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[2022] VCAT 566
General information, not legal advice.
Victorian Civil and Administrative Tribunal
2022-05-23
Mr J
Original judgment source is linked above.
Application under section 79 of the Planning and Environment Act 1987 - to review the failure to grant a permit within the prescribed time. Response to interim decision; mixed use development; design response in a heritage overlay; Design and Development Overlay; Overlooking to existing residential development; Noise impacts upon existing entertainment venues.
88 Kerr Street, 71-75 Argyle Street and 380 Fitzroy Street,
Hengi (88 Kerr) JV Pty Ltd v Yarra CC [2022] VCAT 566
1 In application P173/2021 the decision of the responsible authority is set aside.
2 In planning permit application PLN20/0509 a permit is granted and directed to be issued for the land at 88 Kerr Street, 71-75 Argyle Street and 380 Fitzroy Street, Fitzroy in accordance with the endorsed plans and the conditions set out in Appendix A. The permit allows:
- Demolition of the existing buildings and construction of a mixed-use building, use of the land for two food and drinks premises (restaurants) and reduction in the car parking requirements.
Ms N Collingwood of Counsel instructed by Mr A Iser of Planning and Property Partners.
A statement of evidence prepared by Mr B Watson was filed but Mr Watson was not called to give evidence.
Mr M Brennan appeared on behalf of the Fitzroy Residents Association.
Mr W Pearce appeared on behalf of Dr Catherine Clark
Demolition of all buildings and structures and the construction of a seven-storey building above three levels of basement car parking. The proposal comprises commercial premises (food and drink premises) with frontages to both Kerr street and Fitzroy Street. Above the ground floor commercial premises, it is proposed to provide 29 dwellings comprising a mix of 2 and 3 bedroom apartments.
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 43.02: Design and Development Overlay (DDO40).[2]
Clause 45.06: Development Contributions Plan Overlay (DCPO1).
Clause 32.04-2: A permit is required to use the Subject Land for Food & Drinks premises.
Clause 32.04-6: A permit is required to construct two or more dwellings on a lot. An apartment development of 5 or more storeys, excluding basement, must met the requirements of Clause 58.
Clause 43.01-1: A permit is required under HO334 to demolish or remove a building, construct a building or construct or carry out works.
Clause 43.02-2: A permit is required to construct a building or construct or carry out works unless exempted by a schedule to the overlay. None of the exemptions in the schedule are applicable to this proposal.
Clause 52.06-5: A permit is required to reduce (including reduce to zero) the number of car parking spaces required under Clause 52.06-5. A reduction of 14 parking spaces is required for the proposal (7 residential and 7 commercial).
The site is located on the south side of Kerr Street and the east side of Fitzroy Street. It has two frontages, one to Kerr Street of 15.53m (including the 2.68m wide laneway adjacent to 84 Kerr Street) and one to Fitzroy Street of
The site shares a boundary to the north with 70 Kerr Street for 15.67m and a boundary to the west with 76-84 Kerr Street of 22.98m.
The site has an interface with a north- south aligned bluestone laneway along the extent of its eastern boundary for 37.01m.
The site also has laneways to the side of 84 Kerr Street and the rear of 76-94 Kerr Street that are shown as part of the Subject Land on title but are affected by easements benefitting the adjacent lots and are identified on Council's Road Register as Right of Ways.
The site has an 'L' shaped configuration with a total area of 1,187 square metres. It is currently occupied by a two-storey office building and an at grade car park accessed from Fitzroy Street.
The site has several direct abuttals, including the rear of commercial properties that front Brunswick Street to the east. To the south there is an apartment building and a commercial building fronting Argyle Street, and on the corner of Argyle Street and Fitzroy Street is a seven-storey building with basement car parking comprising office and dwelling uses. It includes the preserved streetscape of the former Arthur Engineering Co factory that has individual heritage significance. Known as Fitzroy House, this development is nearing completion.
A two-storey commercial building of late 20th C origins is located on the corner of Fitzroy and Kerr Streets (70 Kerr Street).
The properties at 76 to 84 Kerr Street are single and double storey terrace houses. They are separated from the review site by the east-west aligned lane that runs along their rear boundaries and are graded as contributory heritage buildings.
The Fitz Café and roof top bar is located on the south west corner of Kerr Street and Brunswick Street and is graded as an individually significant heritage building. The Evelyn Hotel is located on the north west corner of Kerr Street and Brunswick Street and is graded contributory. Both heritage buildings have a frontage to Brunswick Street but with their longer frontages to Kerr Street.
The north side of Kerr Street opposite the review site comprises double storey Victorian-era terraces, which are constructed to their respective lot boundaries at Kerr Street and are graded as contributory heritage buildings. They directly adjoin the Evelyn Hotel thus forming a complete heritage streetscape.
In a wider context the site forms part of a former industrial precinct that is undergoing a rapid transition to a mixed-use precinct comprising residential and commercial uses. It enjoys immediate access to the Brunswick Street Major Activity Centre (adjoining to the east). Several higher density residential and commercial developments have been approved and have been constructed or are under construction. The built form is mixed. Kerr Street is a relatively low scale street reflecting its heritage stock and industrial history. Brunswick Street is a heritage street with traditional commercial frontages and built form. Along Fitzroy Street, there are heritage buildings with more recent upper additions. Along Argyle Street, the built form is also relatively recent and more robust.
We conducted an unaccompanied inspection of the site and the surrounding neighbourhood during the hearing.
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 a mixed-use development at 88 Kerr Street, 71-75 Argyle Street and 380 Fitzroy Street, Fitzroy North.
2 The Responsible Authority ultimately decided that had it not been for the application for review it would have refused permission for the following reasons:
3 There are objectors to the application who broadly support the Council's grounds of refusal. The objectors do raise additional matters including concern about the proposal's impact on the amenity of future residents in the abutting Fitzroy House development, the impact on the amenity of the abutting terrace houses, and the lack of affordable housing provision.
4 We conducted a hearing in this case over five days in August 2021. Our decision dated 5 October 2021 (the Interim Decision)[3] provided comprehensive details about the proposal, the review site's physical context, the relevant planning scheme provisions, and the applicable policies. We made several findings about the acceptability of the proposal, but also identified aspects of the proposal about which we were not satisfied.
5 We provided the applicant with the opportunity to prepare amendments to the application to address our concerns. We put in place a process that required the amended application to be provided to the Council and the objectors, who were invited to make written submissions about the amended application.
6 The applicant advised the Tribunal and the parties on 26 October 2021 that it wished to take up the opportunity to prepare amended plans. The amended proposal was circulated to the parties and Tribunal in December 2021.
7 After our Interim Decision, Amendment C288 to the Yarra Planning Scheme introduced Design and Development Overlay - Schedule 40 (DDO40) to the Fitzroy West area including the review site. We put in place a process allowing the parties to comment on the implications of the introduction of DDO40 for our consideration of this matter.
8 Following our consideration of the amended proposal, the supporting documentation and detailed submissions from the Council and respondent objectors, we are satisfied that the amended proposal achieves an acceptable response to the planning scheme provisions as they now apply to the site. We have therefore directed that a permit issue.
PRELIMINARY ISSUE - AMENDMENT C288YARA TO THE YARRA PLANNING SCHEME
10 After we issued our Interim Decision, (DDO40) was introduced into the planning scheme on 22 October 2021.[4] DDO40 now applies to the review site and the wider Fitzroy West area.
11 The Amendment was approved by the Minister for Planning under section 20(4) of the Planning and Environment Act 1987 (the Act). As indicated in the Council's submission to the Tribunal in the August 2021 hearing, the Council in March 2021 had resolved to request the Minister for Planning to approve Amendment C288 under section 20(4) of the Act 1. We were also advised of a separate Planning Scheme Amendment (C269) which had been exhibited and which at the time of the hearing, had been referred to a Panel for consideration.[5]
12 In our Interim Decision at paragraphs 71 and 72, we commented that we were not prepared to accord any significant weight to either amendment primarily because at the time of the hearing there was considerable uncertainty about their final, adopted form.
13 In response to the introduction of DDO40, by Order dated 15 November 2021 we directed the applicant to prepare a written report demonstrating how the amended proposal addresses the objectives and requirements of DDO40. The Council and the other parties were given leave to address in their submissions the amended proposal's response to DDO40.
14 The amended proposal and supporting documentation were given to the Tribunal, the Council, and the other parties on 3 December 2021.
15 The Council by letter dated 17 December 2021 raised a procedural issue and requested additional time to prepare its submission on the amended proposal. The applicant for review objected to the request for additional time.
16 A Practice Day Hearing was conducted on 27 January 2022.
17 At the Practice Day Hearing the Council pursued its concerns about the procedural issue it had raised in its earlier correspondence but did not request a further hearing. The Council sought extra time to prepare its written submission.
19 We issued an Order following the Practice Day Hearing in the following terms:
20 In response to our Interim Decision and the Order following the Practice Day Hearing, we have received submissions from the applicant for review, the Responsible Authority and respondent objectors.
21 All parties have presented us with submissions that assess the amended proposal.
22 The Council's submission provides an assessment of both the amended proposal and the plans substituted by the applicant at the hearing on 2 August 2021 (the application plans).
23 The Council also continues to pursue the procedural issue raised in the 17 December 2021 correspondence. In this respect the Council submits that the Interim Decision and the amended plans which derive from that decision should not be used as a starting point for the future determination of this case. The Council submits that the assessment for the determination of this case and the application plans which were before the Tribunal at the hearing, should be undertaken afresh as if DDO40 always existed.
24 Having acknowledged that our decision to accord C288 no significant weight in our Interim Decision was correct, the Council in its 17 December correspondence submits:
The weight given to Amendment C288 in the course of the hearing and the Tribunal's interim decision (which we do not dispute is correct) is clearly inconsistent with the weight to be afforded a provision which is now part of the planning scheme. The Tribunal's findings were no doubt based on giving Amendment C288 no significant weight.
It is also the case that the evidence as presented to the Tribunal was based on the same understanding of the proposed DDO40 as the Tribunal such that the applicant's independent experts and the various opinions they expressed provided little or no weight to the amendment in their analysis of the application because C288 at that time was not in a legal sense, a seriously entertained planning scheme amendment. Indeed, the same can be said of Council's own independent expert on urban design.
In the event, the findings of the Tribunal beyond paragraph 72 are all therefore, reasonably called into question because the Tribunal made a decision having a then correct but ultimately out of date view of the weight to be given to the important provisions at DDO40
While we appreciate that the purpose of the invitation extended by the Tribunal was to provide the parties with the opportunity to make these submissions on both the Amended Plans and DDO40 as it turns out, there is a question as to the extent the Tribunal's findings as set out in the Interim decision were "contaminated" by the above circumstances such that if DDO40 had been approved at the time that the Tribunal was considering its decision, a different outcome may have ensued. This is of course speculative, but reasonably so especially by reference to the case law on how the Tribunal approaches built form controls in the planning scheme - built form controls which did not exist at that time. In this regard we note in particular for example that in the case of 627FCP Pty Ltd v Stonnington CC [2017] VCAT 414, preferred heights in a DDO should not be regarded as the starting point. Rather, they should be given considerable weight and be a constant thread through the design process.
The implication of all of this is that the Tribunal's Interim Decision should in our submission not be used as a starting point for the future determination of this case and in reference to which the amended plans should be considered. Put another way, the assessment for the determination of this case and the application plans which were before the Tribunal should be undertaken afresh as if DDO40 always existed. We therefore submit respectfully, and with no criticism of the Tribunal whatsoever, that there is a real question as to whether this process of simply taking further submissions on these issues namely the amended plans and DDO40 is a reasonable and fair way of dealing with this matter in all of the circumstances. In our submission it is not.
25 We are not persuaded by the Council's submissions on this point.
26 Our Interim Decision provided a comprehensive analysis of the proposal having regard to the relevant planning scheme provisions applicable at that time.
27 We concluded that the redevelopment of the site was supported by the relevant planning scheme policies. Importantly there has not been any significant change to the applicable policy framework since our Interim Decision.
28 Our analysis then focussed on the acceptability of the proposal's built form, its impact on the significance of the heritage place, its external and internal amenity impacts. We identified several aspects of the proposal which we did not consider to be acceptable and invited the Applicant to prepare amended plans to address those aspects of the proposal we found to be unacceptable.
29 Because the amended proposal was prepared by the Applicant in response to our invitation to do so, they are now the plans that are before us. It is those plans that we must now assess against the relevant planning scheme provisions including DDO40. In our view there is no utility in reverting to a consideration of the application plans which we have already found to be unacceptable.
30 There is also no procedural deficiency associated with our consideration of the amended plans.
31 Because of the process we adopted in the Interim Decision and subsequently, no party has been denied procedural fairness by the preparation of the amended proposal and the amendment to the planning scheme.
32 All parties have been provided with an appropriate opportunity to assess the amended proposal against the current planning scheme provisions.
33 DDO40 is a built form control intended to give effect to the planning policy framework which, as we have commented above, has not changed since our Interim Decision.
34 DDO40 provides guidance about acceptable built form outcomes for this locality by reference to design objectives, and includes requirements for street wall heights, upper-level setbacks, overall building heights, interface requirements, and other matters. The are no mandatory requirements. All the requirements are to be applied on a discretionary basis. Comprehensive decision guidelines against which applications are to be assessed are included.
35 We accept the Council submission that had this application been formulated in the first instance under the provisions of DDO40, the prospect of a different proposal emerging should be acknowledged. For the reasons we have articulated above however, we are not persuaded by the Council submissions that we are precluded from determining this matter based on the amended plans that derive from our Interim Decision.
36 In terms of deciding an acceptable built form outcome for the site, we are now assisted in our deliberations by the design objectives and detailed provisions of DDO40. The absence of detailed development controls to guide our deliberations was a matter we specifically commented on in the Interim Decision.
37 Our interim decision provided comprehensive details about the proposal that was before us at that time, the review site's physical context, the relevant planning scheme provisions, and the applicable policies.
38 It is not necessary for us to repeat that material other than to record that there has been no material change to the site's physical context or the planning scheme's planning policy framework, since we issued the interim decision.[7]
The parties are not significantly apart in their submissions about the review site's strategic context. It is broadly acknowledged that redevelopment of the site can be supported on strategic grounds.
In large part the dispute in this case focusses on built form issues and the acceptability of the proposal's design response. The proposal's acceptability will be informed by the underlying strategic framework applying to the site, but in the absence of detailed built form controls which give effect to adopted strategic objectives we are left with the task of deciding on this proposal's acceptability without the benefit of the guidance provided by those detailed controls.[8]
40 In relation to the acceptability of the proposal's built form, heritage and amenity impacts the Interim Decision made a made a series of findings under the following headings:
41 We concluded that changes were required to the proposal to achieve an acceptable outcome.
42 Because we were satisfied that the redevelopment of the review site is supported by the relevant policy provisions of the planning scheme, we decided to issue an interim decision to provide the Applicant with the opportunity to respond to our concerns about the form and scale of the proposed building, through the preparation of amended plans.
43 In summary, the changes we sought generally amounted to the reduction of one floor across the main part of the development. The changes we identified were detailed in the Interim Decision and are summarised as follows:
44 We put in place a process that required the amended application to be provided to the Council and the objectors, who were invited to make written submissions about the amended application.
45 DDO40 that now applies to the site contains the following objectives:
To ensure development responds to the mixed typology and heritage character in the streetscape by supporting:
To ensure the façade composition and articulation of development responds to:
To encourage development designs that promote pedestrian activity and passive surveillance, contributes to a high quality public realm, and avoid overshadowing of footpaths on opposite side of streets and public spaces.
To ensure that development provides for equitable development outcomes through building separation and a design response that considers the development opportunities of neighbouring properties.
To ensure development responds to sensitive interfaces by ensuring the overall scale and form of new development provides a suitable transition to low scale residential areas and protects these properties from an unreasonable loss of amenity through visual bulk, overlooking and overshadowing.
46 A permit is required to construct a building or construct or carry out works unless exempted by a schedule to the overlay. None of the exemptions in the schedule are applicable to this proposal.
47 DDO40 contains a series of General Requirements[9] that apply to different parts of the area affected by the DDO, and to individual sites.
48 In relation to the review site, those parts of the site facing Kerr Street and Fitzroy Street have preferred maximum heights of 17.6m (5 storeys) and 20.8m (6 storeys) respectively. There is also a preferred maximum new street wall height of 2 storeys (8 metres) to Kerr Street and 3 storeys (11 metres) to Fitzroy Street.
49 Decision Guidelines must be considered as appropriate (in addition to those specified elsewhere in the scheme):
50 DDO40 has been adopted on an interim basis (the schedule ceases to have effect after 21 April 2023) pending the adoption of subsequent permanent controls. DDO40 is part of the planning scheme and the weight we have accorded it is not influenced by its interim status.[10]
51 A Statement of Changes prepared by the Applicant's architect (IDLE Architecture Studio) accompanied the amended plans. The Statement of Changes conveniently summarise the changes from the application plans. We adopt that summary and include it below. In summary the amended plans:
52 The proposal now reflected in the amended plans is for the demolition of all buildings and structures and the construction of a 6-7 storey building
53 There are three levels of basement car parking. Commercial premises (food and drink premises) present at ground level to both Kerr Street and Fitzroy Streets. Above the ground floor commercial premises, it is proposed to provide 25 dwellings comprising a mix of 2 and 3 bedroom apartments.
54 The amended proposal adopts a similar layout to that considered by us in the application plans. It adopts an "L shaped" building that extends over most of the site from Kerr Street through to Fitzroy Street.
55 The amended proposal comprises three connected components being the Kerr Street wing, the Fitzroy Street wing and a central link building.
56 The Kerr Street wing has a 3 storey street wall. Above the street wall the building progressively steps back from Kerr Street before reaching its maximum height of 7 storeys. The 7th storey component comprises a bedroom and balcony associated with the apartment at the lower level (apt 5.03), an apartment that straddles the Kerr Street wing and the central link building.
57 The Fitzroy Street wing has a 3 storey street wall that also steps back above the street wall to its maximum overall height of 6 storeys.
58 There is a central "link building" that runs east/west along the review site's southern boundary to a height of 4 storeys with a 9.0m gap at level 3 (comprising a balcony) that separates the link building into two sections. The eastern section (attached to the Kerr Street wing) incorporates the 7th storey element described above. The western section of the central link building (attached to the Fitzroy Street wing) rises to 6 storeys.
59 The following is a summary of those aspects of the amended proposal that exceed or are varied from the discretionary requirements of DDO40:
60 We also received submissions that the amended proposal does not respond in an acceptable manner to the objectives of DDO40, interface requirements and overshadowing.
61 We note that the Council submits that the maximum height of 7 storeys, exceeds the preferred maximum height by 1 storey for the Fitzroy Street wing where a 6 storey preferred overall height applies. The Applicant submits that the Fitzroy Street wing at an overall height of 6 storeys complies with DDO40.
62 As we have described previously the 7th storey element sits above apartment 5.03 in the Kerr Street wing, an apartment that straddles the Kerr Street wing and the central link building. The central link building is affected by the same discretionary building height under DDO40 that applies to the Fitzroy Street wing, i.e., 6 storeys. We have therefore assessed the amended proposal on the basis that it exceeds the discretionary overall building height by 2 storeys in the Kerr Street wing and by 1 storey in the Fitzroy Street wing which also includes the central link building (6 storeys).
63 The parties broadly agree that the amended plans respond appropriately to our Interim Decision and incorporate the changes sought by us. The Council does however itemise several detailed design matters that have not been included in the amended plans. These are summarised as follows:
64 These are all matters appropriately addressed by permit conditions.
65 The Council has presented a detailed submission that addresses both the merits of the amended proposal and makes detailed submissions about the approach we are urged to adopt in carrying out our assessment of the amended proposal's acceptability.
66 The Council submits that DDO40 provides very specific direction about acceptable built form outcomes for Fitzroy West which reflect and give effect to the extensive strategic work undertaken by the Council in recent years.
67 In support of this submission the Council refers us to the Fitzroy & Collingwood Built Form Review Stage 2: Fitzroy West, Built Form Framework (December 2020) (Built Form Framework) prepared by the Hansen Partnership in conjunction with GJM Heritage. The Built Form Framework formed the basis of Amendment C288. The Council's submission provides a comprehensive summary of the Built Form Framework and its recommendations.
68 The Council submits that the height controls in DDO40 are underpinned by the extensive and comprehensive strategic work in the Built Form Framework. The Council submits that in this case the Applicant has not advanced any clear rationale for an exceedance of height above the DDO40 preferred heights, and consequently, the requirements of DDO40 ought to be adhered to.
69 The Council refers to and relies on several Tribunal decisions which have considered the circumstances under which applications to exceed preferred heights and setbacks are appropriately considered. The decision of Senior Member Liston in Athedim (VIC) Pty Ltd v Moonee Valley CC (No.2)[11] (the Athedim case) is referenced as the 'starting point' which as been subsequently cited in multiple Tribunal decisions deciding whether to exercise discretion on building height controls. In Athedim Senior Member Liston said:
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.
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.
70 In Pellegrino v Boroondara CC_[12]_ (the Pellegrino case) the Tribunal considered the prospect of height control objectives being undermined by the cumulative effect of incremental decisions. The Tribunal said:
The principles of orderly planning seek to avoid an outcome that emerges with the cumulative effect of incremental decisions. The Tribunal frequently states that decisions about individual planning permit applications approving variations from the preferred height can lead to a cumulative undermining of the overlay objectives. This can provide uncertainty about the strategic directions and design principles sought to be implemented.
71 In broad terms therefore the Council submits that we ought to reject to the amended proposal because:
72 In relation to the Council's assessment of the amended proposal against DDO40, it submits that the amended proposal is unacceptable because it:
73 The Council relies on correspondence from Mr Craig Czarny[13] of Hansen Partnership who was requested by the Council to provide advice on:
74 Mr Czarny comments that the amended plans largely address the concerns identified by the Tribunal in its Interim Decision and results in an improved urban design response. Mr Czarny however identifies 3 matters that require adjustment to fully comply with the Interim Decision and to respond appropriately to DDO40. These adjustments are:
75 Mr Czarny's correspondence also contains a detailed tabular analysis of the amended proposal against the objectives and requirements of DDO40. That assessment largely corresponds with and elaborates on his concerns outlined above.
76 The objector submissions broadly align with the Council's assessment about the amended proposal's overall height and street wall heights. The objector submissions raise additional matters relating to amenity impacts, equitable development impacts, rear boundary and upper-level setbacks.
77 In broad terms the objectors submit the proposal ought to comply with the requirements of DDO40 by reducing the overall height and increasing setbacks.
78 The specific concerns raised by the objector submissions are summarised below:
79 The objectors submit that the introduction of DDO40 has 'raised the bar' with respect to the consideration of these issues most of which were the subject of submissions during the August 2021 hearing. The submissions emphasise the inclusion of requirements and decision guidelines in DDO40 relating to matters such as overshadowing and the consideration of wind impacts which were addressed in the Interim Decision in the absence of the specific guidance that is now available.
80 We also received a submission emphasising the amended proposal's reduced height and the consequent impact of the plant area located on the roof of the Fitzroy Street wing, at the interface with the apartment on the top level of the Fitzroy House development to the south.
81 Our assessment of the amended proposal is informed by the planning scheme policy framework that supports a mixed commercial and residential use of the site. The emergence of a more visually prominent built form than that which currently exists on the site is a likely consequential outcome.
82 The policy support for a redevelopment of the review site was comprehensively addressed in our Interim Decision, together with our acknowledgement that a redevelopment of the site must be a balanced response having regard to, among other things the site's heritage context and residential interfaces.
83 The introduction of DDO40 is consistent with and reinforces our findings in the Interim Decision about the policy support for the redevelopment of the site. DDO40 provides more specific guidance about an acceptable built form for the site than that which was available to us at the time of our Interim Decision.
84 In carrying out our assessment of the amended proposal we acknowledge the strategic work undertaken by the Council that has led to the introduction of DDO40.
85 We do not agree however with those submissions that correlate the comprehensiveness of that strategic work with the necessity for a development to adhere to all the quantifiable requirements of the overlay. For those submissions to be correct we would expect to find extensive mandatory requirements in the overlay. This is not the case and wide discretion is available in DDO40 to permit development that departs from its quantifiable requirements.
86 The inclusion of wide discretion in DDO40 is a sensible planning outcome having regard to the fact that DDO40 covers a relatively wide, diverse inner urban area comprising mixed land use patterns, lot sizes and built forms. An acceptable development of individual sites within the affected area will invariably be influenced by the characteristics of each site.
87 In this context it is not a reasonable proposition that adherence to quantifiable requirements is necessary to achieve an acceptable outcome.
88 The exercise of discretion requires consideration of the overlay's objectives which are intended to be a statement of the built form outcomes to be achieved.[14] In circumstances where a decision maker can be satisfied that a proposal achieves the objectives notwithstanding deviations from the quantifiable requirements, the grant of a permit necessarily follows.
89 In relation to the decision guidelines of DDO40 these provide guidance to assist in the exercise of discretion, but they are not requirements in and of themselves.
90 Our approach to the consideration of the amended proposal's response to DDO40 does not contradict the approaches taken by the Tribunal in the decisions referred to us by the Council. We agree that we must give effect to the DDO in arriving at our decision.
91 We note that in Athedim the 'special circumstances' referenced by Senior Member Liston that are needed to justify a departure from the preferred height nominated in the applicable DDO includes circumstances such as the characteristics of the site, its size, its location, the sensitivity of its interfaces etc. These are matters relevant to our consideration of this proposal.
92 With respect to the concerns raised in Pellegrino about the undermining of a DDO by the effect of cumulative decisions on individual applications, we acknowledge the legitimacy of that concern. However, where it can be established that the objectives of an overlay are achieved, cumulative deviations from quantifiable standards would not compromise the intended outcomes of the overlay.
93 In relation to the amended proposal, our findings about the acceptability of the proposal are summarised below:
94 It follows from the above reasons that it is our conclusion that the decision of the responsible authority should be set aside and a permit issued.
95 In deciding the conditions to be included on the permit we have had regard to the "without prejudice" conditions provided to the Tribunal by the responsible authority and the submissions and evidence of the parties in addition to the matters which arise from our reasons.
88 Kerr Street, 71-75 Argyle Street and 380 Fitzroy Street,
1 Before the development commences, amended plans to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the plans will be endorsed and will then form part of this permit. The plans must be drawn to scale with dimensions, and three copies must be provided. The plans must be generally in accordance with the plans prepared by Idle Architects, Sheets TP2.02 - TP2.16, TP3.01 - TP3.06, TP4.01 - TP4.06 and TP5.01 - TP5.06 dated 30/11/21 Revision D, but modified to show:
(a) The material palette updated to specify the colour of material 1, 2, 13, 15 and 16 amended to show the revised monochrome 'purplish' brickwork depicted in the V3 photomontage prepared by Pointilism accompanying the Rev. D plans.
(b) The arrangement of the 'bricksnap' panels modified to form an orthogonal relationship with the façade design of the upper two levels.
(c) Additional notations are required to confirm deletion of the non-vision screening to the western bedroom windows of Apt 5.03, and the southern living room windows of Apt 4.03 and Apt 5.03. recommendations.
(d) Level 05 Floor Plan (TP2.11) updated to show a privacy screen or non-vision glazing with a maximum transparency of 25% up to 1.7m above finished floor level (or highlight windows) to the western dining/living room window of Apt 5.03 and the eastern bedroom window to Apt 5.01.
(e) The main bedroom of Apt 3.02 increased in size to comply with Standard D24; and
(f) Level 06 Floor Plan (TP2.12) and the East Elevation (TP3.03) should be annotated to confirm the north and east balustrades to the balcony of Apt 5.03 on Level 6 has a minimum height of 1.2m above the finished floor level
(g) All plans updated to show the location of habitable room windows and secluded private open space areas to the east (buildings fronting Brunswick Street) within 9 metres of the development.
(h) The two food and drinks premises shown as 'restaurants.'
(i) A door provided to the 'rear access' corridor connected to the unnamed ROW to the east.
(j) Windows incorporated into the eastern elevation of the western stair and western elevation of the eastern stair.
(k) A notation confirming that Australia Post has deemed the mailboxes to be located for convenient access.
(l) Apartment Types: G.01, 3.01, 4.01 and 5.01 updated to demonstrate compliance with clause 58.05-1 (Accessibility).
(m) At least 50% of the proposed dwellings to demonstrate compliance with clause 58.05-1 (Accessibility).
(n) Apartments 4.02/5.02 modified to achieve compliance with clause 58.07-1 (Functional layout) in respect of the bedrooms.
(o) Apartments 1.02/2.02/3.02 modified to achieve compliance with clause 58.07-1 (Functional layout) in respect of the living rooms.
(p) The angled bicycle hoop positioned to the west of the Fitzroy Street food and drinks premises relocated.
(q) The resident bicycle space rooms provided in a lockable compound, in accordance with the requirements of Clause 52.34-3 and Australian Standard AS2890.3.
(r) The employee bicycle spaces provided in one lockable compound, in accordance with the requirements of Clause 52.34-3 and Australian Standard AS2890.3.
(s) All parts of the basement car park are to be contained within the property boundaries of the site or otherwise to comply with regulation 110 of the Building Regulations 2018.
(t) Notations confirming the following electric vehicle infrastructure will be installed within the basement car parking area:
(i) 'Smart' electric vehicle chargers (compatible with Open Charge Point Protocol OCPP1.6-J) fitted to a minimum of 10% of car parking spaces (6) installed prior to occupancy;
(ii) One or more distribution boards with capacity to enable full load charging of 7kW (32 amp) electric vehicle chargers for a minimum of 20% of car parking spaces;
(iii) A scalable load management system to ensure that electric vehicles are charged proportionately within the constraints of the nominated peak building demand and the car park electrical distribution infrastructure;
(iv) An electric vehicle charger submetering system enabling individual billing of energy consumption; and
(v) A dedicated, safe, unobstructed route from the electrical supply point which allows for the future provision of all necessary electrical cabling. This may be achieved using any combination of electrical containment systems, such as:
- electric cable ducting including drawstrings;
- electric cable conduits; and
- electric cable trays and cable ladders.
(u) An increase in the capacity of the rooftop photovoltaic system to 24.5kW;
(v) The external surfaces of the light wells adjoining the southern boundary to be finished in a highly reflective (e.g. white) colour.
(w) Provision of an external window to the study in Apartment 4.03, or location of the laundry and study switched.
(x) The Kerr Street podium updated to include a column continuing to the ground at the eastern corner and the use of silver/white facing brickwork at the ground floor façade to match the brickwork to the level 1 and level 2 columns, in accordance with TP1.54 dated 15/7/21 provided within the Expert Urban Design Evidence Statement of Mark Sheppard dated 19 July 2020.
(y) The Fitzroy Street podium updated to include a column continuing to the ground at the northern corner, brick snap cladding of the same finish applied to the internal southern boundary wall of the vehicle entry and the inclusion of materials and detailing to the ground floor façade in accordance with TP1.53 dated 15/7/21 provided within the Expert Urban Design Evidence Statement of Mark Sheppard dated 19 July 2020.
(z) Part of the east-facing balcony of Apartment 4.04 (5.3 metres taken back from the northern edge) modified to be non-trafficable roof in accordance with TP2.10 dated 15/7/21 provided within the Expert Urban Design Evidence Statement of Mark Sheppard dated 19 July 2020.
(aa) Increase the setback to Kerr Street of levels 4 and 5 by 2.0 metres, consistent with TP 2.10 and 2.11 Revision D, dated 27 July 2021.
(bb) Replace the level 5 and level 6 balcony upstand materiality with glazed balustrades.
(cc) Replace the level 5 balcony concrete slab canopy with a metal louvered canopy.
(dd) The notations '1700 High Overlooking Screen to comply with Standard B22' replaced with the following '1700 high overlooking screen, fixed with maximum 25% transparency.'
(ee) The south-facing windows shown to be fixed to a height of 1.7 metres.
(ff) Detailed diagrams demonstrating compliance with Clause 55.04-6 Overlooking (Standard B22) from:
- The east facing balconies/habitable room windows of the development into habitable room windows within 9 metres. Any additional screening measures used to achieve compliance are to be shown.
- Habitable room windows into secluded private open space areas and habitable room windows to the east, including those of 343 Brunswick Street, within 9 metres. Any additional screening measures used to achieve compliance are to be shown.
- The balcony of Apartment 3.01 into secluded private open space areas and habitable room windows within 9 metres. Any additional screening measures used to achieve compliance are to be shown.
- The west-facing windows facing the westernmost lightcourt and east-facing windows facing the central lightcourt/building break into habitable room windows and secluded private open space areas within 9 metres. Any additional screening measures used to achieve compliance are to be shown.
- The north-facing balconies into the secluded private open space areas within 9 metres, with no screening to extend outside of title boundaries. Any additional screening measures used to achieve compliance are to be shown.
- The west-facing habitable room windows and balconies adjoining the north-south aligned ROW into the habitable room windows and secluded private open space areas within 9 metres, with no screening to extend outside of title boundaries into the adjoining ROW. Any additional screening measures used to achieve compliance are to be shown.
(gg) The 1.8 metre high screen along the southern boundary of the balcony to Apartment 6.01 fixed with maximum 25% transparency.
(hh) Detailed diagrams demonstrating compliance with the Objective of Clause 55.04-7 (Internal Views) of the Yarra Planning Scheme, including (but not limited to) the following:
- Incorporation of a horizontal shelf, or non-vision glazing, to the western habitable room windows of Apartment 4.04 to mitigate internal downward views into the balcony below.
- Incorporation of a horizontal shelf along the balcony balustrade of Apartment 4.01 to mitigate downward views into the balcony below.
- Incorporation of a privacy screen or non-vision glazing with a maximum transparency of 25% up to 1.7 metres above finished floor level (or highlight windows) to the western dining/living room window and western balcony edge of Apartment 5.03.
- Demonstrate the bedrooms facing each other in Apartments 6.01 and 6.02 are offset a minimum of 1.5 metres from the edge of one window to the edge of the other.
- Provision of a privacy screen or non-vision glazing with a maximum transparency of 25% up to 1.7 metres above finished floor level (or highlight windows) to the eastern window of the living room in Apartment 5.02 and the western living / dining area of Apartment 5.03.
(ii) An eastern and western elevation taken at Section line BB providing detailed elevations of the proposed development either side of the central building break.
(jj) Sectional diagrams providing east and west elevations of the easternmost and westernmost lightcourts adjoining the southern boundary.
(kk) Materials schedule update to nominate all screening to be utilised within the development as fixed with a maximum transparency of 25%.
(ll) Deletion of the non-vision glazing/screening to the eastern windows of the bedroom facing the light court in Apartments 1.01, 2.01, 3.01, 4.01, 5.01; western windows of the bedroom facing the light court in Apartment 1.06, 2.06, 3.05, 4.03, 5.03; southern living room windows of Apartment 4.03, 5.03; and southern bedroom and study windows of Apartment 6.02.
(mm) Provision of a horizontal shelf to:
- the balconies of Apartments 5.02, 6.01 to mitigate downward views into the secluded private open spaces of the dwellings at No. 76, 78, 80, 82 and 84 Kerr Street.
- the west-facing habitable room windows of Apartments 4.04 and 5.04 or increase in window sill height or provision of non-vision glazing to mitigate downward views into the secluded private open spaces and habitable room windows at No. 82 and 84 Kerr Street.
- The inclusion of privacy screening and/or shelving to the northern edge of the balconies to apartments 3.02, 3.03, 5.02, 5.03, 6.02 and 6.03 to the satisfaction of the responsible authority.
- The inclusion of privacy screening to the Level 3 western balcony, and the western bedroom and kitchen windows of Apartments 4.04 and 5.04 to the satisfaction of the responsible authority.
(nn) Any changes required by the amended Landscape Plan at Condition 5;
(oo) Any changes required by the amended Sustainable Management Plan at Condition 9;
(pp) Any changes required by the amended Acoustic Report at Condition 11;
(qq) Any changes required by the amended Waste Management Plan at Condition 15; and
(rr) Any changes required by the amended Wind Report at Condition 18.
2 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) elevations at a scale of 1:20 illustrating typical podium details, entries and doors, utilities/service cabinets and typical mid-level and upper level facade details;
(b) section drawings to demonstrate façade systems, including fixing details and joints between materials or changes in form;
(c) information about how the façade will be maintained, including any vegetation;
(d) the strategy must illustrate the legibility of the proposal from short and distant views, including the extent of podium treatment, façade pattern, colours and ability to provide richness, saturation and depth. This can be provided through montages from various vantage points and/or built model;
(e) a materials schedule and coloured drawings outlining colours, materials and finishes, including:
(i) additional details on the materiality, lighting plan, visual transparency and interface of the vehicle access and loading bay/vehicle holding area, ensuring the area is integrated with the overall development including the provision of a detailed plan and elevation of the vehicle loading / waiting area at a scale of 1:20;
(ii) detailed diagrams of Material 8 metal work providing details of transparency, application, operability, etc.;
(iii) details of Material 20 including where the material is applied, demonstrating the material is adequately integrated into the overall development; and
(iv) the percentage of transparency of all transparent materials identified.
3 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.
4 As part of the ongoing progress and development of the site, IDLE Architects or an architectural firm to the satisfaction of the Responsible Authority must be engaged to:
(a) oversee 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.
5 Before the use and/or development commences, 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 Plans prepared by Site Image and dated 24 June 2021 (LP101 - LP107 and LP301) and 10 July 2020 (LP201) but modified to include (or show):
(a) assess the proposal as amended pursuant to Condition 1;
(b) provide details of all ground floor materials and finishes;
(c) show the type, location, quantity, height at maturity and botanical names of all proposed plants;
(d) provide details of the raised planters on the balconies (including planter box materials and dimensions, mulch layer - something that won't blow away, growing media - suitable in weight and content for the balconies, filter media, irrigation method, drainage system, root barrier / water proofing layer);
(e) provide details of the proposed method for irrigation and drainage;
(f) detail the maintenance (duration, regime) and irrigation;
(g) show the materiality of the proposed spaces;
(h) provide a specification of works to be undertaken prior to planting; and
(i) detail plant/planting maintenance schedules and requirements,
to the satisfaction of the Responsible Authority.
6 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,
to the satisfaction of the Responsible Authority.
7 Before the use and/or development commences, the permit holder must provide a security bond of $20,000 for the two adjacent street trees along Kerr Street to the satisfaction of the Responsible Authority. The security bond:
(a) must be provided in a manner, and on terms, to the satisfaction of the Responsible Authority;
(b) may be held by the Responsible Authority until the works are completed to the satisfaction of the Responsible Authority; and
(c) in accordance with the requirements of this permit; or
(d) otherwise to the satisfaction of the Responsible Authority.
8 Before the use and/or development commences, the permit holder must establish Tree Protection Zone fencing in accordance with Australian Standard 4970-2009 for the two adjacent street trees along Kerr Street to the satisfaction of the Responsible Authority.
9 Before the use and/or development commences, an amended Sustainable Management Plan to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the amended Sustainable Management Plan will be endorsed and will form part of this permit. The amended Sustainable Management Plan must be generally in accordance with the Evidence Statement of Jan Talacko, dated 19 July 2021, and confirm that the development will achieve the following performance standards:
(a) 4 Star Green Star Design & As Built (V1.3) rating;
(b) Compliance with the BESSS and Green Star daylight standards for living areas and bedrooms;
(c) Average NatHERS energy rating of 6.5 stars;
(d) Compliance with the energy efficiency requirements of the Better Apartment Design Standards; and
(e) Compliance with the Urban Stormwater Best Practice Environmental Management Guidelines.
(f) Assess the proposal as amended pursuant to Condition 1.
(g) Inclusion of facilities for organic waste management.
(h) Clarify that at least one window in all voids / light courts and each of the other habitable rooms are operable.
(i) Clarify HWS type and consider using a heat pump.
(j) Confirm a commitment to a minimum of 95% of timber to be recycled or from accredited sustainably harvested plantation sources (FSC or AFS).
10 The provisions, recommendations and requirements of the endorsed Sustainable Management Plan must be implemented and complied with to the satisfaction of the Responsible Authority.
11 Before the use and/or development commences, 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 generally in accordance with the Evidence Statement of Darren Tardio dated 19 July 2021, but modified to include or show:
(a) Assess the proposal as amended pursuant to Condition 1.
(b) Confirmation of compliance with clause 53.06 based on measurements and assessment of the identified live music venues (if operational at close to normal capacity). Façade upgrade recommendations should be made without a reliance on noise masking.
(c) Assess all environmental noise to the subject development, including patron noise and existing plant within the surrounds in accordance with Yarra City Council's Guideline: Managing Noise Impacts in Urban Development, October 2019.
(d) Updated to include the hours of operation and patron numbers as approved by this permit.
12 The provisions, recommendations and requirements of the endorsed Acoustic Report, must be implemented and complied with to the satisfaction of the Responsible Authority.
13 Following completion of the development, and prior to its occupation and commencement of use, an Acoustic Report to the satisfaction of the responsible authority must be submitted to, and be approved by, the responsible authority. The Acoustic Report must be prepared by a suitably qualified acoustic engineer and must demonstrate compliance of the mechanical plant, loading bay/vehicle holding area and car lift with both the Environment Protection Regulations 2021 and Publication 1826 (as amended for time to time) and sleep disturbance targets at existing dwellings. When approved, the Acoustic Report will be endorsed and will then form part of this permit.
14 The provisions, recommendations and requirements of the endorsed post development Acoustic Report must be implemented and complied with to the satisfaction of the Responsible Authority.
15 Before the use and/or development commences, an amended Waste Management Plan to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the amended Waste Management Plan will be endorsed and will form part of this permit. The amended Waste Management Plan must be generally in accordance with the Waste Management Plan prepared by Traffix Group and dated September 2020, but modified to include or show:
(a) Assess the proposal as amended pursuant to Condition 1.
(b) Food waste and glass waste diversion included for whole development.
(c) Assessment of risk management associated with waste management at this site.
16 The provisions, recommendations and requirements of the endorsed Waste Management Plan must be implemented and complied with to the satisfaction of the Responsible Authority.
17 The collection of waste from the site must be by private collection, unless with the prior written consent of the Responsible Authority.
18 Before the use and/or development commences, an amended Wind Assessment to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the amended Wind Assessment will be endorsed and will form part of this permit. The amended Wind Assessment must be generally in accordance with the Wind Assessment prepared by MEL Consultants and dated 15 July 2021, but modified to include or show:
(a) Assess the proposal as amended pursuant to Condition 1.
(b) Wind tunnel model measurements undertaken to verify the findings of the desktop study.
19 The provisions, recommendations and requirements of the endorsed Wind Assessment Report (including wind tunnel modelling) must be implemented and complied with to the satisfaction of the Responsible Authority.
20 Except with the prior written consent of the Responsible Authority, the two food and drinks premises (restaurants) use authorised by this permit may only operate between 7am and 11pm, 7 days a week.
21 Except with the prior written consent of the Responsible Authority, no more than the following maximum number of patrons are permitted on the land at any one time:
(a) Fitzroy Street facing Food and Drinks Premises (Restaurant) - 26; and
(b) Kerr Street facing Food and Drinks Premises (Restaurant) - 106.
22 The provision of music and entertainment on the land must be at a background noise level.
23 Speakers external to the building must not be erected or used.
24 The amenity of the area must not be detrimentally affected by the use or development, 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.
to the satisfaction of the Responsible Authority.
25 The plant, services and equipment on the roof must comply with EPA publication 1826.4 Noise limit and assessment protocol for the control of noise from commercial, industrial and trade premises and entertainment venues (Noise Protocol).
26 The use and development must comply at all times with EPA publication 1826.4 Noise limit and assessment protocol for the control of noise from commercial, industrial and trade premises and entertainment venues (Noise Protocol)
27 Before the development is occupied, a Car Park Management Plan to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the Car Park Management Plan will be endorsed and will form part of this permit. The Car Park Management Plan must address the following:
(a) the number and location of car parking spaces allocated to each tenancy;
(b) the number and location of car parking spaces allocated to each dwelling;
(c) the number and location of car spaces for shared use, including time of shared use (if applicable);
(d) details of way-finding, cleaning and security of the visitor bicycle parking and end of trip bicycle facilities;
(e) the number and allocation of storage spaces;
(f) any policing arrangements and formal agreements;
(g) a schedule of all proposed signage including directional arrows and signage, informative signs indicating location of disabled bays and bicycle parking, exits, restrictions, pay parking system etc;
(h) the collection of waste and garbage including the separate collection of organic waste and recyclables, which must be in accordance with the Waste Management Plan required by condition 15;
(i) details regarding the management of loading and unloading of goods and materials; and
(j) details regarding the management of the vehicle holding area with strategies outlined ensuring it is safe, well lit and clean with details of how traffic conflict will be managed.
28 The provisions, recommendations and requirements of the endorsed Car Park Management Plan must be implemented and complied with to the satisfaction of the Responsible Authority.
29 Before the building is occupied, or by such later date as approved in writing by the Responsible Authority, the car lift must be installed in accordance with the manufacturer's specifications by a suitably qualified person. The car lift must be maintained thereafter to the satisfaction of the Responsible Authority.
30 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;
to the satisfaction of the Responsible Authority.
31 Delivery and collection of goods to and from the land may only occur between 7am and 10pm Monday to Saturday, or after 9am on a Sunday or public holiday except for those allowed under any relevant local law.
32 Before the building is occupied, or by such later date as approved in writing by the Responsible Authority, external lighting capable of illuminating pedestrian and vehicular entrances and the internal entrance courtyard must be provided within the property boundary. Lighting must be:
(a) located;
(b) directed;
(c) shielded; and
(d) of limited intensity,
to the satisfaction of the Responsible Authority.
33 Finished floor levels shown on the endorsed plans must not be altered or modified without the prior written consent of the Responsible Authority.
34 Before the building is occupied, any wall located on a boundary facing public property must be treated with a graffiti proof finish to the satisfaction of the Responsible Authority.
35 Before the development is occupied, or by such later date as approved in writing by the Responsible Authority, all screening and other measures to prevent overlooking as shown on the endorsed plans must be installed to the satisfaction of the Responsible Authority. Once installed the screening and other measures must be maintained to the satisfaction of the Responsible Authority.
36 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.
37 All buildings and works must be maintained in good order and appearance to the satisfaction of the Responsible Authority.
38 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.
39 Before the use and development commences, or by such later date as approved in writing by the Responsible Authority, the new vehicle crossings must be designed and constructed:
(a) in accordance with any requirements or conditions imposed by Council;
(b) demonstrating satisfactory access into and out of the site with a vehicle ground clearance check using the B99 design vehicle, and be fully dimensioned with actual reduced levels (to three decimal places) as per Council's Vehicle Crossing Information Sheet;
(c) at the Permit Holder's cost; and
(d) to the satisfaction of Council.
40 Before the building is occupied, or by such later date as approved in writing by the Responsible Authority, the kerb and channel along the frontages to Fitzroy Street and Argyle Street must be reconstructed:
(a) at the permit holder's cost; and
(b) to the satisfaction of the Responsible Authority.
41 Before the building is occupied, or by such later date as approved in writing by the Responsible Authority, the footpaths along the property's Fitzroy Street and Argyle Street road frontages must be stripped and re-sheeted:
(a) with a cross-fall of 1 in 40 unless otherwise specified by Council;
(b) at the permit holder's cost; and
(c) to the satisfaction of the Responsible Authority.
42 Before the building is occupied, or by such later date as approved in writing by the Responsible Authority, any redundant vehicular crossing must be demolished and re-instated as standard footpath and kerb and channel:
(a) at the permit holder's cost; and
(b) to the satisfaction of the Responsible Authority.
43 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 (including trenching and excavation for utility service connections) must be reinstated:
(a) at the permit holder's cost,
(b) to the satisfaction of the Responsible Authority.
44 Before the building is occupied, or by such later date as approved in writing by the Responsible Authority, any new vehicle crossing must be constructed
(a) in accordance with any requirements or conditions imposed by Council;
(b) at the permit holder's cost; and
(c) to the satisfaction of the Responsible Authority.
45 Except with the prior written consent of the Responsible Authority, Council assets must not be altered in any way.
46 Prior to the completion of the development, subject to the relevant authority's consent, the relocation of any service poles, street line markings, car parking sensors, service structures or service pits necessary to facilitate the development must be undertaken:
(a) at the permit holder's cost; and
(b) to the satisfaction of the Responsible Authority.
47 Before the building is occupied, or by such later date as approved in writing by the Responsible Authority, the removal of any kerbside parking sensors and any reinstatement of parking sensors will require the Permit Holder to pay Council the cost of each parking sensor taken out from the kerb/footpath/roadway. Any costs associated with the reinstatement of road infrastructure due to the removal of the parking sensors must also be borne by the Permit Holder.
48 Prior to the issue of a building permit, commencement of the development, or issue of a Statement of Compliance (whichever occurs first) the Development Infrastructure Levy must be paid to Yarra City Council in accordance with the approved Development Contributions Plan, or the Owner must enter into an agreement with Yarra City Council to pay the amount of the levy within a time specified in the agreement.
49 Before the use and development commences, a Construction Management Plan to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the plan will be endorsed and will form part of this permit. The plan must provide for:
(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) site security;
(h) management of any environmental hazards including, but not limited to,:
(i) contaminated soil;
(ii) materials and waste;
(iii) dust;
(iv) stormwater contamination from run-off and wash-waters;
(v) sediment from the land on roads;
(vi) washing of concrete trucks and other vehicles and machinery; and
(vii) spillage from refuelling cranes and other vehicles and machinery;
(i) the construction program;
(j) preferred arrangements for trucks delivering to the land, including delivery and unloading points and expected duration and frequency;
(k) parking facilities for construction workers;
(l) measures to ensure that all work on the land will be carried out in accordance with the Construction Management Plan;
(m) an outline of requests to occupy public footpaths or roads, or anticipated disruptions to local services;
(n) 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;
(o) 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;
(p) 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:
(i) using lower noise work practice and equipment;
(ii) the suitability of the land for the use of an electric crane;
(iii) silencing all mechanical plant by the best practical means using current technology;
(iv) fitting pneumatic tools with an effective silencer;
(v) other relevant considerations.
(q) any site-specific requirements.
(a) any stormwater discharged into the stormwater drainage system must be in compliance with Environment Protection Authority guidelines;
(b) 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;
(c) vehicle borne material must not accumulate on the roads abutting the land;
(d) the cleaning of machinery and equipment must take place on the land and not on adjacent footpaths or roads; and
(e) all litter (including items such as cement bags, food packaging and plastic strapping) must be disposed of responsibly.
51 The provisions, recommendations and requirements of the endorsed Construction Management Plan must be implemented and complied with to the satisfaction of the Responsible Authority.
52 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 9 am or after 3 pm;
(c) Sundays, ANZAC Day, Christmas Day and Good Friday at any time.
(a) the development is not commenced within three years of the date of this permit;
(b) the development is not completed within five years of the date of this permit;
(c) the food and drinks premises uses (restaurants) are not commenced within five years of the date of this permit.
The Responsible Authority may extend the periods referred to if a request is made in writing before the permit expires or within six months afterwards for commencement or within twelve months afterwards for completion.
[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] DDO40 was introduced into the planning scheme following the August hearing and following the issue of the Tribunal's Order dated 5 October 2021. That Order provided the applicant with the opportunity to prepare amended plans.
[3] Hengyi (88 Kerr) JV Pty Ltd v Yarra CC [2021] VCAT 1093
[4] Amendment C288yara. The Amendment introduced DDO control on an interim basis pending the preparation of permanent controls for the Fitzroy West area (DDO40), Alexandra Parade (DDO38) and Victoria Parade (DDO39). The schedules to the DDO will expire on 21 April 2023. The gazettal of C288yara was brought to the Tribunal's attention by the Responsible Authority on 27 October 2021.
[5] Amendment C269 proposes to update Council's local policies by replacing the Municipal Strategic
Statement (MSS) at clause 21 and local planning policies at clause 22 of the Scheme with a Municipal Planning Strategy (MPS) and local policies within the Planning Policy Framework (PPF), consistent with the structure introduced by Amendment VC148. At the time of the hearing, the Council had referred submissions to the Amendment to a Panel. The Panel hearings had not commenced. The C269 Panel has now reported its recommendations to the Council acting as the Planning Authority for the Amendment. The Panel's recommendations remain under consideration by the Council.
[6] Amendment VC174 referenced in our Order concerns a planning scheme amendment which introduced new provisions for apartment development applications, to implement the recently revised Better Apartment Design Standards. VC174 was gazetted on 20 December 2021.
[7] The review site's physical context was described in detail at paragraphs 17 - 43 of the Interim Decision. The Planning Policy Framework was explored in detail at paragraphs 50 - 55. Our findings on strategic issues are at paragraphs 73-76.
[8] [2021] VCAT 1093 Paragraphs 73-74
[9] Street Wall Height and Setback Requirements, Upper Level Setback Requirements, Overall Building Height Requirements, Interface Requirements, Overshadowing, Common Boundary and Building Separation requirements, Building Layout Requirements, Façade Design Requirements, Access, Parking and Loading Area requirements.
[10] Following Oxdra Pty Ltd v Stonnington CC [2012] VCAT 312
[11] Athedim (Vic) Pty Ltd v Moonee Valley CC (No 2) [2010] VCAT 1091
[12] Pellegrino v Boroondara CC [2018] VCAT 435
[13] Mr Czarny gave evidence for the Council in this matter at the August 2021 hearing.
[14] Clause 43.02-1 of the parent control states that a schedule to this overlay must contain a statement of the design objectives to be achieved for the area affected by the schedule.
[15] In the Interim Decision we stated that: We are less concerned about the visual impact of the upper levels from the Kerr Street intersection. This is because we found the positions where the view would be available are quite limited, and we are satisfied that the setbacks are sufficient to allow the three storey street wall hold the attention of the viewer, with the glimpse of the upper level being too limited to dominate the Kerr Street streetscape.
[16] The online version of DDO40 does not include this requirement although the downloaded PDF version of the planning scheme does include it. All parties have referenced the requirement in their submissions. We have relied on the PDF version on the basis that there is an error in the online version in the form of an omissions of part of the Overshadowing requirement.
Hengyi (88 Kerr) JV Pty Ltd
Yarra CC [2022] VCAT 566