Construct a building and construct or carry out works.

Reduce the number of car spaces required under Clause 52.06-5.

1. Before the development starts, one electronic copy of plans drawn to scale and fully dimensioned, 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 generally in accordance with the Plans prepared by prepared by Cheah Saw Architecture, Drawing No. TP09, TP10 to TP16, TP20, TP21, TP25 to TP28, Revision H, dated 24-10-2023, and subject to the changes set out below:

(a) Plant areas and associated structures shown in Drawings TP20 & TP21 Revision I dated 24-1-23, and Proposed Detail Section Drawing TP29 dated 12-12-24; and

(b) Any changes as required by the Waste Management Plan required by condition 3 of this permit and the Sustainability Management Plan required by condition 4 of this permit.

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 with the submission of plans for approval under condition 1 of this permit, an amended Waste Management Plan (WMP) must be submitted for approval to the Responsible Authority. The WMP must be generally in accordance with the Waste Management Plan prepared by Northern Environmental Design dated 13 October 2023, to the satisfaction of the Responsible Authority.
3. When approved, the WMP will be endorsed and will then form part of the permit. Waste collection from the development must be in accordance with the approved WMP, to the satisfaction of the Responsible Authority.
4. Concurrent with the submission of plans for approval under condition 1 of this permit, an amended Sustainability Management Plan (SMP) must be submitted for approval to the Responsible Authority. The SMP must be generally in accordance with the SMP prepared by NJM Design, approved under this permit on 9 July 2020 and including changes from the amended plans described in condition 1 of this permit. Upon approval, the SMP will be endorsed as part of the planning permit and the development must incorporate sustainable design initiatives outlined in the SMP to the satisfaction of the Responsible Authority.

All works must be undertaken in accordance with the endorsed SMP to the satisfaction of the Responsible Authority. No alterations to the SMP 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 under this 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. 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. The level of the footpaths and/or laneways must not be lowered or altered in any way to facilitate access to the site.
4. 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.
5. Prior to occupation of the permitted development, access for persons with disabilities must be provided in compliance with the Disability Discrimination Act 1992 and such access must be maintained at all times the building is occupied or in use.
6. 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.
7. Prior to the commencement of the development, 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 compliance with Council's report prior to a building permit being issued. Drainage must be constructed in accordance with the Engineer's design.
8. Prior to the occupation of the building, fixed privacy screens (not adhesive film) designed to limit overlooking as required by Standard B22 of clause 55.04-6, or otherwise designed to the satisfaction of the Responsible Authority, and in accordance with the endorsed plans must be installed to the satisfaction of the Responsible Authority. Privacy screens must be maintained thereafter for the life of the building to the satisfaction of the Responsible Authority.
9. Prior to the occupation of the building, the walls on the boundary of the adjoining properties must be cleaned and finished to the satisfaction of the Responsible Authority.
10. Adequate provision must be made for the storage and collection of wastes and recyclables within the site prior to the commencement of use or occupation of the building. This area must be appropriately graded, drained and screened from public view to the satisfaction of the Responsible Authority.
11. All fixed plant and equipment (including air-conditioning units) must be located and screened to visually integrate with the development and so as not to be visible from any of the surrounding footpaths and adjoining properties. The location and design of the screening, including the height, colour and material must be shown on the endorsed plans to the satisfaction of the Responsible Authority.
12. Any base building plant shall not exceed the noise limits of the Environment Protection Regulations 2021 and EPA Publication 1826.
13. Any domestic plant shall be designed and operated in accordance with the Environment Protection Regulations 2021.
14. This permit will expire if one of the following circumstances applies:

(a) The development is not started within two years of the date this permit was amended by order of the Tribunal on 16 May 2025 in application for review P208/2024.

(b) The development is not completed within four years of the date this permit was amended by order of the Tribunal on 16 May 2025 in application for review P208/2024.

(c) The use is not commenced within five years of the date this permit was amended by order of the Tribunal on 16 May 2025 in application for review P208/2024.

(d) 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.

1. A maximum 120 patrons is permitted in the restaurant on the basis of the following on site car park allocation:

(a) 1 car space per 1-2 bedroom dwellings

(b) 2 car spaces per 3+ bedroom dwellings

1. Prior to the issue of an occupancy permit, levels taken by a Licensed Land Surveyor must be provided showing the finished floor levels of the development and showing compliance with the endorsed plans and Council requirements relating to the Special Building Overlay.

[1] The submissions 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] Application for review P2387/2016 under s.79 of the Planning and Environment Act 1987 (Vic).

[3] Despite the parties' submissions which incorrectly refer to 15 apartments.

[4] Council's written submissions by email dated 30 October 2024.

[5] Based on material filed, council approved plans under Condition 1 of the permit on at least two occasions - 18 December 2020 and 4 May 2021.

[6] The most recent extension of time requires the development to commence by 18 May 2025 and to be completed by 18 May 2027.

[7] On 13 December 2024, including plans described as Proposed Detail Sections Drawing No. TP29 dated 12/12/2024 and Proposed Elevation Drawing No. TP20 and TP21 Revision I dated 24/10/2023.

[8] Creative Property Developments Pty Ltd v Stonnington CC [2023] VCAT 691 [28] - [40]

[9] As observed for example, in Callea Property Developments Pty Ltd v Wyndham CC [2014] VCAT 466 [43]

[10] Particularly clauses 02.03-1 (Settlement), 02.03-4 (Built environment and heritage); 11.03-1L-01 (Activity Centres), 15.01-2L-01 (Building design) and 15.03-1L (Heritage).

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

[12] See for example general building design and building form strategies at clause 15.01-2L-01.

[13] The requirement for a permit for a dwelling use did not exist when the permit was originally issued. The need for this use permission arose (and remains necessary) following a subsequent amendment allowed by the council on 18 December 2020.

[14] The council's submissions explain that this occurred due to misapplication of relevant case law . The SBO2 was introduced after the permit was originally issued. Schedule 2 is headed 'Drainage system - Stonnington City Council'. Council's written submission of 30 October 2024 confirm that 'Council's Drainage engineers ... are the relevant floodplain authority under the SBO2' which I take to mean that Stonnington Council is the relevant floodplain management authority for the purposes of clauses 44.05-6 and 44.05-7.