and YSD711;

(l) Any detail required to be shown from the endorsed Stormwater Analysis, Catchment and Drainage Design Plan (Condition 32),

all to the satisfaction of the responsible authority.

1. Before the development commences (excluding site preparations, demolition and bulk excavation), or by such later date as approved in writing by the responsible authority, detailed design drawings of the works approved under the Public Realm Plan (as required by Condition 20) addressing all road infrastructure works (including soft/hard landscaping), must be submitted to and approved by Council's Civil Engineering Department. Once approved, the detailed design drawings will be endorsed and will then form part of the permit.
2. Before the building is occupied, all associated works shown on the endorsed detailed design plans for the public realm (as required by Condition 20) must be fully constructed and completed to the satisfaction of the Council's Civil Engineering Department and at no cost to the responsible authority

1. Concurrent with the submission of Condition 1 plans, an amended Acoustic Report to the satisfaction of the responsible authority must be submitted to and approved by the responsible authority. When approved, the amended Acoustic Report will be endorsed and will form part of this permit. The amended Acoustic Report must be consistent with conditions 24 and 25 of this permit and generally in accordance with the Acoustic Report prepared by ADP Consulting Engineering and dated 15 July 2024, but modified to show / address:

(a) All design changes required under Condition 1 of this permit;

(b) The provisions, recommendations and requirements of the endorsed Acoustic Report must be implemented and complied with to the satisfaction of the responsible authority.

1. Unless and until the existing use of the land at 274-280 Swan Street, Richmond for the purposes of a service station and car wash permanently ceases:

(a) The acoustic attenuation measures on the north elevation of the CS-A plans (Drawing number TP.2100) must not be altered.

1. There must be no alteration to the acoustic attenuation annotation on TP.2100, which states:

Note: Solid balustrade or fixed screens nominated to the northern façade to be constructed of a material with a minimum surface density of 12KG/m2 or a construction which achieves a minimum sound insulation performance of 25 dB Rw + Ctr and all balustrade or fixed screens must be free from holes and gaps.

Under section 85(1A) of the Planning and Environment Act 1987 (Vic), this condition (condition 25) must not be amended by the responsible authority under Part 4 Division 1A of the Planning and Environment Act 1987 (Vic), but may only be amended by the Victorian Civil and Administrative Tribunal under section 87A of the Planning and Environment Act 1987 (Vic).

1. Before the use and/or development commences, or by such later date as approved in writing by the responsible authority, a Public Lighting Plan must be submitted to and approved by Council's Civil Engineering Department. When approved, the Public Lighting Plan will be endorsed and will form part of this permit. The Public Lighting Plan must be designed:

(a) to address lighting along roads and laneway surrounding the development, and the entrance to the approved building;

(b) to comply with uniformity, access and maintenance requirements as per standard AS1158.3.1;

(c) to control light spillage in accordance with the requirements of AS 4282 - 2019, 'Control of the obtrusive effects of outdoor lighting'; and

1. The provisions, recommendations and requirements of the endorsed Public Lighting Plan must be implemented and complied with at no cost to Council and to the satisfaction of the responsible authority.

1. Before the building is occupied, or by such later date as approved in writing by the responsible authority, any redundant vehicular crossings must be demolished and re-instated as standard (asphalt) footpath and kerb and channel:

(a) at no cost to the responsible authority (inclusive of the cost of modifying any parking signs or road markings for parking bays (where required); and

1. Before the building is occupied, or by such later date as approved in writing by the responsible authority, the footpaths, kerb and channel, and other road related infrastructure adjacent to the development site along Brighton Street and Little Lesney Street must be reconstructed:

(a) in accordance with the requirements and detail shown in the endorsed Public Realm Plan and the endorsed Stormwater Analysis, Civil Work and Drainage Design Plans;

(b) the footpath is to have a cross-fall (the slope between the kerb and the property line) of no steeper than 1 in 33 or unless otherwise specified by the responsible authority;

(c) at no cost to the responsible authority; and

1. Before the building is occupied, or by such later date as approved in writing by the responsible authority, any damage to Council infrastructure resulting from the development must be reinstated:

1. Before the building is occupied, or by such later date as approved in writing by the responsible authority, any new vehicle crossings must be constructed:

(a) in accordance with any requirements or conditions imposed by Council;

(b) at the permit holder's cost; and

1. Before the development commences, excluding bulk excavation, piling and site preparation works, a Civil Work and Stormwater Analysis, Catchment and Drainage Plan prepared to the satisfaction of the responsible authority must be submitted to and approved by the responsible authority. Once the plan is approved, it will be endorsed and will then form part of the permit. The Civil Work and Stormwater Analysis, Catchment and Drainage Design Plan must:

(a) Be consistent with the public realm plan required under Condition 20;

(b) Not include 'rough' bluestone pitchers in the road pavement at the intersection of Little Lesney Street and Brighton Street;

(c) Provide for all civil and drainage works that are required to the abutting road frontages, as part of the development and proposed public realm works;

(d) Include underground drainage from Little Lesney Street to the north end of the proposed kerb extension in Brighton Street;

(e) Include a stormwater and flooding analysis and catchment plan as it relates to the development, proposed public realm works and drainage scheme to ensure no 'ponding' or retention of water in the roadways (i.e. including kerb extension);

(f) Be in accordance with Council's engineering standards and requirements;

(g) Be DDA compliant to the satisfaction of Council;

(h) Show all existing and proposed street fixtures and furniture including but not limited to service authority assets, street lighting, signs and line marking in Brighton Street and Little Lesney Street abutting the development;

(i) Show surface material finishes shown and specified to the satisfaction of the responsible authority;

(j) Provide street lighting in accordance with Council standards; and

(k) Where practical, ensure co-ordination with public realm works in Brighton Street and Little Lesney Street proposed by the redevelopment of 2-8 Brighton St, 1-3 Wiltshire Street and 5 Little Lesney Street (where relevant).

1. Before the development is completed or at a later date as agreed in writing by the responsible authority, all associated works shown on the endorsed Stormwater Analysis, Catchment and Drainage Plan must be fully constructed and completed by the permit holder, all to the satisfaction of the responsible authority.

1. Before the building is occupied, or by such later date as approved in writing by the responsible authority, the area set aside on the endorsed plans for the car parking spaces, access lanes, driveways and associated works must be:

(a) constructed and available for use in accordance with the endorsed plans;

(b) formed to such levels and drained so that they can be used in accordance with the endorsed plans;

(c) treated with an all-weather seal or some other durable surface; and

(d) line-marked or provided with some adequate means of showing the car parking spaces,

all to the satisfaction of the responsible authority.

1. Before the building is occupied, or by such later date as approved in writing by the responsible authority, a notice showing the location of car parking must be placed in a clearly visible position near the entry to the land. The notice must be maintained thereafter to the satisfaction of the responsible authority.

1. Before the development commences, excluding bulk excavation, piling and site preparation works, a Green Travel Plan to the satisfaction of the responsible authority must be submitted to and approved by the responsible authority. When approved, the amended Green Travel Plan will be endorsed and will form part of this permit. The Green Travel Plan must include (or show):

(a) the types of lockers proposed within the change-room facilities

(b) security arrangements to access the employee and visitor bicycle storage spaces;

(c) signage and wayfinding information for bicycle facilities and pedestrians pursuant to Australian Standard AS2890.3; and

(d) provisions for the GTP to be updated not less than every five years;

1. The provisions, recommendations and requirements of the endorsed Green Travel Plan must be implemented and complied with to the satisfaction of the responsible authority.

1. Before the building is occupied, or by such later date as approved in writing by the responsible authority, external lighting capable of illuminating access to the pedestrian and vehicular entrances must be provided on the subject site. Lighting must be:

(a) located;

(b) directed;

(c) shielded; and

(d) of limited intensity,

all to the satisfaction of the responsible authority.

Residential Reticulated Gas Service Connection

1. Any new apartment development allowed by this permit must not be connected to a reticulated gas service (within the meaning of clause 53.03 of the relevant planning scheme). This condition continues to have force and effect after the development authorised by this permit has been completed.

1. Finished floor levels shown on the endorsed plans must not be altered or modified without the prior written consent of the responsible authority.
2. The amenity of the area must not be detrimentally affected by the construction, including through:

(a) the transport of materials, goods or commodities to or from land;

(b) the appearance of any buildings, works or materials;

(c) the emission of noise, artificial light, vibration, smell, fumes, smoke, vapour, steam, soot, ash, dust, waste water, waste products, grit or oil; or

(d) the presence of vermin.

1. The development must at all times comply with the noise limits specified in the Environment Protection Regulations under the Environment Protection Act 2017 (Vic) and the incorporated Noise Protocol (Publication 1826.4, Environment Protection Authority, May 2021), as may be amended from time to time.
2. Before the building is occupied, or by such later date as approved in writing by the responsible authority, all new on-boundary walls must be cleaned and finished to the satisfaction of the responsible authority.
3. All buildings and works must be maintained in good order and appearance to the satisfaction of the responsible authority. All pipes, fixtures, fittings and vents servicing any building on the land must be concealed in service ducts or otherwise hidden from view to the satisfaction of the responsible authority.
4. Any service poles, structures or pits located within the public realm areas that interfere with the proposal, must be adjusted accordingly:

(a) at the permit holder's cost; and

(b) to the satisfaction of the responsible authority.

1. Before the development commences, or by such later date as approved in writing by the responsible authority, the permit holder must obtain the relevant approvals for the discontinuance of a road to expunge the road known as 'Laneway 1121' from Yarra's Register of Public Roads.

1. Prior to the commencement of the development, the Development Infrastructure Levy must be paid to Yarra City Council in accordance with the approved Development Contributions Plan.

1. Prior to the issue of a building permit, the Community Infrastructure Levy must be paid to Yarra City Council in accordance with the approved Development Contributions Plan.

1. Before the development commences, for the relevant stage of the development, a Construction Management Plan to the satisfaction of the responsible authority must be submitted to and approved by the responsible authority. When approved, the Construction Management Plan will be endorsed and will form part of this permit. The Construction Management Plan must provide for (as relevant to the applicable stage of development):

(a) a pre-conditions survey (dilapidation report) of the land and all adjacent Council roads frontages and nearby road infrastructure;

(b) works necessary to protect road and other infrastructure;

(c) remediation of any damage to road and other infrastructure;

(d) containment of dust, dirt and mud within the land and method and frequency of clean up procedures to prevent the accumulation of dust, dirt and mud outside the land;

(e) facilities for vehicle washing, which must be located on the land;

(f) the location of loading zones, site sheds, materials, cranes and crane/hoisting zones, gantries and any other construction related items or equipment to be located in any street;

(g) that the crossover to Brighton Street associated with the land at 274-280 Swan Street is not obstructed during construction unless otherwise agreed to by the owner of the land;

(h) site security;

(i) management of any environmental hazards including, but not limited to,:

1. contaminated soil;
2. materials and waste;
3. dust;
4. stormwater contamination from run-off and wash-waters;
5. sediment from the land on roads;
6. washing of concrete trucks and other vehicles and machinery; and
7. spillage from refuelling cranes and other vehicles and machinery;

(j) the construction program;

(k) preferred arrangements for trucks delivering to the land, including delivery and unloading points and expected duration and frequency;

(l) parking facilities for construction workers;

(m) measures to ensure that all work on the land will be carried out in accordance with the Construction Management Plan;

(n) an outline of requests to occupy public footpaths or roads, or anticipated disruptions to local services;

(o) an emergency contact that is available for 24 hours per day for residents and the responsible authority in the event of relevant queries or problems experienced;

(p) the provision of a traffic management plan to comply with provisions of AS 1742.3- 2002 Manual of uniform traffic control devices - Part 3: Traffic control devices for works on roads;

(q) a Noise and Vibration Management Plan showing methods to minimise noise and vibration impacts on nearby properties and to demonstrate compliance with Noise Control Guideline 12 for Construction (Publication 1254) as issued by the Environment Protection Authority in October 2008. The Noise and Vibration Management Plan must be prepared to the satisfaction of the responsible authority. In preparing the Noise and Vibration Management Plan, consideration must be given to:

1. using lower noise work practice and equipment;
2. the suitability of the land for the use of an electric crane;
3. silencing all mechanical plant by the best practical means using current technology;
4. fitting pneumatic tools with an effective silencer;
5. other relevant considerations; and
6. any site-specific requirements.

(r) any stormwater discharged into the stormwater drainage system must be in compliance with Environment Protection Authority guidelines;

(s) stormwater drainage system protection measures must be installed as required to ensure that no solid waste, sediment, sand, soil, clay or stones from the land enters the stormwater drainage system;

(t) vehicle borne material must not accumulate on the roads abutting the land;

(u) the cleaning of machinery and equipment must take place on the land and not on adjacent footpaths or roads; and

(v) all litter (including items such as cement bags, food packaging and plastic strapping) must be disposed of responsibly.

1. The provisions, recommendations and requirements of the endorsed Construction Management Plan must be implemented and complied with to the satisfaction of the responsible authority.

1. Except with the prior written consent of the responsible authority, demolition or construction works must not be carried out:

(a) Monday-Friday (excluding public holidays) before 7 am or after 6 pm;

(b) Saturdays and public holidays (other than ANZAC Day, Christmas Day and Good Friday) before 9am or after 3pm; or

(c) Sundays, ANZAC Day, Christmas Day and Good Friday at any time.

1. Before the development starts (excluding demolition and bulk excavation) or such other time agreed to in writing by the Head, Transport for Victoria, amended plans to the satisfaction of the Head, Transport for Victoria must be submitted to and approved by the responsible authority. When approved, the plans will be endorsed and will then form part of the permit. The plans must be drawn to scale with dimensions and three copies must be provided. The plans must be generally in accordance with the plans submitted with the application but modified to show:

(a) that the design prevents items from being thrown or falling onto railway land from any part of the development,

to the satisfaction of the Head Transport for Victoria.

1. Before development starts (excluding demolition and bulk excavation) building materials (including glass/window/ balcony treatments) or advertising signs likely to have an effect on train driver operations along the rail corridor must be shown by a reflectivity and or light study (the study) not to cause reflections or glare that may interfere with train driver operations. The study must clarify that:

(a) the development does not cause reflected sunlight to interfere with train driver visibility or interpretation of rail signals.

(b) the development does not reflect or refract artificial light such that it interferes with train driver visibility or interpretation of rail signals.

(c) the development exterior avoids use of red, green, or yellow colour schemes that may interfere with driver operations or schemes or shapes capable of being mistaken for train signals.

1. Before the development starts, or such other time agreed to in writing by the Head, Transport for Victoria detailed construction / engineering plans and structural computations for any construction work abutting railway infrastructure or railway land, must be submitted, and approved by Vic Track, the Head, Transport for Victoria, and the Rail Operator (RO). The plans must detail all basement excavations and retention system design and controls of the site adjacent to the railway corridor having any impact on railway land. The design plans must also ensure compliance with:

(a) the relevant Rail Transport Operator's engineering standard for minimum clearances to all existing and planned future electrical assets, and procedures for works adjacent;

(b) Energy Safe Victoria (ESV) requirements for clearances to electrical assets and Australian Standards AS2067, AS7000 and Electricity Safety (General Regulations 2019, Part 6) for clearances to electrical assets. Clearances required include for safe working, fire life safety design, electromagnetic interference and earthing, bonding, and electrolysis mitigation design.

(c) earthquake design loadings for structure designated as a minimum Importance Level 2, by AS1170.4 - 'Structural Design Actions, Earthquake Actions in Australia';

(d) a design that does not require people to access railway land, or breach electrical safety requirements, for the purposes of routine cleaning, replacement, inspection, maintenance, and repair of any part of the building or development. The development must be designed so that maintenance can occur from within the development site without access to the rail corridor;

(e) any temporary or permanent ground anchors, soil nails, reinforced earth straps or other ground stabilising devices, do not penetrate onto railway land; and

(f) demonstrate that entry onto railway land or air space over railway land is not required for fire, light, ventilation, and maintenance for all buildings and works on site.

1. Before development starts (including demolition and bulk excavation), all necessary construction control agreements and indemnity agreements must be prepared and entered with VicTrack, the Head, Transport for Victoria, and the Rail Operator to the satisfaction of and at no cost to the Head, Transport for Victoria.
2. Before development starts (including demolition and bulk excavation), a Traffic Management Plan must be submitted to and approved by the Head, Transport for Victoria. The Traffic Management Plan must provide for:

(a) how public transport operations, traffic, walking and cycling movements will be managed during the demolition and construction; and

(b) how any traffic impact to the railway land and associated infrastructure will be mitigated.

The Traffic Management Plan must be implemented and complied with to the satisfaction of the Head, Transport for Victoria at the full cost to the permit holder.

The Traffic Management Plan must be consistent with any Traffic Management Plan required by the Responsible Authority.

The endorsed Traffic Management Plan must not be modified without the prior written consent of the Head, Transport for Victoria.

1. Before development starts (including demolition and bulk excavation) a Demolition Plan and/or Construction Management Plan as applicable must be submitted to and approved by the Head, Transport for Victoria. The Plan must include details of (but not limited to) management proposals to minimise impacts to the rail land, assets, and the operation of the railway during construction and must set out objectives and performance and monitoring requirements for:

(a) Access to the rail environment, including designation of any areas to be used under license during the construction process.

(b) Approvals and permits required from TfV, VicTrack and the accredited Rail Operator prior to works commencing and prior to accessing the railway land.

(c) Rail safety requirements that must be adhered to by the permit holder.

(d) Protection of all rail infrastructure to ensure rail infrastructure is not damaged during demolition or construction.

(e) Minimising disruption to train services and railway maintenance and commuter access.

(f) Management of drainage, effluent, material stockpiles, fencing, hoardings to ensure railway land is not used for, or impacted on by these activities outside of the licence area.

(g) Public safety, amenity, and site security.

(h) Operating hours, noise, and vibration controls.

(i) Air and dust management.

(j) The remediation of any damage to railway land, track, overhead and underground power and communication assets associated infrastructure.

(k) Details of required access to the railway land during demolition and construction of the development with appropriate durations and schedules.

1. All demolition and construction works must be carried out in accordance with the approved Demolition and Construction Management Plan unless with the prior written consent of the Head, Transport for Victoria. The Demolition and Construction Management Plan must be prepared, implemented, and monitored at no cost to the Head, Transport for Victoria VicTrack, and/or the Rail Operator.
2. The Demolition and Construction Plan must be consistent with any Construction Management Plan required by the responsible authority.
3. No drainage, effluent, waste, soil, or other materials must enter or be directed to railway land or stored or deposited on railway land.

(a) the development is not commenced within three years of the date of the grant of the amended permit; or

(b) the development is not completed within five years of the date of the grant of the amended permit; or

(c) the use is not commenced within six years of the date of the grant of the amended permit.

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

[1] Mr Connor appeared on Day 1 and Mr Beaconsfield appeared on Days 1 and 6.

[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] LPC Nominee 30 Pty Ltd v Yarra CC (unreported), proceeding P761/2022.

[4] Pursuant to section 87A(2)(b) of the Planning and Environment Act 1987 (Vic).

[5] Mr Armstrong attended all days of the hearing while Mr Connor and Mr Beaconsfield, on behalf of Andrianopoulos Nominees Pty Ltd, attended Days 1 and 6 of the hearing.

[7] Refer to Clause 11.01-1S - 'Settlement'.

[8] Refer to Clause 11.01-1R - 'Settlement - Metropolitan Melbourne' and Clause 16.01-1R - 'Housing supply - Metropolitan Melbourne'.

[9] Refer to Clause 12.06-1S - 'Urban forests'.

[10] Refer to Clause 13.01-3S - 'Urban heat'.

[11] Refer to Clause 16.01-1S - 'Housing supply'.

[12] Adopting the opinions on questions of law expressed by DP Gibson in W Property Group Pty Ltd v Boroondara CC [2017] VCAT 740 [7] - [22].

[13] Clauses 15.01-1S, 15.01-1R and 15.01-1L.

[14] Some of these cases include Mondib Group Pty Ltd v Moonee Valley CC [2021] VSC 722, Bestaway Group Pty Ltd v Monash CC [2008] VCAT 860, EAH Batman Pty Ltd v Melbourne CC (includes Summary) (Red Dot) [2011] VCAT 1477, Creative Property Developments Pty Ltd v Stonnington CC [2023] VCAT 691 and Wattleview Pty Ltd v Yarra CC (Corrected) [2025] VCAT 24.

[16] The DDO27 refers to achieving a minimum BESS score of 70%.

[17] Particularly east of Coppin Street.

[18] A policy document under Clause 15.01-2S.

[19] Council Alliance for a Sustainable Built Environment

[20] Built Environment Sustainability Scorecard.

[21] Nijon Nominees Pty Ltd v Yarra CC [2024] VCAT 755

Nicholson Place Pty Ltd v Yarra CC [2022] VCAT 1053

JN High Street Development Pty Ltd v Stonnington CC [2025] VCAT 8

GFM Investment Management Limited ATF GFM Home Trust II Subtrust No 9 v Port Phillip CC [2024] VCAT 458

Gurner 26-56 Queens Parade Pty Ltd v Yarra CC (Corrected) [2021] VCAT 376

Hengyi (88 Kerr) JV Pty Ltd v Yarra CC [2021] VCAT 1093

Hengi (88 Kerr) JV Pty Ltd v Yarra CC [2022] VCAT 566.

[22] Noting no plans have been endorsed under the existing permit.

[23] Refer to the Supreme Court decision in Kantor v Murrindindi SC [1997] VicSC 167; [1997] 18 AATR 285.

[24] Refer to Snooks v Mornington Peninsula SC [2010] VCAT 1692 and Vile v Stonnington CC [2011] VCAT 234 ('Vile').