Victorian Civil and Administrative Tribunal|2009-05-27

The applicant demonstrate that the proposal is consistent with maintaining the character and amenity of any adjoining dwellings and the operations of any existing nearby commercial and industrial uses, particularly relating to unreasonable:

Overlooking and overshadowing.
Noise, odours or emissions, traffic or parking associated with the use.
Visual bulk.

The responsible authority may agree to height or development bonuses if this will facilitate:

Effective use of upper floors of commercial buildings.
Shop top dwellings and residential development within commercial areas.

The amenity of residential and commercial areas is a key platform in the local policies including with respect to the impacts of increased traffic and parking associated with the future development of activity centres. Local policies refers to supporting reduced car parking requirements to encourage shop top housing and if:
- Parking actually generated by the use is lower than the requirements in Clause 52.06.
- Public transport is available and will be used by staff/patron/residents to access the site.
- The proposal facilitates improvements to public transport, such as bus or taxi parking or other infrastructure, as part of the development.
Other policies in the Scheme address road and pedestrian safety, car parking and traffic in the context of integrated transport and land use planning. [13]
Having regard to the existing Scheme provisions and policies, there can be no doubt that the review site presents opportunities to achieve outcomes sought by planning policy with respect to land use and new development. The debate centres on differing opinions as to the extent to which the proposed development responds suitably to its context and, as part of that, whether its proposed built form departs radically from the existing built form and character, whether exceeding the preferred building heights in Chapel Vision is acceptable, and whether the close proximity to the train station, trams, or other means of public transport will counterbalance the need for not providing car spaces to studio apartments.

There were no submissions that the proposed combination of land uses is inappropriate although there were concerns raised with respect to the lack of diversity in dwelling mix and potential conflicts with respect to uses such as the nearby ET's bar/hotel.[14] We address three points that arise.
First, the proposal provides showrooms, shops and cafés around the site's ground level street frontages. This would complement the mix of uses at street level on the east side of Clifton Street, and significantly improve upon the site's existing inactive street frontages including blank walls to High Street and roller doors along Clifton Street.
The design response, resulting in the activation of these street frontages, would be appropriate and desirable in this Business 1 Zone. This is supported by State and local planning policies as well as Chapel Vision and is the type of accepted design response approach that was adopted by the adjacent Mondriana and Red Tulip developments.
Second, the dwelling mix comprises studios, one and two bedroom units above the ground level retail uses. This is again an appropriate design response, and although there is not a large variety in the size of dwellings proposed, there is differentiation in terms of internal unit layouts and orientations. We do not consider the outcome to be unreasonable for a development of this scale in this location.
Third, the inter-relationship of land use activities, including existing commercial operations, is a relevant consideration. In a principal activity centre, where a mix of land uses is encouraged, there is the potential for land use conflicts between existing businesses and incoming residents particularly with respect to late night uses. It is not unusual for new residents, unaware of the existing activities that occur in a commercial setting, to place pressure on operating businesses to curb perceived nuisances such as noise. Hotels and bars that provide music have an obligation to meet State Environment Protection Policies even if new dwellings are, at a later date, built in close proximity to them. (Those policies do not deal with on-street noise associated with patrons). In this case, the proposed design would achieve a degree of noise-protection through the acoustic measures for dwellings, as proposed through Mr Burton's evidence. We consider that approach to be a sensible response in this location.

Is the proposed built form an acceptable response to the existing circumstances and planning context?

The existing setting surrounding the review site varies in the scale of buildings, from one storey to 3-4 storeys and six storeys. The 12-13 level Housing Commission residential structures are just to the north end of Clifton Street but are part of the visual setting.[15] It is fair to say that the predominant existing scale is 3-4 levels (including the high parapets on many older buildings).
The proposal's departure from this existing character is central to some submissions. One asks why could development that is so much higher than existing buildings be proposed let alone allowed? Another asks why development above the permitted development at No. 210 High Street be allowed?[16]
It is evident from our discussion of the planning context that the existing built form is a reference point but not the principal determinant of the future shape of this principal activity centre. That is because policy is directing a more intensive, higher, built form outcome.
We have referred to the existing Scheme provisions and more current strategic position adopted by the Council in Chapel Vision. Chapel Vision does not carry the same weight as the Planning Scheme but it is also self-evident that the heights referred to in the local policy in the Scheme are outdated and there is no Scheme amendment to which weight can be afforded with respect to revised heights. Chapel Vision deals with the broader urban form of the large activity centre including the area of substantial change associated with areas north of Toorak Road including Forrest Hill. That area is earmarked for significant development including approved buildings above the preferred heights in Chapel Vision.[17]
When taking into account the broader pattern of development that is evolving, it can be seen that the proposed 6 and 12 storey buildings on the review site are of an intermediate scale when compared with the substantial change areas to the north.
This proposed development was described as three distinct buildings, and considerable discussion ensued as to whether the inset connection between the "Paper" and "Scissors" buildings clearly distinguished the separation between these two buildings.
The "Rock" building references the scale of the adjacent six level Red Tulip redevelopment, and is similar in height. In this way, its physical presence to High Street will be similar in terms of scale, thereby causing similar impacts on the public realm. The shadowing onto High Street will not be significantly greater than those cast by the existing four level built form on the review site. The "Rock" building is physically separated from the other two buildings by a wide pedestrian walkway to the internal landscaped courtyard. The extent of the site occupied by the "Paper" and "Scissors" buildings is also similar to the existing buildings on site, with a sizeable setback from existing buildings achieved by the internal light-court, the main difference being that this separation to the adjacent Red Tulip building is proposed as a landscaped terrace. The "Paper" and "Scissors" buildings physically abut each other, are not internally connected, and have very different architectural facade treatments. The "Paper" building has a consistent double loaded corridor setback up through Level 4, with progressively deeper setbacks up to the roof, with Levels 9-11 reverting to a single loaded corridor arrangement with these top three floors facing west towards the internal courtyard. The "Scissors" building faces both Clifton Street and Anchor Place. To Clifton Street it differentiates from the adjacent "Paper" building in both setbacks and façade treatment, which assists in the legibility of the two separate buildings.
Clause 22.02 provides for development to exceed the preferred heights. We are persuaded that the proposal is well designed in terms of its relationship to the public realm, with the highest elements positioned away from High Street at the north end of the site thus reducing the overall visual impact. That does not mean that the "Paper" and "Scissors" building components will not be seen; they clearly will when viewed from the east (eg. south side of High Street), along Clifton Street and from various vantage points in the wider area. However, having regard to the existing physical characteristics and the ability of the proposal to achieve various policy outcomes referred to in Clause 22.02 as the basis to depart from preferred height limits, we find the overall outcome including the height to be acceptable. The 12 storey built forms will be substantially higher than most buildings in the immediate surrounds, but are conceptually well designed and detailed, and avoid creating an overwhelming negative visual impact on this neighbourhood. Our conclusion is further influenced by the proposal's achievement of a number of important improvements including the activation of the ground level frontages with enhanced pedestrian amenities, the internalisation of most loading, a large internal landscaped open space to the central courtyard and rooftops, and the positioning of the vehicular access to the basement carparking from a single location off Clifton Street.
Several parties described the architecture as ugly or modern high rise of an inappropriate form. These types of higher density residential proposals often give rise to a debate as to whether the architecture is "innovative" or "ugly". The fact is, this proposal is different to what presently exists in both use and scale, but this does not mean the permit application should be rejected. The scale and massing have been more important to our decision and we find the architectural treatments have been carefully considered even though the outcome does not appeal to all.
At a detailed design level, the Council sought an additional setback of the 5th level (i.e. that referred to as Level 4) from Clifton Street to match the setbacks of the 6th and 7th levels for the "Paper" and "Scissors" buildings. We are not persuaded this is necessary; the design is acceptable as drawn.
Several other aspects of detailed design were questioned through submissions upon which we set out our conclusions in the following points:
- Conflict between pedestrians and cars: Reference was made to the relationship of the main lobby entries on Clifton Street to the vehicular carpark access that creates a potential for conflict. However, where any driveway crosses the public realm, there is potential for conflict. We are satisfied that this design provides adequate sightlines for both pedestrians, bike-riders, and car drivers to be able to see each other. We accept the expert evidence on this point.
- Relationship of the on-street loading bay with the lobby entry: There is again potential for conflict between pedestrians and trucks, but the location of the on-street loading bay is typical of many activity centre locations. We accept the expert evidence on this point.
- Arrangements for loading: The design internalises much of the loading and provides an on-street bay for larger vehicles. The ability to internalise much of this activity via the basement driveway is highly desirable from an urban design perspective and favourably contrasts with the existing pattern of roller doors along the west side of Clifton Street associated with the review site. We accept the headroom clearance of 3.700 metres limits the use of the internal loading areas to smaller vehicles, with larger vehicles able to use the proposed on street loading bay on Clifton Street.
- Overshadowing of the internal landscaped courtyard: The courtyard would be shadowed for a considerable part of the day as shown in the shadow diagrams. We are persuaded to accept the outcome as acceptable having regard to the fact that large rooftop areas would be available to occupants of the development in addition to their private balconies. Moreover, this courtyard is important by providing visual relief and separation from existing Red Tulip dwellings to the west.
- Safety: There was concern expressed that the proposal would increase the prospect of people loitering and fouling public spaces given, for example, the space proposed to the south-east corner of the "Rock" building. We accept the wider problem of possible criminal damage and offensive public behaviour but we are satisfied the design accords with principles in the Safer Design Guidelines for Victoria.
- Disability access from Clifton Street. This is an aspect of the design that could be improved although we note the obligations to comply with the Disability Discrimination Act 1992.
We also refer to a matter raised in one statement of grounds with respect to the demolition of the existing structures. This is referred to in the context of other developments such as the Red Tulip conversion that have maintained but renovated existing structures. There is no Heritage Overlay or heritage assessment that suggesting the existing building should be retained for reasons of heritage significance. While a redevelopment may have been able to utilise the structures there is no imperative set by the Scheme, or based on any other information, to require that outcome.
For the above reasons, we find the proposal represents an acceptable outcome with respect to the site's context having regard to the future directions for this area being pursued through the Planning Scheme. While departing from the more prescriptive building heights in the Scheme and proposed in Chapel Vision, we are satisfied that the proposal would be respectful of the scale and character of site's context, mindful that this setting will change. The proposal achieves a good public interface and amenity and also allows for uses that are expressly supported by the Scheme and Chapel Vision.

Would the proposal unreasonably affect abutting dwellings?

The main issues raised by the Council with respect to potential off-site amenity impacts relate to overshadowing, visual bulk, overlooking and wind effects. We address each matter in turn.

The Guidelines for Higher Density Residential Development recognise that the amenity of existing residents is a consideration in site responsive design. Design suggestion 2.5.3 is to use side setbacks where they are important for private amenity including solar access. The Guidelines also state that an assessment of the impact of shadowing of private open spaces is typically based on the equinox as the design standard.[18] Thus, even though shadows will be longer in winter, this is not the test set through the planning system. The design suggestions include "Maintain sunlight and daylight access to adjoining private open spaces of dwellings in accordance with Clause 55 of planning schemes".[19] Achieving Clause 55 outcomes will often be difficult in activity centres where a high degree of change is contemplated particularly as existing private open spaces may not currently comply with the numerical standards of Clause 55. Some balconies in Mondriana and Red Tulip are examples of this.
In this context, we refer first to the impact of the proposal on dwellings within the Red Tulip buildings. The north-west corner of the "Rock" building and part of the "Paper" building would affect solar access to several, small, east-facing balconies. This is demonstrated in some of the material before us and was discussed at the hearing. Given the extent of existing shadowing of those spaces which are the only open spaces attached to these units, we suggested at the hearing that a change to the north-west corner of the "Rock" building be considered. This would reduce the loss of solar access to these balconies. The outcome would also improve the outlook from those existing dwellings compared with a multi-level blank wall along that north-western edge of the proposed building.
Mr Pitt tabled a proposal for modifications to this part of the proposed building through Mr Borelli's evidence. This change would improve the physical outcome and certainly improve the outlook from the existing dwellings in the Red Tulip building. This change cannot be repeated to all levels of the proposed building, but is appropriate with respect to Levels 1-4. We will therefore require the north-west bedroom in the "Rock" building at each of Levels 1 - 6 to be deleted with the reconfiguration of dwellings and rubbish areas as required. At Levels 1, 2, 3 and 4 (not levels 5 and 6) some floorspace may be regained in this reconfiguration, by extending the western elevation to the western boundary only where it abuts the solid wall of the abutting Red Tulip building.
A related matter is the height of screening trees adjacent to the same ground level courtyard and balconies. It was suggested at the hearing that the "screen trees" to be provided in the proposed courtyard be lowered in height to reach a maximum height equivalent to the abutting wall. We note this, but will leave this matter as one to be resolved through detailed design and ultimately final plans for the Council's endorsement.
The other sensitive area is to the north-east edge of the Red Tulip redevelopment. The proposal would close the eastern end of an open-ended balcony at 404/12 Anchor Place. We have examined the impact on this north, east-facing, section of abutting balcony having regard to the fully open northern aspect that would remain. We find the proposal to be acceptable having regard to the open northern aspect that would be unaffected.
The Red Tulip redevelopment includes covered walkways over multiple levels of the building facing north and west, with windows facing onto the walkways. The proposal would cause additional shading and daylight loss along these edges and to other east-facing windows at the uppermost levels. However, we do not consider this impact to be unreasonable given the function of these spaces. Windows facing onto the walkways are already substantially shadowed and, to the extent that additional shadowing might occur, we do not find any planning criteria to provide a basis to direct changes to the proposal.
We next refer to increased shadowing of the Mondriana building that is east and north-east of the review site, on the east side of Clifton Street.
The material presented with the substituted plans shows the change in shadowing that would occur. The northern end of the Mondriana building extends past the edge of the Scissors building and would be unaffected at the test times. The shadowing impact would otherwise be variable across the eastern elevation of the Mondriana development, firstly, because of the length of the façade of that building; secondly, because of the variation in this elevation with some balconies recessed while others sit proud of the façade; and thirdly, because of the different levels at which dwellings are located.
We were provided with plans of the Mondriana development at the hearing which has assisted our assessment. Some units extend through to the central courtyard in Mondriana. Others rely solely on solar access to Clifton Street; these are the more sensitive in the current proceeding. For those units, the physical presence of the existing four storey building on the review site already causes shadowing. The additional height of the proposal opposite, would mean a greater loss to solar access depending on the position of the balcony, window and dwelling along the western elevation of Mondriana. Even so, we are persuaded that the impact is an acceptable degree of change in this location having regard to the planning context that applies.

The statements of grounds focus in part on the visual impact of the proposal upon existing residents in nearby and abutting developments. The presentation of the rear of the "Paper" and "Scissors" buildings to residents of Red Tulip is described in one statement of grounds as "blocky", brutal and uniform.
While these concerns are not open to third party input given the exemptions that apply with respect to buildings and works in the Business 1 Zone we still wish to record that we consider the proposal has been designed to respond to the presence of the existing dwellings even though it would present a much bigger building mass.
The Guidelines for Higher Density Housing recognise that views from residential units are desirable for the amenity of their occupants and are of value to the broader public in providing passive surveillance of public spaces. However, views to dwellings can also be a potential threat to their privacy.[20] Whether based on the heights preferred in Chapel Vision or a higher building, existing residents in the Red Tulip building can not expect that the current degree of openness and views provided by the scale of existing buildings to the review site will be retained. The proposed design has included a landscaped internal courtyard that provides separation from the more sensitive parts of the abutting residential buildings to the west. Ambient light and daylight to existing dwellings will be reduced, but this outcome is acceptable for this part of this principal activity centre when also taking into account the existing situation of dwellings fronting Clifton Street and in the Red Tulip complex. Indeed, the way in which the Red Tulip building was designed with boundary walls and light wells, recognised that the adjoining review site, because of its size and location, had the potential for redevelopment. Moreover, dwellings such as that owned and occupied by Mr & Mrs Morris are oriented to the north, east, and west to take advantage of panoramic views to the City and beyond. In this context, the loss of the aspect to the east/north-east would not represent an unreasonable impact when appreciating the overall layout of their dwelling and private open spaces.

The Council expressed concern about the potential for overlooking from several parts of the proposed development, being the west-facing balcony of Apartment C503 and the west facing habitable room windows in Apartments C593 and 603; a matter with which Messrs Borelli and Sheppard agreed. During the hearing, the potential for overlooking from the southern side of the roof deck in the "Scissors" building and the western side of the roof deck in the "Paper" building were also noted.
Most windows and terraces in the proposed development would be greater than 9 metres from any habitable room windows or open space in surrounding properties. This is the design standard referred to in the Guidelines for Higher Density Residential Development relying on Clause 55 of the Planning Scheme.[21] The identified concerns expressed can be addressed by the addition of screening to a minimum height of 1.7 metres above finished floor level to the following:
- the west-facing balcony of Apartment C503;
- the west facing habitable room windows in Apartments C593 and 603;
- the southern side of the roof deck in the "Scissors" building and the western side of the roof deck in the "Paper" building.
We note that the substituted plans would also have the potential to give rise to overlooking from Apartment A512 to the balcony and windows in the Red Tulip building. This would be avoided by the redesign we will require to the north-west corner of the "Rock" building.
The proposed design allows for many other windows facing into the internal courtyard, and as a consequence there may be perceptions of overlooking to a large number of windows and balconies. That outcome would not be unreasonable given the size and location of this site.

The proposal will change the micro-climate including wind movement. A commentary on likely environmental wind conditions was provided through Mr Eaddy's evidence including a supplementary response with respect to impacts on the Morris' terrace to the west. The evidence concludes that the impact on the public realm is likely to be acceptable for walking comfort and that wind tunnel measurements will confirm the wind conditions at the corner of Anchor and Clifton Streets with, if necessary, wind amelioration features developed with respect to outdoor retail use.
The design has adopted some principles referred to in design guidelines such as the Guidelines for Higher Density Residential Development. Stepped building forms assist to reduce wind turbulence at ground level. Canopy elements have also been provided.
We are satisfied for the detailed assessment to be undertaken by a permit condition requiring a comprehensive wind tunnel test of the entire development and a Wind Climate Assessment Report to be provided for the written approval of the Responsible Authority. Any modifications required to the development in order to ensure acceptable wind conditions would be required to be submitted to and approved by the Responsible Authority in the endorsement of plans.

The proposal provides for 292 car spaces and, having regard to the parking requirements in the table to Clause 52.06, seeks a reduction from the standard requirements.
The proposal also provides for some 112 bicycle parking spaces and three on-site spaces for a car sharing program, either through a commercial operator[22] or managed by the body corporate.
A key concern arising in submissions opposing the proposal relates to the amount of on-site car parking. Application of the standard parking rates for dwellings (at two carspaces per dwelling) and shops (8 carspaces per 100 square meters of net lettable floor area)[23] would require a total of 810 carspaces. That excludes the cafés for which there is not a specific standard in Clause 52.06 but, at say 0.6 carspaces per seat for food and drink premises, might increase the shortfall to around 600 carspaces as Ms Morris summarised on behalf of the Council.
Ms Morris explained the Council's position. It does not consider the reduction in car parking sought is justified. She submitted there should be some visitor car parking on-site. Respondent Objectors were similarly concerned that occupants of the building may have cars that would be parked on-street thereby affecting car parking availability for existing residents and their visitors. Residents referred to the minimal provision of on-site car parking and an absence of visitor parking on-site, and the impact on existing on-street and other parking in the area.
We acknowledge reductions in the required car parking ratios for different land uses within the proposed development identified by the Council and witnesses. Ultimately, we are satisfied that the parking allocation referred to by Ms Dunstan and Mr Hunt is acceptable. There would be several surplus carspaces in their allocations. There were different opinions as to whether those three carspaces identified should be allocated for visitor carparking or remain as flexible for future determination. We prefer the latter.
We have also been mindful that there is no provision for motorbike parking, another mode of transport of increasing popularity. We think this would be an appropriate addition as discussed at the hearing. With the loss of several units as a result of our findings, there would be space that could be available for motorbike parking within the basement.
Our conclusion means we are satisfied that:
- it is acceptable that most of the studio apartments not be allocated any on-site parking;
- it is acceptable to rely on off site public car parking for visitors to the apartments; and
- it is acceptable to rely on off site public carparking for customers to the small-scale retail premises and food and drink premises proposed.
We have reached these conclusions on the basis of the empirical assessments by Mr Hunt and Ms Dunstan (that includes some surveys specific to this locality) and the availability of public transport. We have also had regard to Chapel Vision and its references to under-utilised off-street parking as well as the profile of likely occupants of small units in this part of Chapel Street. Moreover, it is self-evident that prospective residents that have a car would need to rent/buy a unit that has an allocated car space or make an arrangement to house their vehicle elsewhere. There is a sizeable segment of the community living in bed-sits that does not own a car based on ABS data for this municipality and, if a resident/ tenant does require a car, they could join the proposed shared car scheme.
The local policy at Clause 22.12 supports a reduction in car parking in specific circumstances and the proposal meets all three nominated criteria (as recited in paragraph 19).

Several parties referred to the increased traffic that would result from a development of the size proposed with consequent impacts on congestion and the safety and amenity within the area. Increased stress on the public transport systems and delays for tram services were related matters raised by the Council and in other submissions.
We consider this impact of the proposed development is acceptable in the context of this site and ambitions for the activity centre. In reaching this conclusion, we accept the evidence of Ms Dunstan and Mr Hunt that the amount of traffic generated by the proposal can be accommodated on the arterial and local roads. The proposal will increase traffic movement in the area that is already congested at times. Traffic management measures are in place meaning that cars using the basement carpark will be required to exit to the north as Clifton Street is one-way. This will increase traffic in the local road network and add cars into streets that pedestrians use to access facilities such as the local park.
The SIDRA analyses referred to in evidence demonstrate that intersections such as High Street/Bangs Street and Hornby Street/High Street will operate satisfactorily. High Street near Chapel Street is busy and there is the prospect of some delays to trams when cars turn right into Clifton Street from High Street [the same would not occur for cars turning left into Clifton Street]. However, the amount of additional traffic would not place an unreasonable impost on the locality and is not a reason to refuse or modify the proposal.
As discussed above, the site has excellent access to fixed public transport (notably trams), which assists in the justification for not providing the amount of carparking on site as required by the standard Clause 52.06 rates. This outcome will encourage those who would occupy this development to use more sustainable transport options, such as walking, cycling, and public transport.

For the above reasons, we find the proposal represents an acceptable outcome in terms of the policies and decision guidelines of the Stonnington Planning Scheme. We will set aside the decision made by the Responsible Authority and direct a permit be issued subject to conditions.

Before the use or development starts, 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 the permit. The plans must be drawn to scale with dimensions and three copies provided generally in accordance with the plans prepared by Plus Architecture, with revisions marked as "Changes for VCAT" being TP100-TP104, TP107, TP109, TP111, TP114, TP200 to TP207, TP300, TP301, TP400, TP401 and drawing numbers LDMP01 revision 3 and LDMP02 revision 05 (landscape plans prepared by Tract Consultants), but further modified to show:
- (a) Delete the north-west bedroom in the "Rock" building at each of levels 1 - 6 with reconfiguration of dwellings and rubbish areas as required. At levels 1, 2, 3 and 4 (not levels 5 and 6) some floorspace may be regained by extending the western elevation to the western boundary only where it abuts the solid wall of the adjoining Red Tulip building. The location of that boundary wall must be confirmed by a survey plan. The setbacks of the "Rock" building from the western boundary must not be reduced at levels 5 and 6.
- (b) The internal inconsistency between plan TP107 revision 01 and the southern elevation of TP200 revision 01 at the south-west corner resolved in accordance with the sketch plan attached to the statement of evidence to the Victorian Civil and Administrative Tribunal in Application P3378/2008 dated 17/04/09 by Mr Neil de la Coeur.
- (c) Provision of parking areas for motorbikes.
- (d) The location of the car park exhaust vent that shall be to the roof unless otherwise to the satisfaction of the Responsible Authority.
- (e) Screening to a minimum height of 1.7 metres above finished floor level to:
  - (i) the west-facing balcony of Apartment C503; and
  - (ii) the west facing habitable room windows in Apartments C593 and 603; and
  - (iii) the southern side of the roof deck in the "Scissors" building and the western side of the roof deck in the "Paper" building.
- (f) A schedule of materials and finishes including for the landscaping works (comprising street trees, street furniture, footpaths, kerbs and channels) on the public land immediately abutting the site within High Street, Clifton Street and Anchor Place.
- (g) Design and specification details for the for the landscaping works on the public land immediately abutting the site within High Street, Clifton Street and Anchor Place
- (h) The capacity of rainwater tanks, to be a minimum of 50,000 litres.
- (i) Soil volumes for all proposed tree planting.
- (j) All bicycle facilities to meet the requirements of Clause '52.34 Bicycle Facilities' of the Planning Scheme and 'AS 2890.3 - 1993' or to the satisfaction of the Responsible Authority.
- (k) Notations on the plans to reflect the recommendations made by Mr R Burton (Statement of Evidence to the Victorian Civil and Administrative Tribunal in Application P3378/2008 dated 15th April 2009) with respect to the acoustic treatment of the building.
The development allowed by this permit and shown on the plans endorsed to accompany the permit shall not be amended for any reason without the consent of the Responsible Authority.
Prior to the commencement of any buildings or works, an Environmentally Sustainable Development Management Plan (ESD Management Plan) must be prepared by a suitably qualified person. The ESD Management Plan must be submitted to and approved by the Responsible Authority. The ESD Management Plan must address the following:
- (a) Energy Management;
- (b) Water Conservation and Re-use;
- (c) Demolition and Construction Waste Management.
- (d) Identify relevant statutory obligations, strategic or other documented sustainability targets or performance standards.
- (e) Document the means by which the appropriate target or performance will be achieved.
- (f) Identify responsibilities and a schedule for implementation, and ongoing management, maintenance and monitoring.
- (g) Demonstrate that the design elements, technologies and operational practices that comprise the ESD management plan can be maintained over time.
Prior to the commencement of any buildings or works, a Green Travel Plan must be submitted to and approved by the Responsible Authority. When approved, the Green Travel plan will be endorsed to form part of the permit. The Green Travel Plan must include actions and recommendations designed to reduce the use of cars and increase the use of alternative travel methods to the satisfaction of the Responsible Authority. It must also include details of the operation of the "flexi-car" scheme.
Prior to the commencement of any works, a Waste Management Plan must be prepared to the satisfaction of the Responsible Authority. When approved, the Plan will be endorsed to form part of the permit. The Plan must be generally in accordance with the Waste Management Plan prepared by Leigh Design and date stamped 22 May 2008. It must also confine the hours during which commercial waste and recycling may be collected to 7.00am - 8,00pm Monday to Saturday and 9.00am - 8.00pm Sunday and public holidays.

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.

The Waste Management Plan may be amended to the satisfaction of the Responsible Authority.

Prior to construction works commencing a Parking Management Plan is to be submitted to the satisfaction of the Responsible Authority and shall:
- (a) Designate car parking spaces to the individual tenancies and dwellings as recommended by Mr S Hunt (Statement of Evidence to the Victorian Civil and Administrative Tribunal in Application P3378/2008 dated 15 April 2009) modified to take account of changes required by Condition 1 of this permit.
- (b) Detail the signing and line marking of parking spaces.
- (c) Detail the operation of the car share spaces.
- (d) Detail the management of the tandem spaces.
- (e) Detail any access controls to the parking area, such as boom gates which shall take into account the required queue length required as per section 3.4 of AS 2890.1.
In order to divert the drainage from the site clear of the Council drainage at the low point of Anchor Place the owner must at their cost construct a 300mm diameter outfall drain along Clifton Street to connect to the Council drain at the corner of King Street. A detailed drainage plan for the drain must be prepared by a suitably qualified Engineer and approved by the Responsible Authority prior to the commencement of construction. The works must be completed in accordance with the approved plan, under the supervision and to the satisfaction of the Responsible Authority. Plan checking and supervision fees will be applicable.
Prior to the commencement of any buildings and works a Tree Management Plan (TMP) prepared by a suitably qualified arborist must be submitted to and approved by the Responsible Authority. When approved, the TMP will form part of this permit and all works must be done in accordance with the TMP. The TMP must detail measures to protect and ensure the viability of the street trees along the properties High Street frontage. Without limiting the generality of the plan it must have at least three sections as follows:
- (a) Pre-construction - details to include a tree protection zone, height barrier around the tree protection zone, amount and type of mulch to be placed over the tree protection zone and method of cutting any roots or branches which extend beyond the tree protection zone.
- (b) During-construction - details to include watering regime during construction and method of protection of exposed roots.
- (c) Post-construction - details to include watering regime and time of final inspection when barrier can be removed and protection works and regime can cease.
Prior to the commencement of any buildings or works, 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 approval 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. The design details of any wind mitigation works must receive the endorsement of the owner(s) wind climate experts and preference should be afforded to the use of architectural features and planting.
Prior to the commencement of any buildings and works allowed by this permit the owner and/or developer must submit a Construction Management Plan to the satisfaction of the Responsible Authority. Once approved, the Construction Management Plan will be endorsed and will then form part of the permit. The Construction Management Plan must include details on how the construction will be undertaken so it has minimal impact on the environment. Details to be provided in the Construction Management Plan shall include, but are not limited to:
- (a) Full work schedule/construction management plan for each individual stage to ascertain impacts on surrounding properties.
- (b) Public/worker access and safety issues.
- (c) Hours of construction activity (including at what stage "out of hours works" are proposed and what type of works are to be conducted outside the hours of operation.
- (d) The location of hoardings, hoists and workers' amenities.
- (e) The location of public precautions, 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.
- (f) Details as to how traffic and pedestrian safety and amenity will be controlled within the vicinity of the site and its surrounds.
- (g) The provision of a traffic management plan, including detailed plans that show the areas required for and the nature of items to be placed on any street during all stages of construction in accordance with approval by the responsible Building Surveyor, entry and exit points

for construction vehicles (including temporary and permanent vehicle crossings), traffic management during construction including road closures/road occupation/footpath closures, work zones/construction zones to accommodate vehicles and deliveries.

(h) Service connections/road and footpath openings and anticipated impact on public land during the connection of different services.

(i) Measures to be used to protect Council infrastructure from damage.

(j) Existing services and environmental management.

(k) A list of all environmental hazards that the activities on-site pose i.e. contaminated soil, materials and waste, dust, stormwater contamination from run-off and wash-waters sediment from the site on roads, construction noise, hours of operation, vibration, washing of concrete trucks and other vehicles and machinery, spillage from refuelling cranes and other vehicles and machinery etc.

(l) Protection measures that will be undertaken to minimise the risk of the above hazards being realised.

(m) Regular monitoring/inspections of the above protection measures.

(n) Identification as to who will be responsible for managing all of the above issues.

(o) Anticipated staging of the development.

All activities associated with the construction of the buildings and works hereby permitted must be carried out in accordance with the approved Construction Management Plan. The Construction Management Plan may be amended to the satisfaction of the Responsible Authority.

The emission of noise or any other emission to the environment derived from activities on the site must conform to standards contained in the appropriate State Environment Protection Policy or Policies to the satisfaction of the Responsible Authority.
All walls on or facing a boundary must be cleaned and finished to the satisfaction of the Responsible Authority prior to the approved development being occupied.
Any poles, service pits or other structures/features on the footpath required to be relocated to facilitate the development must be done at the cost of the owner and subject to the relevant authority's consent.
All redundant existing crossings must be removed with footpath, kerb and channel reinstated at the permit holder's cost to the satisfaction of the Responsible Authority.
The existing street and footpath levels of Clifton Street must not be lowered or altered in any way to allow access to the site unless to the satisfaction of the Responsible Authority.
A total of no more than 140 seats may be made available for the accommodation of patrons within the food and drink premises (cafés), to the satisfaction of the Responsible Authority.
The vehicle crossings must be constructed to Council's standard vehicle crossing specifications to the satisfaction of the Responsible Authority.
All services to the site and buildings approved as part of this permit must be provided underground to the satisfaction of the Responsible Authority.
Before the use allowed by this permit starts or by such later date as is approved by the Responsible Authority in writing, 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.
Before the construction or carrying out of buildings and works in association with the use commences, either:
- (a) A certificate of environmental audit must be issued for the land in accordance with Part IXD of the Environment Protection Act 1970, or
- (b) An environmental auditor appointed under the Environment Protection Act 1970 must make a statement in accordance with Part IXD of that Act that the environmental conditions of the land are suitable for the use.

Four copies of the Certificate of Environmental Audit and/or Statement, complete audit report and audit area plan must be submitted to the Responsible Authority prior to the commencement of the use or development of the land.

Before any building allowed to be constructed under this permit is occupied, a letter must be submitted to the Responsible Authority prepared by the EPA appointed Environmental Auditor to verify that the conditions of the certificate or statement of environmental audit issued for the land have been satisfied.
The area set aside for the loading and unloading of vehicles must not be used for any other purpose.
The loading and unloading of vehicles must not occur outside the hours of 7.00am to 10.00pm Monday to Saturday and 9.00am to 10.00pm Sunday and public holidays unless otherwise permitted in writing by the Responsible Authority.
That part of the site within the Special Building Overlay controlled by Council must:
- (a) Have minimum floor levels of at least 16.32m A.H.D. (200mm above the applicable flood level).
- (b) Have the basement protected from flooding along Anchor Place to a level of 16.27m A.H.D. This includes all openings, vents, doors and windows etc.
This Permit will expire if one of the following circumstances applies:
- (a) The development is not commenced within two years of the date of this Permit, or;
- (b) The development is not completed within four years of the date of this permit.
- (c) The use is not commenced within five years of the date of this permit.

The Responsible Authority may extend the times referred to if a request is made in writing before the Permit expires or within the three (3) months afterwards.

All entry ramps to the basement car park must have a continuous apex with a minimum of 300mm freeboard.
Any drainage system to the basement must be designed such that stormwater is unable to penetrate the basement. Details of the drainage system must be submitted to Melbourne Water and the Responsible Authority prior to works commencing.
All doors, windows, vents and openings to the basement car park must be a minimum of 300mm above the applicable flood level.
Pollution and sediment laden runoff shall not be discharged directly or indirectly into Melbourne Water's drains or waterways.
The ground floor level must be constructed with finished floor level a minimum of 300mm above the applicable flood level.
Prior to the issue of a Certificate of Occupancy, a certified survey plan, showing finished floor levels (as constructed) reduced to Australian Height Datum, must be submitted to Melbourne Water to demonstrate that the floor levels have been constructed in accordance with Melbourne Water's requirements.

Prior to the commencement of works on High Street, the developer must submit to VicRoads for approval, a Traffic Management Plan showing the proposed provision for traffic and signing for the duration of the works, at least 21 days prior to the commencement of works. The Traffic Management Plan must meet the requirements of the VicRoads Worksite Traffic Management (Roadworks Signing) Code of Practice which incorporates AS 1742.3 - 2002. Traffic management/control must be carried out by suitably trained personnel.

The permit holder must take all reasonable steps to ensure that disruption to tram operation along High Street is kept to a minimum during the construction of the development. Foreseen disruption to tram operation during construction and mitigation measures must be communicated to Yarra Trams and the Director of Public Transport fourteen days (14) prior.
The permit holder must ensure that all track, tram overhead and supporting infrastructure is not damaged or that works do not cause unplanned disruption to tram operations. Any damage to public transport infrastructure must be rectified to the satisfaction of the Director of Public Transport at the full cost to the permit holder.

[1] The participative rights of Respondent Objectors are limited given third party exemptions apply under Clause 34.01. That means the grounds able to be pursued by residents are confined to matters such as land use and car parking/traffic rather than buildings and works. We have considered all of the material before us within the ambit of our discretion. However, we have been greatly assisted by the ability to inspect the Morris' and Ms Bryant's apartments.

[3] The site straddles Areas I and J on Map 1 to Clause 22.02. There is no setback mentioned for Area I and a setback for Area J as: "The building be consistent with adjoining properties".

[5] Chapel Vision Structure Plan 2007-2031, December 2007.

[8] The precinct boundary is approximately centrally east-west across the site.

[13] We do not recite these in detail but they include, for example, Clause 21.05, 22.12 and 22.13.

[14] Located on the opposite corner of Clifton and High Streets.

[15] There are two buildings one of which is more prominent in the context of the review site.

[16] This development having been decided by the Tribunal (Member Baird) in Dentow Pty Ltd v Stonnington CC and Ors [2002] VCAT 306 and Dentow Pty Ltd v Stonnington CC &Ors [2002] VCAT 571.

[17] See for example Ryssal Three Pty Ltd v Stonnington CC [2008] VCAT 2113 and Ryssal Three Pty Ltd v Stonnington CC [2008] VCAT 2619.

[20] Guidelines for Higher Density Residential Development at page 25.

[22] These commercial schemes are operational in inner Melbourne as explained in Ms Dunstan's evidence. A commercially based scheme would not be limited to residents of the building. In that event, additional security on-site may be required, such as an extra gate in the car park. We have no objection to that.

[23] We have not discussed the debate as to the appropriate application for showrooms that vary between the parties.

Environment Act 1987

High Street Investment Partners Pty Ltd v Stonnington CC & Ors [2009] VCAT 938 (27 May 2009)

High Street Investment Partners Pty Ltd v Stonnington CC & Ors [2009] VCAT 938

At a glance

Court

Decision date

Source

Judgment (44 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (1)

High Street Investment Partners Pty Ltd v Stonnington CC & Ors [2009] VCAT 938 (27 May 2009)