The Hearing proceeded on the basis that the Tribunal is not bound to conform with or give effect to any private agreements reached between any or all of the parties. While those agreements may be relevant to the Tribunal's consideration of the application, they are not binding on the Tribunal. In the absence of Tribunal Orders amending the statements of grounds, amending the grounds of refusal or confining the issues in dispute, the Tribunal is required to take account of and have regard to all the matters specified in S.84B of the Planning and Environment Act 1987 in determining the Application for Review. The parties were advised that the Tribunal would exercise its power under S.98 of the Victorian Civil and Administrative Tribunal Act 1998 to inform itself as it sees fit in determining the application. Parties were provided with the opportunity to respond to issues raised by Tribunal (Paragraphs 13-27).

The Application was eventually refused because of the failure of the proposal's design to adequately respond to the site's direct abuttal with a long-standing industrial use. The nature of the review site's interface with the industrial use was observed by the Tribunal on an unaccompanied view and subsequently brought to the attention of the parties (Paragraphs 34-36).

The Tribunal provided the Applicant for Review with the opportunity to respond to the interface condition. The Tribunal decided not to list the matter for a further hearing (Paragraph 56).

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

John Wardlaw and Jane Duffy, G & M Caminiti Pty Ltd.

Gurner 57 Johnston Street Developments Pty Ltd v Yarra CC (Red Dot) [2017] VCAT 333

1. In application P956/2016 the decision of the responsible authority is affirmed.
2. In planning permit application PLN15/1205 no permit is granted.

• Ms A Brady, heritage consultant
• Mr B Raworth, heritage architect
• Mr M Sheppard, urban designer
• Mr S McGurn, town planner
• Mr J Walsh, traffic engineer

Mr J Wardlaw appeared on his own behalf and on behalf of Jane Duffy

Demolition of existing building, retention of the front façade of the building, and the construction of a seven storey building comprising residential uses at the upper levels and the retention of the Spanish Club at the ground floor. Car parking is proposed over two basement levels.

Application under section 79 of the Planning and Environment Act 1987 - to review the failure to grant a permit within the prescribed time.[1]

Clause 34.01-4: A permit is required to construct a building or construct or carry out works.

Clause 32.04-6: A permit is required to construct two or more dwellings on a lot.

Clause 43.01-1: A permit is required to demolish or remove a building, construct a building or construct or carry out works.

Clause 52.05: A permit is required for an above verandah sign.

Clause 52.06-3: A permit is required to reduce (including reduce to zero) the number of car parking spaces required under Clause 52.06-5

Clause 52.07: A permit is required to reduce or waive requirements for the provision of loading and unloading facilities.

The site is located on the north side of Johnston Street between Nicholson and Brunswick Streets, Fitzroy. The site has a frontage to Johnston street of 17 metres and an area of 810 m2. A bluestone lane (Harrison Place) runs in an east west direction from Spring Street to the west intersecting with the western side boundary of the review site. This lane provides vehicle access to the review site and to other sites abutting the land to the north and south.

A double storey heritage building occupies the site. The building is occupied by the Spanish Club (a restricted place of assembly).

The site is located in an area best described as very mixed in character and use. Industrial, commercial and residential buildings and uses intermingle. The review site's immediate neighbours include:

• To the north there is a single storey building used as a motor body repair facility. This building has a frontage to Argyle Street.
• To the north east there is a row of double storey Victorian terrace houses which also front Argyle Street.
• To the east is a double storey commercial building.
• To the west is a three storey office building.
• Opposite the review site on the south side of Johnston Street there are two storey commercial buildings.

1. This is an application to review the failure of the Responsible Authority to grant a permit within the prescribed time in respect of a permit application for the partial demolition of the building and the construction of a seven storey building at 57 - 61 Johnston Street, Fitzroy. The Responsible Authority ultimately decided that had it not been for the application for review it would have refused permission for the following reasons:

1. The development fails to provide a high-quality, architectural response and does not respond to relevant State and Local Planning Policy Framework objectives at clauses 15.01 and 21.05-2 of the Yarra planning scheme in relation to urban design principles specifically relating to height, setbacks and design detailing. 2. The height and inadequate upper-level setbacks from Johnson Street will unreasonably dominate the streetscape, inconsistent with clauses 15.03, 21.05-1, 22.02 and 43.01 of the Yarra Planning Scheme.

1. The communal and internal corridor spaces do not satisfactorily achieve objective 4.3 and 5.3 of the Guidelines for Higher Density Residential Development, resulting in a poor standard of circulation and movement within the development.

1. An inadequate level of internal amenity, daylight and ventilation is afforded to apartments with battle axe bedroom layouts, contrary to clauses 15.02, 21.07 and 22.17 of the Yarra Planning Scheme and objective 5.4 of the Guidelines for Higher Density Residential Development.
2. There were a number of objections to the planning permit application and the Tribunal received Statements of Grounds from some of those objectors. Mr Wardlaw and Ms Duffy who reside in the dwelling located to the north east of the review site, and G & M Caminiti who operate a motor body repair facility located immediately to the rear (north) of the review site, are parties in this proceeding[3]. Mr Wardlaw's and Ms Duffy's statement of grounds raise a number of issues related to the proposal's height, scale and form, and the impacts of the proposal on the amenity of their dwelling. Mr Caminiti's objections also raise a number of issues about the height, scale and form of the proposal, and access arrangements. They also raise concerns about the impact of the proposal on the continued operation of their motor body repair business. Concerns are also expressed about the proposal's impact on the future development potential of their property.
3. At the commencement of the hearing, the Council advised it was no longer pursuing grounds of refusal 3 and 4. The Council also advised that it would not be calling evidence from Mr McGuaran whose witness statement had previously been circulated, and it would not be relying on that evidence. Following the circulation of that witness statement the Tribunal received correspondence from the Applicant advising that it would object to the receipt of that evidence on the basis that it contradicted an agreement reached between the Applicant and the Council at a compulsory conference. The circumstances surrounding the Council's withdrawal of Mr McGuaran's evidence is discussed in more detail below.
4. Also at the commencement of the hearing, Mr Wardlaw advised the Tribunal that he had reached an agreement with the Applicant and that subject to the imposition of permit conditions, he no longer opposed the grant of a permit and he applied to withdraw his objection. I did not grant Mr Wardlaw's application to withdraw. I advised the parties that I was not bound by any agreement that may have been reached between Mr Wardlaw and the Applicant and I was not bound by that agreement to impose any conditions on a permit. The imposition of appropriate permit conditions would be a matter for me in the context of my consideration of the proposal.
5. There is no dispute in this case that there is policy support for the appropriate redevelopment of the review site, and the provision of increased residential densities in this location is encouraged by the planning scheme. There is also acknowledgement that the retention of the front façade of the existing building and the demolition of the balance of the building is an acceptable heritage outcome. The Council does have concerns however with respect to the combination of the building height and mid-level setbacks that in its submission, contribute to visual dominance in the Johnston Street streetscape and an unacceptable relationship between the proposed building and the retained façade.
6. This application has been refused because of the proposal's failure to achieve an acceptable design response to a significant constraint to the review site's development. That constraint relates specifically to the direct interface between the review site and its northern neighbour, a motor body repair business. The physical condition of that interface will be described in more detail subsequently in this decision, but it includes the location of emission exhaust stacks associated with the spray painting booth in the building to the rear, adjacent to the northern boundary of the review site. All parties acknowledge the fact that the nature of the interface between the two sites constitutes a site condition to which any design for the development of the review site must respond in an acceptable manner. There is also acknowledgement by the Applicant that the design response to the interface condition represented in the application and substituted plans, is not acceptable.
7. The failure of the proposal to achieve an acceptable response to the northern interface is in large part a result of an inadequate site analysis, which failed to identify in any meaningful way the implications of the northern interface conditions for the design of the proposal. The Council's assessment of the proposal was similarly lacking and proceeded on the basis that there is no significant constraint to the review site's development posed by the nature of that interface.
8. The nature of the interface condition and the implications it has for the development of the review site was brought to the attention of the parties during the hearing by the objector (Mr Carminiti) and subsequently by myself following my unaccompanied inspection of the review site and neighbouring properties. The unaccompanied view was conducted on the second morning of the hearing. My observations were presented to the parties at the resumption of the hearing.
9. The Applicant requested the opportunity to address the issues associated with the interface condition. Because of the strong policy support for the redevelopment of the site and the generally confined basis of the Council's and the objector's concerns about the proposal, I provided the Applicant with the opportunity to address the issues associated with the northern interface.
10. Amended plans and associated documentation were prepared and circulated in accordance with Orders provided by me to allow that to occur. For the reasons I elaborate on below, notwithstanding the attempt to address the northern interface condition by the preparation of amended plans, an acceptable outcome has not been achieved. The failure to address the northern interface issue is not compensated for by the generally acceptable aspects of the balance of the proposal.
11. Because I have refused the application on the confined issue outlined above, I have not made detailed findings about the other issues in dispute in this case. Any future application for the review site will inevitably need to address the northern interface issue and it is unclear what the implications of a redesign would have for the overall development proposal. I have however recorded my findings or made observations on the more substantive of those issues, in the expectation that they may be of some use to the parties in a future application.
12. Other aspects of this case also necessitate my comment. These concern the contention that the parties at a compulsory conference had resolved issues in dispute and the matters before me were therefore confined to those issues that had not been resolved. For the reasons I elaborate on below, private agreements reached between individual parties do not constitute a formal settlement to which the Tribunal is bound to give effect. Nor do such agreements constitute a formal confinement of issues which limit the Tribunal's obligation to take account of and have regard to all the matters specified in S.84B of the Planning and Environment Act 1987 in determining the Application for Review.

COMPULSORY CONFERENCES AND THE NARROWING OF ISSUES

1. This application was the subject of a compulsory conference conducted on 13 July 2016. The compulsory conference was adjourned to allow further discussions between the parties to occur and reconvened on 20 July 2016.
2. The Tribunal's Order following the 20 July compulsory conference made reference to the circulation of plans and witness statements and other procedural matters, but was otherwise silent on the issue of settlements or agreements reached.
3. Notwithstanding the lack of Tribunal Orders giving effect to settlements or agreements, it is evident from subsequent events that the Applicant proceeded to prepare for the hearing on the basis that agreements had been reached to confine the issues in dispute and to address objector concerns.
4. Following the compulsory conference, the Applicant circulated amended plans[4] and expert town planning, heritage, urban design and traffic witness statements.
5. The authors of the town planning and urban design witness statements referred to instructions they had received that the issues in dispute in this case had either been resolved or confined at the compulsory conference, and that objectors had withdrawn. The authors commented that under instructions witness statements had therefore been prepared to address only those issues that remained in dispute.
6. The Council also circulated an expert witness statement prepared by Mr Rob McGauran. The Tribunal received correspondence from the solicitors representing the Applicant for Review prior to the hearing. That correspondence objected to the circulation of the witness statement because the statement covered matters which the Applicant claimed had been resolved at the compulsory conference. The correspondence stated:

We wish to raise some serious concerns as to the evidence statement of Mr Rob McGauran, circulated this morning ....... on behalf of Council.

Following two compulsory conferences held in respect to this matter, we understand that a number of issues had been resolved between our client, Council and the relevant parties and that only matters which remained in dispute for hearing related to:

1. Setbacks to Johnston Street; and
2. Overall height of the proposed development.

Notwithstanding the apparent understanding between the parties, Council have now circulated the expert evidence statement of Mr McGauran which addresses matters well outside the scope of agreed issues in dispute.

We consider the delivery of such a report to be a blatant abuse of process particularly given that we have prepared (and council were aware that we were preparing) evidence based on these concessions.

Accordingly, we strenuously object to the evidence of Mr McGauran being put before the Tribunal and request that the Tribunal not read the evidence until such time as this matter is resolved between the parties.

1. At the commencement of the hearing, the Council advised that it was no longer pursuing grounds of refusal 3 and 4, that it would not call Mr McGauran to give evidence and it would not be relying on Mr McGauran's evidence[5].
2. In circumstances where parties to a proceeding reach a settlement or part settlement about the matters in dispute, there are various methods by which the agreement can be given effect. Pursuant to section 127 of the Victorian Civil and Administrative Tribunal Act 1998, the Tribunal can amend statement of grounds lodged by any party. The Tribunal under the same provision can also amend the grounds of refusal issued by the responsible authority.
3. Section 84AB of the Planning and Environment Act 1987 also provides the Tribunal with the power to direct that, with the agreement of all parties to the proceeding, the application for review will be confined to specified matters.
4. In circumstances where all parties have reached agreement to confine the matters in dispute at a compulsory conference, the Tribunal must issue an Order giving effect to that agreement. In this case, there was clearly no agreement between all parties to confine issues and unsurprisingly there was no Order from the Tribunal to confine the issues.
5. In the absence of Tribunal Orders amending the statements of grounds, amending the grounds of refusal or confining the issues in dispute, I am required in this case to take account of and have regard to all the matters specified in S.84B of the Planning and Environment Act 1987 in determining the Application for Review. I am not bound to conform with or give effect to any private agreements reached between any or all of the parties. Those agreements may be relevant to my consideration of the application, but they are not binding on me.
6. I advised the parties at the commencement of the hearing that, notwithstanding the Council's advice that it would not pursue all of its grounds of refusal, and notwithstanding its withdrawal of Mr McGuaran's evidence, I would exercise the power available to me under S.98 of the Victorian Civil and Administrative Tribunal Act 1998 to inform myself as I see fit in determining this application. Parties would be provided with the opportunity to address me on issues raised by me.
7. The circumstances outlined above did contribute in this case to unfortunate consequences for the conduct of the hearing and the consideration of relevant matters. Both the town planning and the urban design witnesses were instructed to confine their evidence to specific matters. In accordance with those instructions, neither witness gave consideration to the full range of matters that would normally be expected of town planning and urban design evidence. For example, the northern interface condition and the acceptability of the proposal's design response to that condition was not assessed by them. When the northern interface condition was brought to Mr McGurn's attention, he acknowledged the design response reflected in the application plans and the substituted plans is not acceptable.
8. In the circumstances in which there has been no formal confinement of issues, the failure of the witnesses to provide comprehensive evidence creates difficulties for the Tribunal in fulfilling its obligations to take account of and have regard to all the relevant matters in determining the Application for Review. The Tribunal is confronted with the task of fulfilling its obligations without the benefit of evidence on relevant matters. The capacity of witnesses to assist the Tribunal perhaps in response to questions raised by the Tribunal, is constrained by the fact they have not given consideration to the issues beyond their instructions.
9. I emphasise that my comments are not a criticism of those witnesses who gave evidence in this case. The evidence they gave was in accordance with their instructions.

1. The review site is located on the north side of Johnston Street and currently comprises a predominantly double storey building occupying the whole of the site. A double storey commercial building abuts the review site to the east and a three storey commercial building abuts to the west. To the south, on the opposite side of Johnston Street there are double storey commercial buildings.
2. Immediately abutting the review site to the north there is a single storey industrial building occupied by a motor body repair business (Mr Caminiti's business). This building occupies the whole of the site except for a small front setback to Argyle Street. At the rear of this site close to the common boundary with the review site, there is a spray booth ventilation exhaust stack and two taller discharge and intake flues associated with the spray booth/bake oven within the motor body repair business.
3. The proposal is to demolish the existing building, retaining the front façade of the building, and to construct a seven storey building comprising residential uses at the upper levels. The existing Spanish Club use, which is a restricted place of assembly on the ground floor, is to be retained. Car parking is proposed over two basement levels accessed from a right of way (Harrison Place) that extends from Spring Street to the west and intersects with the review site's western boundary toward the rear of the site.
4. The proposed apartments in the levels above the ground floor are typically arranged with apartments oriented to both Johnston Street and the rear of the site, with additional inboard apartments oriented toward side boundaries. At level 1, the substituted plans show three apartments at the rear of the site, oriented to the north facing the motor body repair business. The façade of the building is setback 4.5m from the northern boundary with 3.0m deep balconies for each of the apartments located within that setback. The setbacks of the levels above level 1 progressively increase so that at level six the proposal is to have the building setback 10.26m from the northern boundary.
5. Concerns about the nature of the northern interface and the impact that the proposed building will have on the continuing operations of the motor repair business, had been raised in objections and in statements of grounds.
6. At the hearing, Mr Caminiti in his submission raised his concerns about the impact of the proposal on his business, and referred to the proximity of the exhaust stacks and flues to the proposed apartments.
7. On the second morning of the hearing, I undertook an unaccompanied view of the review site and the surrounding area, and I was able to observe the exhaust stacks and their proximity to the review site.
8. My observations together with photographs taken by me were presented to the parties at the resumption of the hearing. I expressed my concern about the existence and proximity of the exhaust stacks to the northern boundary of the review site and the impacts that the operation of the stacks would have on the amenity of future residents of the proposed development. I expressed my surprise at the apparent failure to recognise the implications for the design of the proposal and the apparent failure of the design to have regard to the existence of the stacks. The Council's failure to assess the proposal not just in terms of the amenity impacts associated with the exhaust stacks, but also more generally in terms of the review site's proximity to an industrial use likely to have off site amenity impacts, is also surprising. This is especially so given that the Council has a local policy (Clause 22.05 Interface Uses Policy) which specifically addresses issues around the conflict between commercial, industrial and residential activities.
9. Following the receipt of submissions from each of the parties, the Applicant requested the opportunity to address the issues around the proposal's northern interface treatment. I agreed to that request and Ordered that the Applicant must file with the Tribunal and serve on the responsible authority and G & M Caminiti Pty Ltd a report prepared by a suitably qualified person addressing relevant issues associated with the location of the exhaust vents adjacent to the review site's northern boundary.
10. The parties were provided with the opportunity to respond to the report.
11. The Applicant was unable to comply with the timeframes set down in the Order and requested further time in which to comply. I granted that request. The Applicant subsequently submitted a report prepared by Dr Terry Bellair, an environmental science consultant. The report provided an assessment of the existing operation of the spray booth and exhaust stacks[6]. EPA requirements for spray booth exhaust and Australian and New Zealand Standards for spray painting booths, and other statutory provisions were also assessed. Dr Bellair observed that the existing stacks are not compliant with all relevant requirements. Dr Bellair concluded that in the existing situation, off site odour can be expected from the spray booth operation, depending on spray booth operations and weather conditions. Dr Bellair commented that potentially significant solvent emissions can be expected to occur "...only intermittently and for relatively short periods."
12. With regard to the impact on the proposed development, Dr Bellair concluded that if the review site was developed as proposed the residents of the north facing apartments, particularly those on level 1, ".....may at times detect solvent odours for relatively short periods on some occasions while paint is being applied in the spray booth and winds are from the north to north east sector".
13. Dr Bellair further concluded that raising the height of the exhaust stacks would be of little benefit. Dr Bellair recommended that the most appropriate course of action would be to relocate the spray booth discharge point to the north and to increase its height to bring it in to compliance with EPA requirements.
14. Dr Bellair commented in his report that it was his understanding that the Applicant was prepared to pay for the above works.
15. In response to Dr Bellair's report, G & M Carminiti filed a report prepared by Mr Steven Kaye of Masterbench Pty Ltd, an engineering company specialising in air handling systems and the design and manufacture of spray booths/baked enamel ovens. Mr Kaye's report refuted many of Dr Bellair's assertions about the non-compliance of the existing operation with EPA standards and requirements of other authorities. Mr Kaye's report provided an analysis of the existing operations of the motor body repair business, including estimates of the number and duration of jobs per day. Mr Kaye estimated that the spray booth has averaged two jobs per day with a conservative average of spray gun use of 35-45 minutes per job. Mr Kaye points out that the number of jobs may vary widely between zero jobs per day and 4 to 5 jobs per day. Based on an average of two jobs per day Mr Kaye estimates that the booth will emit at least 1.5 to 2 hours of emissions per day and a further 20 to 30 minutes of emissions of diminishing strength during the bake cycle.
16. Following the receipt of both reports, the Council advised that while it was supportive of Dr Bellair's conclusions, the conflicting evidence of Mr Kaye necessitate a further hearing to deal exclusively with this issue[7]
17. Subsequent correspondence from the Applicant's solicitors confirmed the necessity for a further hearing and a number of preferred dates were nominated in that correspondence.
18. The Tribunal listed the matter for a one day hearing on one of the nominated preferred dates (21 December 2016) but the Applicant subsequently advised that their expert witness was no longer available on that date. The Tribunal listed the matter for a directions hearing on 1 December 2016 for the purpose of considering future dates for the hearing.
19. Prior to the directions hearing the Applicant circulated to the parties and the Tribunal a new set of amended plans. The Applicant advised that the amended plans had been prepared because of the inability of the Applicant and Mr Carminiti to reach agreement about the northern interface issue based on Dr Bellair's recommendations. Consequently, the amended plans propose an alternative interface treatment incorporating the enclosure of the north facing balconies and the creation of winter gardens for those dwellings. This treatment is intended to provide the occupants of those dwellings with the opportunity to use the winter garden as a normal balcony or to enclose it to achieve noise and air closure to the north facing exterior. This treatment would be supplemented by an upgraded air conditioning/ventilation system for the north facing apartments. The amended plans were accompanied by a further report by Dr Bellair assessing the air quality implications of the winter gardens.
20. At the directions hearing, the Council and Mr Wardlaw advised that they regarded the amended interface treatment as an acceptable response, although the Council commented that their view is subject to the imposition of revised permit conditions. Mr Carminiti requested the opportunity to further consider the implications of the revised proposal.
21. I issued yet another Order directing the circulation of the amended plans and providing Mr Carminiti with the opportunity to comment on the acceptability of those plans.
22. Mr Carminiti subsequently responded by advising that he continued to object to the proposal and expressed concerns about the acceptability of the proposal in terms of the impact of the exhaust stacks on the amenity of future occupants and the consequences of the amenity impacts on the continued operation of the motor repair business.
23. For reasons that will become apparent, it is necessary for me to record that there then occurred an exchange of unfortunate correspondence between the Applicant's solicitors and Mr Carminiti. The Applicant's solicitors requested a further hearing in that correspondence. The Applicant's solicitors however then requested me to disregard the previous correspondence and expressed regret about the content of that correspondence. The applicant's solicitor's acknowledged Mr Carminiti's rights to pursue his objections to the proposal.
24. I have disregarded the content of the correspondence referred to above, and I have therefore proceeded on the basis that I do not have before me a request for a further hearing in this matter.
25. I have nevertheless turned my mind to whether a further hearing is necessary in this matter. For a number of reasons I have concluded that it is not. Firstly, the Tribunal is obligated to determine each proceeding with as much speed, as the requirements of the Act and the enabling enactment and a proper consideration of the matters before it permit[8]. I am also satisfied that I have sufficient information before me to allow me to proceed to make a decision on the application and importantly, all parties have had sufficient opportunity to put before me materials and information in support of their respective positions. Given that I regard Dr Bellair's reports and Mr Kaye's report as largely complementary, I would not be further benefitted by providing a further opportunity for them to be called to give evidence. Having regard to the protracted nature of the proceedings in this matter, the causes of which have been documented above, it is now necessary for there to be a final resolution of the matter. A further hearing is unnecessary in terms of providing me with additional relevant information and would not be consistent with the Tribunal's obligations to determine each proceeding as expeditiously as possible.
26. It is important to recognise that with respect to the formally substituted plans, there is no dispute that the northern interface treatment reflected in those plans is unacceptable. Mr McGurn acknowledged this once the nature of the interface was brought to his attention. Dr Bellair recommended the spray booth discharge point be relocated to the north and the height of the discharge increased in height. This recommendation was made by Dr Bellair notwithstanding his assertion that residents of the north facing apartments, would detect solvent odours for relatively short periods on some occasions. The amenity impacts are presumably of such magnitude as to warrant Dr Bellair recommending the relocation of the stacks at his client's cost.
27. Whether Dr Bellair's recommended solution was ever an acceptable outcome, is not resolved and is in any event no longer relevant because the Applicant has chosen to pursue an alternative option, as reflected in the further amended plans circulated to the Tribunal and the parties two days before a directions hearing.
28. There is no application before me to substitute the further amended plans but I have nevertheless proceeded to assess the acceptability of the plans and I have concluded that they are not acceptable.
29. I have reached this conclusion because I regard the amenity impact of the exhaust on the future residents of proposed north facing apartments as significant and unacceptable. I have formed that conclusion based on both Dr Bellair's analysis and the information provided by Mr Kaye. Mr Kaye's report is useful because it provides information about the nature, frequency and duration of emissions on an average day (two jobs per day). There will be days when there will be no emissions because the spray booth/oven is not being used, but there will be days when the frequency and duration of emissions will be significantly greater than the average when 4 to 5 jobs are performed. This information complements Dr Bellair's analysis and provides context to Dr Bellair's conclusions that residents of the north facing apartments on level 1, would detect solvent odours for relatively short periods on some occasions.
30. Any operational expansion of Mr Carminiti's motor body repair business, the prospect of which I have no information but which is nevertheless reasonable to at least contemplate, has the potential to increase both the frequency and duration of emissions.
31. The further amended plans put forward by the Applicant do not address the interface condition in an acceptable manner. There are a number of reasons for this. I acknowledge that the operation of the wintergardens is ultimately left in the hands of the occupants of the apartments, and whether the balcony is enclosed or open to the air will be at the discretion of the apartment residents. However, the decision as to whether the balcony is open or enclosed will not be based on climatic conditions or the desire of the residents to enjoy the benefits of fresh air or a cooling breeze. The decision will have to be based on whether the motor body repair business is emitting fumes through stacks located within metres of the rear balconies.
32. The winter garden option also assumes residents will be present at the precise moment when the decision to enclose the balcony has to be made. If left open, the apartment will be exposed to fumes, a consequence residents will have to deal with upon their return to the apartment. Alternatively, the balconies will have to be permanently enclosed.
33. I appreciate that in an inner urban context, residents often make a choice between amenity and the benefits of the locational advantages offered by inner urban sites. I also acknowledge that local policy recognises that while the mix of land uses in inner urban areas creates a diverse and interesting inner city character, it also may create conflict at the interface between the land uses. In response, local policy seeks to maintain the viability of industrial and business areas by in part, ensuring that new residents do not have unrealistic expectations of the level of amenity that can be achieved[9].
34. It is however incomprehensible that the amenity impacts described above for the future residents of the north facing apartments could be regarded as anything other than unreasonable.
35. Because of the nature and significance of the amenity impacts discussed above, I also have concerns about the implications of the proposal on the prospect for the future and ongoing operations of the motor body repair business. As I have discussed above it is Council policy at Clause 22.05 to support the diverse land use mix and built form of the municipality. It is also policy to enable the development of new residential uses close to activity centres, near industrial areas and in mixed use areas while not impeding the growth and operation of these areas as service, economic and employment nodes (my emphasis).
36. The policy at Clause 22.05 includes objectives and guidelines that in effect, require the Council to give careful and detailed consideration of a proposal at the interface with industrial or commercial uses, with a view to ensuring that these uses can continue to function and grow.
37. There is nothing in the Council's assessment of this proposal to indicate that it had any regard to its own policies on this issue.
38. Consequently, there is a very real prospect that the continued operation and potential growth of the motor body repair business would be prejudiced by the approval of this proposal in its current form. This is an unacceptable outcome having regard to the Council's policy support for the continuing operation and growth of service, economic and employment nodes.
39. In making this finding I do recognise that the motor body repair business is zoned Mixed Use which is a residential zone and as Mr McGurn pointed out, the long term future of the site is not necessarily industrial.
40. The purpose of the Mixed Use zone is to implement policy, provide for a range of residential, commercial, industrial and other uses which complement the mixed-use function of the locality, provide for housing at higher densities, encourage development that responds to the existing or preferred neighbourhood character of the area. There is no operational schedule to the zone. Permitted land uses and development controls reflect the zone purpose. While the Mixed Use zone is included in the planning scheme at Clause 32 as one of the suite of residential zones, it is a residential zone that contemplates and provides for the continued operation of non-residential uses and the establishment of new non-residential uses.
41. The provisions of the Mixed Use zone reinforce my previously expressed view that in locations such as this, careful consideration of interface issues is an important element of the design and assessment of development proposals. This proposal has lacked that careful consideration.
42. I also note that the Council's Interface Uses Policy at Clause 22.05 applies to applications for use or development within Mixed Use, Business and Industrial Zones.

1. Because I have refused the application on the confined issue outlined above, I have not made detailed findings about the other issues in dispute in this case. I have however recorded below my findings or made observations on the more substantive of those issues, in the expectation that they may be of some use to the parties in a future application.

1. It is proposed to provide 36 car parking spaces in a double basement and two spaces in a conventional parking stacker. The basement car park is accessed via a car lift with an internal turntable that turns and lifts vehicles concurrently. Access to the car lift and ground level shuffle system is provided via a right of way (Harrison Place) which runs in an easterly direction from Spring Street terminating at the site.
2. The Council is satisfied with the provision of car parking and the proposed access arrangements. Objectors however raise concerns about the practical aspects of the access arrangements especially with respect to the reliance on the long (50m) and narrow (3.0m trafficable width) Harrison Place.
3. Mr Walsh provided expert evidence and I note that the Council's traffic engineers were satisfied with the traffic analysis presented as part of the application.
4. I emphasise that concerns about the access arrangements in particular are not the basis upon which a refusal of the application would be warranted. I do comment however that Harrison Place is very confined and the lack of any opportunity for vehicles to pass along its length is a concern.
5. In this location, the provision of a car parking space for each of the two and three bedroom apartments and most of the single bedroom apartments is a very generous provision. As Mr Walsh points out, the review site enjoys excellent access to pedestrian, bicycle and public transport networks, in addition to its proximity to a wide range of services and facilities, entertainment and activity centres, employment nodes and the central city. Mr Walsh identified three "car share pods" within 200m of the review site. The review site appears to be a prime candidate for a significant reduction in the provision of car parking. A further reduction in car parking provision would reduce the reliance on Harrison Place and potentially the need for elaborate, mechanised parking systems.

1. A substantial part of the hearing was occupied by the receipt and consideration of submissions and evidence concerning the acceptability of the height and setback of the proposed tower above the retained façade of the existing building. It is this aspect of the development that formed the basis of the Council's opposition to the proposal.
2. In broad terms the Council accepts a building of seven storeys on the site, but submits that additional setbacks are required at upper levels in order to achieve an acceptable built form response to the heritage place, the retained façade of the building specifically, and the site's physical and strategic context. In particular, the Council submits that additional setbacks (of about 1.0m) from Johnston Street are required at the lower and mid-levels of the building. It is Mr Gard'ner's evidence that the removal of built form behind the retained first floor façade and its replacement with balconies open to the sky diminishes the contributory value of the building.
3. Mr Sheppard provided evidence in support of the proposal but recommended that in order to increase the recessive elements of level 6, level 5 ought to be brought forward to align with the setback of the levels below, and the setback of level 6 increased.
4. The Applicant advised that Mr Sheppard's evidence on this point is not necessarily supported, and Mr McGurn does not agree that the changes are necessary. The Council also opposes Mr Sheppard's recommendations and it is Mr Gard'ner's evidence that these changes would exacerbate the visual dominance of the proposal in the streetscape and in relation to the retained façade.
5. Had I been prepared to issue a permit I would not have imposed conditions incorporating the changes sought by Mr Sheppard, Mr Gard'ner or the Council generally.
6. In relation to those matters concerning the proposed building's height and Johnston Street setbacks , I am satisfied that the building reflected in the substituted plans achieves an acceptable design response to the site's physical and strategic context, and is acceptable in terms of its respect for the significance of the heritage place.

1. It follows from the above reasons that it is my conclusion that the decision of the responsible authority should be affirmed and no permit issued.

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

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

[3] G & M Caminiti were joined as parties by Order of the Tribunal at a Practice Day hearing on 24 June 2016. A Statement of Grounds was also received from Mr Gotovack of 65 Johnston Street. Mr Gotovack subsequently withdrew his objection.

[4] The amended plans were formally substituted for the application plans at the commencement of the hearing.

[5] I returned Mr McGuaran's witness statement to the Council and I confirmed to the parties that I had not read it.

[6] Based on assumptions about the spray booth operation. A request by Dr Bellair to inspect the spray booth had been declined.

[7] I have not accorded the reports of either Dr Bellair or Mr Kaye as expert witness statements. The authors of the reports were not called to give evidence, and they were not subject to cross examination or questioning from the Tribunal. I have proceeded on the basis that the reports formed part of the Applicant's and Mr Carminiti's submissions.

[8] Section 98(d) Victorian Civil and Administrative Tribunal Act 1988.