1. The deletion of Levels 5 and 7 of the building; 2. If sought, a reduction in the number of car parking spaces set aside for residents of the building, on the proviso that the required number of resident spaces are provided;

1. Further detailing of the materials/finishes at the Commercial Road entry to the building to improve the definition of the residential entry;

1. The basement floor plan lift pit details, corridor widths, apartment layouts, and external materials (to include reflective colourback glazing with fire-resisting core wall at Levels 3 & 4) generally as shown on the Revision E plans prepared by Elenberg Fraser - Project number 16048 dated 1 November 2017 but modified to show: 1. the application of reflective colourback glazing with fire-resisting core wall to the next window to the east of those shown with this treatment on each level; and 2. the redesign of Apartments 08 on Level 4 to accord with the design of Apartment 08 on Level 3. 2. The size and allocation of storage areas; 3. A minimum head clearance of 2.2m for access to the car parking area; 4. Further detailing of the materials/finishes of the metal screen of the roller door providing vehicle access and the adjacent door of the water meters cabinet; 5. Dimensions and line marking of the waiting areas adjacent to the car lifts; 6. Specifications of the car stacker systems including its mode of operation and the platform length, width and headroom clearance; 7. Details of the turntable within the car lift to ensure a B99 vehicle can be accommodated without overhanging the platform; 8. Dimensions of the loading area;

1. Details of on-site resident bicycle spaces in accordance with the appropriate Australian Standard or otherwise as appropriate;

1. Provision of five residential visitor/customer bicycle spaces either in the extended footpath area on Commercial Road or proximate to the residential lobby; and 2. Any changes as required by conditions 3 - Waste Management Plan, 4 - Sustainable Management Plan, 6 - Wind Assessment Report, 7 - Water Sensitive Urban Design, 9 - 3D model, XX - Overlooking Study, 11 - Landscape Plan, and 13 and 30 - Acoustic Reports

All to the satisfaction of the Responsible Authority.

1. The layout of the site and the size, levels, design and location of buildings and works shown on the endorsed plans must not be modified for any reason (unless the Stonnington Planning Scheme specifies that a permit is not required) without the prior written consent of the Responsible Authority.
2. Concurrent within the endorsement of plans, a Waste Management Plan (WMP) generally in accordance with the Waste Management Plan prepared by Leigh Design dated 13 December 2016 must be submitted to and approved by the Responsible Authority. The WMP must include:

1. Dimensions of waste areas; 2. The number of bins to be provided in accordance with the 'City of Stonnington Residential Waste Management Guidelines';

1. Hours of waste and recyclables collection; 2. Method of presentation of bins for waste collection; 3. Sufficient headroom within the car park to allow the passage of waste collection vehicles; 4. Sufficient turning circles for the waste collection vehicles to drive out in a forward direction; 5. Strategies for how the generation of waste and recyclables from the development will be minimised; 6. An overall residential garbage storage capacity of no more than 120 litres per household per week; 7. Provision of internal access for all commercial tenants to dispose of their wastes; 8. Provision that all waste will be collected on site.

When approved, the plan will be endorsed and will then form part of the permit. Waste collection from the development must be in accordance with the Plan, to the satisfaction of the Responsible Authority.

1. Concurrent with the endorsement of any plans, a Sustainable Management Plan (SMP) generally in accordance with the Sustainable Management Plan & Water Sensitive Urban Design Response prepared by Ark Resources dated 10 October 2016 must be submitted to and approved by the Responsible Authority. Upon approval the SMP will be endorsed as part of the planning permit and the development must incorporate the sustainable design initiatives outlined in the SMP to the satisfaction of the Responsible Authority. Amendments to the SMP must be incorporated into plan changes required under Condition 1. The report must include, but not limited to, the following:

1. Demonstrate how the initiatives respond to the objectives of Clause 22.05 of the Stonington Planning Scheme. 2. Identify relevant statutory obligations, strategic or other documented sustainability targets or performance standards

1. Document the means by which the appropriate target or performance is to be achieved

1. Identify responsibilities and a schedule for implementation, and ongoing management, maintenance and monitoring. 2. Demonstrate that the design elements, technologies and operational practices that comprise the SMP can be maintained over time.

All works must be undertaken in accordance with the endorsed Sustainability Management Plan to the satisfaction of the Responsible Authority. No alterations to the Sustainable Management Plan may occur without written consent of the Responsible Authority.

1. Prior to the occupation of the development approved under this permit, a report from the author of the SMP, approved pursuant to this permit, or similarly qualified person or company, must be submitted to the Responsible Authority. The report must be to the satisfaction of the Responsible Authority and must confirm that all measures specified in the SMP have been implemented in accordance with the approved plan.
2. Concurrent with the endorsement of plans, a suitably qualified person must undertake a comprehensive wind tunnel test of the entire development and a Wind Climate Assessment Report must be provided for the written endorsement of the Responsible Authority. Any modifications required to the development in order to ensure acceptable wind conditions must be submitted to and approved by the Responsible Authority as part of the plans for endorsement. The design details of any wind mitigation works must receive the endorsement of the owner/applicant's wind climate experts, referencing the use of architectural features and planting to resolve any issued identified.
3. Concurrent with the endorsement of plans, the applicant must provide a Water Sensitive Urban Design Response generally in accordance with the Sustainable Management Plan & Water Sensitive Urban Design Response prepared by Ark Resources dated 10 October 2016 addressing the Application Requirements of the Stormwater Management (Water Sensitive Urban Design) Policy to the satisfaction of the Responsible Authority.
4. The project must incorporate the Water Sensitive Urban Design initiatives detailed in the endorsed plans and/or stormwater management report.
5. Concurrent with the endorsement of plans, the Applicant is to provide to Council's GIS department a digital 3D model of the development site to specification.
6. Prior to the commencement of the development, an overlooking study must be prepared that identifies any areas of existing secluded private open space at 4-8 Osborne Street where the objective at clause 55.04-5 of the Planning Scheme is not met and, if applicable, recommend any screening required. The recommendations of the overlooking study must be implemented to the satisfaction of the Responsible Authority.
7. Concurrent with the endorsement of plans, a landscape plan prepared by a landscape architect or suitably qualified or experienced landscape designer must be submitted to and approved by the Responsible Authority. When approved, the landscape plan will be endorsed and form part of the permit. The landscape plan must be drawn to scale with dimensions and one (1) electronic copy must be provided. The landscape plan must be generally in accordance with the landscape plans prepared by Etched (Drawing No. 16-279 L-VC1, dated September 2017) but modified to show details of irrigation to the proposed landscaping to the satisfaction of the Responsible Authority.
8. Before the occupation of the development, the landscaping works as shown on the endorsed plans must be carried out and completed to the satisfaction of the Responsible Authority. Landscaping must then be maintained to the satisfaction of the Responsible Authority, including that any dead, diseased or damaged plants are to be replaced.
9. Concurrent with the endorsement of plans, an Acoustic Report prepared by a suitably qualified person and generally in accordance with the Acoustic Report prepared by Acoustic Lodge dated 25 November 2016 must be submitted to and approved by the Responsible Authority. When approved, the Acoustic Report will be endorsed and form part of this permit. The Acoustic Report must including the following:
   1. An assessment of noise sources including form the loading area, Commercial Road and the rail corridor. The acoustic report must make recommendations to limit the noise impacts in accordance with the State Environment Protection Policy (Control of Noise from industry, commerce and trade) No. N-1 (SEPP N-1), and State Environment Protection Policy (Control of music noise from public premises) No. N-2 (SEPP N-2) or any other requirement to the satisfaction of the Responsible Authority.
   2. An assessment of the vibration impacts (including sleep disturbance criteria) to the proposed residential apartments within the development. The rail vibration assessment must be carried out to the current relevant standard (BS 6472) and using suitable equipment.

Once endorsed, the provisions, recommendations and requirements of the Acoustic Report must be implemented and complied with to the satisfaction of the Responsible Authority.

1. Any projection over the street must have a minimum vertical clearance above the footpath level of 2.7 metres and a minimum horizontal clearance of 750 millimetres from the street kerb unless otherwise approved in writing by the Responsible Authority.
2. Any poles, service pits or other structures/features on the footpath required to be relocated to facilitate the development must be done so at the cost of the applicant and subject to the relevant authority's consent.
3. All utility services to the subject land and buildings approved as part of this permit must be provided underground to the satisfaction of the Responsible Authority by completion of the development.
4. The collection of wastes and recyclables from the premises (other than normal Stonnington City Council collection) must be in accordance with Council's General Local Laws.
5. All plant and equipment (including air-conditioning units) must be located or screened so as to minimise visibility from any of the surrounding footpaths, from the public realm to the north, and from overhead views and shall be baffled so as to minimise the emission of unreasonable noise to the environment in accordance with Section 48A of the Environment Protection Act 1970 to the satisfaction of the Responsible Authority. Ventilation systems must be designed and installed in accordance with the relevant Australian Standards.
6. A report for the legal point of discharge must be obtained from Council and a drainage design for the development must be prepared by a suitably qualified Engineer in accordance with that report prior to a building permit being issued. The drainage must be constructed in accordance with the Engineer's design.
7. The existing footpaths levels must not be lowered or altered in any way at the property line to facilitate access to the site.
8. Prior to occupation of the building or commencement of use, any existing vehicular crossing made redundant by the building and works hereby permitted must be broken out and re-instated as standard footpath and kerb and channel at the permit holders cost to the approval and satisfaction of the Responsible Authority.
9. The crossover must be constructed to Council's Standard Vehicle Crossover Guidelines unless otherwise approved by the Responsible Authority. Separate consent for crossovers is required from Council's Building and Local Law Unit.
10. Prior to the commencement of the development, the owner of the land must enter into an agreement with the Responsible Authority under section 173 of the Planning and Environment Act 1987 to covenant that it will:

1. Prepare a plan, to the satisfaction of the Responsible Authority, for the treatment of the shared pedestrian/bicycle paths along Commercial Road and the eastern boundary of the site ('shared paths'). Once the plan has been agreed to the satisfaction of both parties, this plan will be endorsed and will then form part of the permit. The plan must provide comprehensive details of the public realm works and the works must be constructed at the cost of the owner/developer and under the supervision and the satisfaction of the Responsible Authority prior to the commencement of the use allowed by this permit; 2. Allow the public, including Stonnington City Council, to access all shared paths at ground floor level;

1. Indemnify the Responsible Authority for any damage to the development by reason of, or in connection with, the use of the shared paths by the public;

1. Will not make any claim for damages or loss of any kind against the Responsible Authority for any damage or injury caused to the shared paths or to any person using the shared paths; 2. Will maintain public liability insurance for the use of the shared paths by the public; 3. Will develop and maintain the shared paths to a standard that is safe and fit for public access, all to the satisfaction of the Responsible Authority; and 4. Will retain ownership of the shared paths to the extent that they are within the land described in the certificates of title for the site.

The agreement must be registered with the Registrar of Titles in accordance with section 181 of the Planning and Environment Act 1987 and will run with the land, including any common property that may be created as part of the subdivision of the land.

All costs (including legal costs) associated with the preparation and review of the agreement and the registration of the agreement on the Certificate of Title for the land must be paid by the owner.

1. Prior to the commencement of development, the owner must obtain title to the land within the Public Use Zone and consolidate that title with the title of the balance of the site.
2. This permit will expire if one of the following circumstances applies:

1. The development is not started within three years of the date of this permit. 2. The development is not completed within five years of the date of this permit.

1. The use is not commenced within six years of the date of this permit.

1. The use is discontinued for a period of two years or more.

In accordance with Section 69 of the Planning and Environment Act 1987, a request may be submitted to the Responsible Authority within the prescribed timeframes for an extension of the periods referred to in this condition.

Conditions of the Department of Health and Human Services

1. Before the development starts or by such time as agreed by the Responsible Authority and Department of Health and Human Services in writing, an obstacle lighting plan in accordance with Chapter 9.4 of the Civil Aviation Safety Authority Manual of Standards Part 139 Authority be prepared to the satisfaction of Department of Health and Human Services and approved by the Responsible Authority.
2. Obstacle lighting must be installed and operated on the northwest corner of the roof of the building and the northwest corner of the lift overrun in accordance with the approved obstacle lighting plan to ensure the structure can be seen within the helicopter flight paths.
3. Any exhaust plumes from the permitted development must not exceed an upward velocity of 4.3 metres per second.
4. Prior to the commencement of any development (including any demolition or excavation) or by such time as agreed by the Responsible Authority and Department of Health and Human Services in writing, a flight path construction management plan must be prepared to the satisfaction of the Department of Health and Human Services and be approved by the Responsible Authority. The flight path construction management plan must include measures to minimise the impact of the construction of the building on the safe and unfettered operation of the Alfred Hospital helipad. The management measures incorporated within the plan must be implemented during the construction of the building to the satisfaction of the Department of Health and Human Services and the Responsible Authority.
5. Prior to the commencement of any development in accordance with this permit, a Noise Impact Report must be submitted to and approved by the Responsible Authority. The report must be prepared by a suitably qualified person and analyse the likely impacts of helicopter noise associated with the operation of the helipad at Alfred Hospital on future residents of the building and if necessary recommend measures, including specialised glazing systems, façade design, materials and the like, that should be implemented to minimise the impact of any such noise on future residents. The recommendations of the report must be implemented to the satisfaction of the Responsible Authority.

1. Unless otherwise agreed in writing by Public Transport Victoria (PTV), before the development starts, including demolition and bulk excavation, amended plans must be submitted to PTV and VicTrack which must be prepared to PTV and VicTrack's satisfaction, showing:

1. Any proposed changes related to the VicTrack land including the location of any support structures for the deck and air-rights; 2. A feature level survey;

1. Protection screens incorporated into the northern façade of the building to prevent objects falling or being thrown onto the rail corridor, and to prevent access to overhead traction wiring equipment. The screens must be located wholly within the title boundary of the site; and

The cross section of the proposed deck structure (including vertical and horizontal clearances) as shown on the plans must meet the requirements of PTV, VicTrack and the Accredited Rail Operator (ARO).

1. Without limiting the obligations of the permit holder under the Transport (Compliance and Miscellaneous) Act 1983 (Vic), before the development starts, including demolition and bulk excavation, detailed construction/engineering plans and computations prepared by a suitably qualified person(s) must be submitted to PTV and VicTrack for endorsement, for the protection of the railway corridor and all transport infrastructure proximate to the development. The plans must detail and include:

1. All excavation of the site and impacts on the VicTrack land including embankments, the railway and all associated rail infrastructure, and any other transport infrastructure; 2. Protection measures for the Commercial Road bridge structure;

1. The construction methodology of the proposed deck structure over the railway;

1. Lighting and signal sighting arrangements for below the deck structure; and 2. How emergency, fire and life safety access requirements of the railway will continue to be met as a consequence of the development.

Such plans must be prepared to the satisfaction of PTV and VicTrack, in consultation with the ARO.

1. A pre-condition dilapidation survey must be carried out as required by PTV and VicTrack on rail infrastructure proximate to the development including a survey of the Commercial Road bridge at the full cost of the permit holder.
2. Before the development starts, including demolition and bulk excavation, a Construction Control and Indemnity Agreement with PTV and VicTrack must be in place as well as (if required by PTV) an agreement with the ARO, on terms to the satisfaction of PTV and VicTrack at the cost of the permit holder.
3. Before development starts, including demolition and bulk excavation, a Traffic Management Plan must be submitted to PTV for endorsement, which outlines how public transport operations, traffic, walking and cycling movements will be managed throughout the construction and mitigate impacts to these modes to the satisfaction of PTV in consultation with the public transport operators (bus, tram and train). The Plan must also detail how the construction of the development will be managed in the event the tram stop upgrade works (including if associated road enclosures) in Commercial Road are undertaken simultaneously. All traffic management and mitigation costs must be at the full cost of the permit holder and the plan must be implemented in accordance with the approved Traffic Management Plan to the satisfaction of PTV.
4. Before development starts, including demolition and bulk excavation, three (3) copies of a Demolition and Construction Management Plan must be submitted to PTV and VicTrack which must be prepared to the satisfaction of PTV and VicTrack in consultation with the public transport operators. The Construction Management Plan must include details of:

1. Protection measures to minimise impacts to transport infrastructure and to ensure transport infrastructure is not damaged and the operation of the transport network can continue during demolition and construction; 2. Access arrangements for the rail environment including designation of any areas to be used under licence during the construction process and a schedule of occupations of the rail corridor if required;

1. Approvals and permits required from PTV, VicTrack and public transport operators;

1. Rail safety requirements that must be adhered to by the permit holder; 2. How drainage, effluent, material stockpiles, fencing, hoardings will be managed to ensure VicTrack land and assets are not used for, or impacted on by these activities outside of the licenced area; 3. Public safety, amenity and site security; 4. Operating hours, noise and vibration controls; 5. Compliance with appropriate legislation including the Electricity Safety Act 1998; and 6. Air and dust management.

All demolition and construction works must be implemented in accordance with the approved Demolition and Construction Management Plan. The Demolition and Construction Management Plan must be implemented at no cost to VicTrack, PTV and/or the ARO.

1. Before the development starts including demolition and bulk excavation, or other time agreed in writing with Public Transport Victoria, a schedule of building materials and finishes together with a report must be submitted to Public Transport Victoria, the ARO and VicTrack. The report must demonstrate that the building materials and finishes are non-reflective and avoid using red or green colour schemes that may interfere with driver operations. The schedule of building materials and report must be prepared to the satisfaction of Public Transport Victoria in consultation with VicTrack and the ARO.
2. Before the development starts the permit holder must demonstrate that the detailed construction plans (including staging plans) and computations of the development have taken into account smoke dispersion, emergency, fire and life safety requirements of the railway to the satisfaction of a licensed fire engineer and PTV. Any costs associated with compliance with these requirements to be met by the permit holder.

1. If required by PTV, during demolition, bulk excavation and construction of the development, monitoring of movement within the rail corridor in proximate of the development shall be carried out to the satisfaction of PTV and VicTrack, in consultation with the ARO.
2. The permit holder must take all reasonable steps to ensure that disruption to bus and tram operations along Commercial Road, and rail operations on the rail corridor is kept to a minimum during the construction of the development. Foreseen disruptions to bus, tram and rail operations during construction and mitigation measures must be communicated to the relevant transport operator and PTV fourteen days (14) prior to the commencement of those works.
3. The permit holder must ensure that no transport infrastructure is altered as a result of the development without prior consent of PTV. Any damage to public transport infrastructure must be rectified to the satisfaction of PTV and VicTrack, at the full cost of the permit holder.
4. A graffiti management plan should be developed to minimise opportunities for graffiti on the deck structure and allow for its prompt removal, to the satisfaction of PTV, VicTrack and the ARO.
5. Prior to practical completion of the deck structure or other times as agreed with PTV, the permit holder must enter such agreements and easements as required by PTV including an agreement pursuant to Section 173 of the Planning and Environment Act 1987. The permit holder must pay all of VicTrack, PTV and Council's legal costs and expenses including preparation execution and if applicable registration on title. The Section 173 Agreement must be registered on title and provide for the following:

1. Arrangements for the ongoing maintenance of the new deck structure by the permit holder including a deck inspection regime and graffiti management; 2. Access arrangements for VicTrack to the underside of the deck; and

1. Access arrangements for the permit holder to the rail corridor.

1. "As built" drawings of the development, including foundations and deck, must be provided to PTV and VicTrack prior to the issue of the Certificate of Occupancy, or at another time agreed to in writing by PTV and VicTrack. All drawings must be to the satisfaction of PTV and VicTrack, at the full cost to the permit holder. All plans which modify public transport related infrastructure must comply with PTV Drawing Management System (DMS) standards.

Permanent or temporary soil anchors must not be installed in rail land and/or easements without the prior permission of VicTrack and PTV.

No drainage, effluent, waste, oil or other materials must enter or be directed from the site to rail land/easement or stored or deposited on rail land/easements.

No lighting is to spill light onto railway tracks or interfere with the visibility of signals and the rail lines by train drivers to the satisfaction of the ARO.

Prior to the commencement of works in public transport areas, the public transport operator (tram and train) must be contacted to obtain the ARO's conditions and safety requirements for works on, over, under or adjacent to public transport land and/or easements and electrical infrastructure. Access to the public transport areas during construction must conform to all of the necessary public transport operators' guidelines and instructions.

All Australian Standards must be complied with, from commencement to completion of the development.

[1] 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.

[2] Benson Property Group Pty Ltd v Stonnington CC [2017] VCAT 2155

[7] We have applied the Levels as shown on the plans, which are Ground Floor then Levels 1 to 7. This means that Level 7 is the building's eighth storey.

[8] Excluding the lift overrun, stair core and plant screen.

[9] Letter from VicTrack to the Planning Registrar VCAT dated 23 June 2017.

[10] Letter from VicTrack to the Planning Registrar VCAT dated 18 October 2017.

[13] As described, the purpose of clause 37.08 includes 'to facilitate use and development of land in accordance with the Development Framework for the activity centre', and clause 37.08-1 titled_: 'Operation'_ states that 'A schedule to this Zone comprises the Development Framework for the activity centre'.

[14] At clause 4.4 Centre-wide provisions for Design and Development in combination with clause 5.3-3 Prahran Built Form Requirements.

[15] At clause 4.4 Centre-wide provisions for Design and Development.

[16] The 'island' character being its abuttals to local streets rather than adjoining properties.

[17] The Prahran Market is subject to an Individual Heritage Overlay, and is excluded from the ACZ1 in the same manner as the air space above the railway corridor.