1. Leave is given to the applicant to substitute for the permit application plans, the following plans filed with the Tribunal:

A12002: VC101, VC102, VC201, VC202, VC211, VC221, VC222, VC223, VC224, VC225, VC226, VC227, VC261, VC301, VC302, VC303, VC304, VC401, VC711, VC712 and VC713.

1. The decision of the responsible authority in relation to permit application no. PLN11/0172 is set aside.
2. A permit is granted in relation to land at 444 - 452 Smith Street, Collingwood. The permit will allow:
   • Development of a seven storey building comprising dwellings and two ground floor shops,
   • A reduction in car parking requirements, and
   • A waiver of loading bay requirements;

1. The permit is subject to the conditions contained in Appendix A to these reasons.

Mr Chris Wren, SC Barrister with Mr Chris Taylor, Solicitor of Planning and Property Partners Pty Ltd. They called the following witnesses:

• Mr Bryce Raworth, Heritage Architect.
• Mr Steve Hunt, Traffic Engineer of Cardno.
• Mr Tim Biles, Town Planner of Message Consultants.
• Mr Andrew Hutson Architect.

He also tabled photomontage evidence from Mr Chris Goss of Orbit Solutions.

Rani Merkel, Barry Smith, SJC Golf Pty Ltd, Melbourne Water and Department of Transport.

Construction of a seven storey building comprising:

• Ground floor with two shops to face Smith Street, apartment dwelling foyer, bicycle storage, service provision and garage access from Mater Street. The garage is to accommodate 40 vehicles in two rows of car stackers. 38 of these spaces are to be allocated to dwellings and 2 for the shops.
• Two upper levels of apartments so that the first three floors comprise a three level street wall to Smith Street and Mater Street of approximately 11.4 - 11.8m.
• Fourth level comprising balconies and terrace areas at podium, including a communal garden to face Smith Street. This provides a 8.4m setback of upper levels to Smith Street.
• Fifth and sixth levels comprising dwellings shrouded in vertical timber panels to form a single architectural form.
• A seventh floor comprising dwellings recessed behind the timber panels of lower levels that extend to form a balustrade to this upper level.

A total of 63 dwellings are proposed above the ground floor level. (29 x 1 bedroom and 34 x 2 bedroom).

Application under Section 77 of the Planning and Environment Act 1987.

Design and Development Overlay - Schedule 13 (eastern end of the site only)

Environmental Audit Overlay (eastern part of site only)

43.02 - Buildings and works in a Design and Development Overlay.

44.05 - Buildings and works in a Special Building Overlay

45.03 - Environmental Audit Overlay (applies only to the eastern part of the site).

Clauses 11, 15, 16, 17, 18, 21.04, 21.05, 22.05, 22.10, 43.02, , 52.07 and 65.

The site has an area of approximately 1,286sqm and is located at the north east corner of Smith and Mater Streets. The site is occupied by a single storey former warehouse, now used as a factory retail outlet. The site forms two lots. The eastern part (169sqm) is a lot with only frontage to Mater Street and is referred to as "the eastern part of the site". To the north of this eastern part, both lots have rear access from a laneway. Both lots have existing vehicle access direct from Mater Street. To the east is the former Collingwood Gospel Hall that forms the edge of the Gold Street Heritage Precinct. This includes much of Mater Street to the east that then comprises mostly one and two storey Victorian and Edwardian dwellings.

Smith Street, between Johnson Street and Alexander Parade comprises generally large sites that were warehouses and factories and now provide retail form. There are some smaller traditional shop fronts.

I undertook an accompanied site inspection at the commencement of the second day of hearing on 31 May 2012.

DD Planning v Yarra CC [2011] VCAT 889

1. At the conclusion of the hearing, I gave an oral decision to Grant a Permit generally in accordance with draft conditions as discussed at the hearing. I stated that final wording of conditions would be subject to further review of the Tribunal. This is a summary of reasons given at the hearing and my resolution of permit condition wording.

1. This review results from a refusal by Yarra City Council to issue a planning permit for a seven storey mixed use building at 444 - 452 Smith Street, Collingwood comprising two ground level shops, 63 apartments and 40 on site car spaces.
2. The proposal was refused by Council, against an officer recommendation to support the proposal on the basis that the height of the building did not respect the character of the surrounding area. Three land owners in Mater Street have supported Council's refusal by making further written submissions to the Tribunal. These owners did not attend the hearing.
3. From written and oral submissions made I find the key issues I need to determine are:

1. Is the proposal of a height and form contextual to its environs? 2. Does the proposal provide sufficient on site car parking to service the needs of the development?

1. Does the development pose any significant amenity impacts to properties in Mater Street?

1. Does the development provide appropriate internal amenity? 2. Are there any other reasons why a permit should not be granted?

Is the proposal of a height and form contextual to its environs?

1. Council refused this application on one ground. That was that the height of the building did not respect the character of the area, failing to meet the objectives of Clause 15.01, 21.05 - 2 and 22.10 of the planning scheme. These three clauses of the planning scheme all provide policy to promote good design that addresses its site context.
2. The site has two main interfaces, one to Smith Street and one to Mater Street. Ms Thomas submitted that Council's main concern was the height and interface of this height to Mater Street. To this extent she relied on the provisions of DDO13[1] that affects the eastern part of the site along with state and local policy that directs sensitive interfaces and transitions between building heights.

Does the proposal address the Mater Street Interface and policy context?

1. Ms Thomas submitted the eastern interface of this development was particularly problematic as it did not provide sufficient recession between the three storey street wall façade and the upper four levels. She also submitted the eastern elevation was too high in context of the Design and Development Overlay that affects the eastern part of the site. She emphasised this was particularly important in relation to the adjoining heritage precinct to the east.
2. I appreciate that Council's heritage advisor had concerns about the plans that were before Council when it made its decision. I accept that the previous plans may have been viewed as being too close and too bold to the adjoining Mater Street context. However, I am satisfied that the application plans as now before me have suitably addressed these issues. These plans sufficiently recess the upper levels through physical setback, form and materials to ensure the upper section reads a recessed and secondary form to the lower levels, whilst retaining an architectural form.
3. Ms Thomas made particular submission that the eastern part of the land, affected by DDO 13 provided a form inconsistent with the design objectives of this DDO.
4. This DDO has objectives to respect heritage sites and to provide transition between the scale and character of the traditional retail strip centre in Smith Street and lower-rise residential areas to the east.
5. The development where it is affected by DDO13 has a maximum height of less than 12 metres which complies with the provisions of the DDO. The DDO in any event does not then preclude development over 12 metres, only that "development above the street facade should be setback and scaled to be subservient and contextual to buildings along Smith Street". I reiterate my earlier findings that this building does just that.
6. Ms Thomas made reference to a previous Tribunal decision in which Member Fong indicated that providing a podium setback is to enable upper levels to be "well articulated and screened when viewed from opposite ground floor level"[2]. Whilst podium levels often result in upper levels being screened, I find policy provisions at both state and local level do not direct that a podium level must ensure upper levels are screened. As directed by DDO 13, and state and local policy, podiums are to ensure articulation, differentiate pedestrian street walls, reduce building bulk when viewed from the street and ensure adequate daylight into adjoining street environs. I find the development achieves these policy aims.
7. Finally, I note that whilst this site adjoins a Heritage Overlay it is not in a Heritage Overlay. I find its height and form to the adjoining heritage building is acceptable, although I agree with the evidence of Mr Hutson and Mr Biles that there is a need for the eastern podium wall to be refined, so that this wall is not simply a blank concrete wall. This is a matter that can be addressed by condition.

1. Ms Thomas indicated that Council was satisfied with the design response as it faces Smith Street other than for two sections of "wing" walls that provide an architectural feature to the upper levels of the building.
2. I find that the Smith Street interface suitably addresses its commercial context on what is a non heritage site.
3. I accept the evidence of Mr Hutson and Mr Biles that the wing wall features help to break up what may otherwise be a potentially too monotonous upper building form. I therefore will retain these elements of the building.

Does the proposal provide sufficient on site car parking to service the needs of the development?

1. Council did not oppose the car parking provision, although Ms Thomas noted that Council's ideal would be that one bicycle space would be provided per dwelling, based on Council policies to encourage 'green travel'.
2. Mr Hunt acknowledged that there is little empirical data to understand what the likely take up of bicycle spaces is in inner city apartment buildings, but his evidence was that the benchmark for bicycle parking in developments such as this should be to provide one bicycle space per dwelling. I concur that in areas where a significantly reduced parking rate is being relied upon, encouragement to undertake other travel modes needs to be genuinely made. This can be achieved on this site due the proximity of a range of public transport options and should also include appropriate bicycle facilities, over and above the standard provisions of Clause 52.34.
3. Mr Hunt explained that the bicycle storage facility could accommodate up to 30 spaces with additional bicycle storage being possible in some of the storage areas as well as potentially on some balconies. I accept that given the large size of a number of the balconies, with side areas, that are not the main usable open space, the development provides sufficient on site bicycle parking, along with access to other transport options that warrants the reduction in car parking proposed.
4. I am also satisfied that an on site loading bay is not required for the shops given the site context based on the Council officer report assessment.

Does the development pose any significant amenity impacts to properties in Mater Street including increased traffic and overshadowing.

1. Ms Thomas submitted Council did not have any issue with the external or internal amenity of the building.
2. Ms Merkel's written submission was that the development may overshadow her property at 12 Mater Street. My review of the shadow diagrams that form part of the proposal is that no unreasonable overshadowing will occur.
3. Mr Smith also questioned how waste collection would occur, when there was already problems with on street collection from rear laneways in the area.
4. I note Council's engineering department had no issue with the waste collection provisions proposed and find no reason why this matter cannot be addressed through appropriate condition on permit.

Does the development provide appropriate internal amenity?

1. Mr Biles and Mr Hutson in their evidence noted minor issues with the internal amenity of the building that I accept and will address through conditions on permit. This includes that there is unnecessary screening of balconies to dwellings 309 and 310. I will therefore direct these east facing balconies be reduced in height. I will also direct that either the air conditioning plant to the east of the bedroom of dwelling 309 be relocated away from the bedroom or, as discussed at the conclusion of the hearing, the bedroom window be relocated to face north.
2. Mr Biles' provided evidence that the internal corridors could be improved through greater natural light. I agree and will accept Council's draft condition in relation to this matter.
3. I also agree with his evidence that dwellings 601 and 602 could be brought forward, toward Smith Street so the building aligns with the lower wall height. These dwellings have comparably small living areas to their balconies and the layouts inhibit natural light into the upper corridor. Whilst bringing the walls slightly forward will mean that the upper level is less recessed from Smith Street I find the elements that will be viewed from Smith Street will still be recessive and meet the provisions of the planning scheme. Further I note that Ms Thomas submitted Council did not oppose this alteration.

Are there any other reasons why a permit should not be granted?

1. Ms Thomas stated that Council's assessment was that there were no adverse external or internal amenity impacts resulting from the proposal. Both Melbourne Water[3] and the Department of Transport support the proposal subject to conditions that can be addressed as part of a permit approval.
2. Based on the significant changes to the design as provided for in the plans substituted by that Tribunal that better address its eastern interface and generally provide a more recessive upper form I find the proposal adequately addresses its site and context.
3. I therefore will direct that a planning permit issue subject to conditions.

1. The hearing for this matter was held on 30 and 31 May 2012 and concluded at midday on 31 May, 2012. At 3.43pm on 31 May 2012, the Tribunal received an email from Melbourne Water referring to the hearing "currently underway" advising it did not object to the substitution of plans but requesting that additional conditions be added to its previous comments about the proposal to the responsible authority.
2. Whilst an oral decision was given, no orders had yet been made at the time the email was received and finalisation of conditions had not been considered by the Tribunal.
3. I subsequently provided opportunity for relevant[4] parties to comment on the changes sought by order dated 5 June 2012 and circulation of my proposed revised conditions in order dated 26 June 2012. The conditions forming part of this order include the revised conditions as outlined in the order dated 26 June 2012.

1. In discussion of conditions at the hearing, Mr Wren, on behalf of the permit application submitted that Condition 8b) should be amended to refer to "one" car space per shop tenancy rather than "two", as only one space was to be provided for each tenancy. The ground floor plans indicate that the two shop tenancies may be merged to form one shop. I find that if the shop was merged into one single tenancy it would still be appropriate to allocate two car spaces to this larger shop. To resolve this 'either/or' scenario I have modified condition 8b) to state that two car spaces should be provided to ground floor retail area, with a minimum of one space per tenancy.

• Development of land for a seven storey building comprising ground floor shops and dwelling entry with six levels of residential apartments above.
• Reduced parking provision
• A waiver of loading bay.

1. Before the 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 must be provided. The plans must be generally in accordance with the application plans, but modified to show:

1. All projections beyond the building line (including the canopy above the pedestrian entry on Mater Street) with a minimum overhead clearance 3m from the surface of the footpath;
2. details of all services (including air conditions and solar panels) confirming they will be screened from street view;

1. screening details showing a maximum 25% transparent screens to a height of 1.7m above finished floor level;

1. the 'retail' areas labelled as 'shops';
2. deletion of the screens on the east face of the balconies of Unit 309 and 310;
3. the east boundary wall of the podium treated in a manner to break down the mass of the elevation;
4. relocation of the air-conditioning unit of Unit 309 away from the bedroom window or the relocation of the bedroom window of Bedroom 2 to Unit 309 to face north;
5. a reduced west boundary setback of the west wall of Unit 601 and 602 to align with the west elevation wall of Units 501 and 502 below with any internal alteration of units 601 and 602 required to accommodate this change and that of Condition 1i);
6. additional provision for natural daylight access to the internal corridors on the first, second and sixth floors;
7. details of the art wall along the southern elevation including elevations showing the indicative visual representation of the art, any perforations to the art treatment, and material finishes;
8. Storage areas delinated in the ground floor plan to ensure at least one storage space per dwelling.

1. Details of bicycle storage within the "bicycle storage" room on the ground floor, generally in accordance with details articulated Mr Hunt's Statement of Evidence dated 16 May 2012;

1. details of materials and finishes, generally in accordance the Orbit Architecture Plan A12002_VC350.

1. all works (where relevant shown on the plans) recommended by the professional acoustic engineering report as required by condition 5;

• a CCTV camera and monitor located within the vehicle entrance that is visible to drivers exiting the car park and that provides a view of the footpath of Mater Street east of the car park exit. The CCTV monitor and camera must be in accordance with the Traffic Management Plan required by condition 8;

1. the crossover with a minimum 1m lateral clearance from the adjacent power pole;
2. the car parking and bicycle parking layout modified in accordance with Annex 1 of Mr Hunt's Statement of Evidence dated 16 May 2012;
3. car stacker specification in accordance with Annex 2 of Mr Hunt's Statement of Evidence dated 16 May 2012;
4. bicycle signage in accordance with clause 52.34-5 of the Yarra Planning Scheme;
5. a minimum height clearance of 2.2m between the car park and the level above in accordance with AS/NZS 2890.1:2004

1. All development and use must accord with the endorsed plans. Any alterations must be approved in writing by the Responsible Authority.
2. Floor levels shown on the endorsed plan(s) must not be altered or modified without written consent of the Responsible Authority.
3. All new on-boundary walls must be cleaned and finished to the satisfaction of the Responsible Authority.

1. Before the plans are endorsed, an acoustic report prepared by a suitably qualified acoustic engineer to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. The report must show how the requirements of State Environment Protection Policy N-1 and relevant Australian Standards will be met and must prescribe the form of acoustic treatment to:

1. protect dwelling occupants with a direct interface to the commercial tenancies, next to, or below, from associated commercial noise sources, including, but not limited to plant and equipment having regard to industry accepted sleep disturbance criteria and in accordance with the relevant Australian Standards;
2. protect all dwelling occupants from external noise sources with specific regard to Smith Street and off-site commercial areas having regard to industry accepted sleep disturbance criteria and in accordance with the relevant Australian Standards;

1. protect all dwelling occupants from external noise sources associated with vehicular traffic and trams on Smith Street; and

1. the mechanical plant equipment and ventilation mechanisms installed or constructed as part of the development.

1. Prior to the occupation of the development hereby permitted, a landscape plan prepared by a suitably qualified and experienced person or firm must be submitted to and approved by the Responsible Authority. The landscape plan(s) must be generally in accordance with Condition 1 of this permit and detail:

1. details of any necessary site preparation; 2. a detailed planting schedule, including specific planting locations, species, quantity, densities and height at planting; and

1. future maintenance program for all landscaping, including watering.
2. All landscaping works must be carried out in accordance with the endorsed landscaping plan(s) prior to the occupation of the development and thereafter maintained to the satisfaction of the Responsible Authority.

1. Before any of the development is occupied, a Traffic Management Plan prepared by an appropriately qualified traffic consultant to the satisfaction of the Responsible Authority, must be submitted to and approved by the Responsible Authority. When approved, the Traffic Management Plan will be endorsed and form part of this permit. The Transport Management Plan must address the following:

1. The location and operation of the CCTV camera and monitor required by condition 1(o) and details of how it will provide adequate views of the Mater Street footpath east of the site; and
2. Car parking allocation of not more than one car space per dwelling. Two car spaces must be provided to the ground floor retail area. If the retail area is used for two tenancies, then one space must be provided per tenancy.

1. Unless with the prior written consent of the Responsible Authority, no fewer than 40 car parking spaces and 28 bicycle parking spaces must be provided at all times to the satisfaction of the Responsible Authority.
2. Prior to the occupation of any dwelling, car parking must be allocated in accordance with the Traffic Management Plan approved under condition 8.
3. The car stackers must be installed by a suitably qualified expert in accordance with manufacture requirements and specifications.
4. The car stackers must be maintained in a good working order and be permanently available for the parking of vehicles in accordance with their purpose, to the satisfaction of the Responsible Authority.

1. Any road(s), footpath(s) or other infrastructure adjacent to the development that is damaged as a result of the development authorised under this permit including trenching and excavation for utility service connections must be reinstated to the satisfaction of the Responsible Authority and at the cost of the permit holder.
2. Any portions of redundant vehicle crossings must be broken out and removed and reinstated with kerbing and paving to match the surrounding area. The cost of these works must be borne by the permit holder and be undertaken and completed to the satisfaction of the Responsible Authority.

1. Existing footpath, kerb and channel, and road pavement surface levels must not be altered unless with the prior written consent of the Responsible Authority.

1. The amenity of the area must not be detrimentally affected by the use or development, through:

1. the transport of materials, goods or commodities to or from land;
2. the appearance of any buildings, works or materials;

1. the emission of noise, artificial light, vibration, smell, fumes, smoke, vapour, steam, soot, ash, dust, waste water, waste products, grit or oil; or

1. Noise emanating from the development, including plant and other equipment, must comply with the State Environment Protection Policy N-1.
2. Alarms associated with the commercial premises must be directly connected to a security service and must not produce noise beyond the premises.
3. All buildings must be maintained in good order and appearance to the satisfaction of the Responsible Authority.
4. All piping and ducting, other than for drainage above the ground floor storey of the building must be concealed.
5. The development must be provided with external lighting capable of illuminating access to the car parking spaces, pedestrian walkways and the entrance to the new dwellings. Lighting must be located, directed, shielded and of limited intensity so that no nuisance or loss of amenity is caused to any person within and beyond the site, to the satisfaction of the Responsible Authority.

1. Prior to the occupation of the development, a Waste Management Plan generally in accordance with the plan prepared by Wastetech Service (dated 2 August 2011) must be submitted to the satisfaction of the Responsible Authority. Once to Council's satisfaction, the Waste Management Plan will then be endorsed and will form part of this permit.
2. All waste and recycling must be collected in accordance with the approved Waste Management Plan required by condition 22 to the satisfaction of the Responsible Authority. All waste collection and recycling collection must be undertaken between the hours specified in Council's Local Law No. 3.

1. Before the development starts, 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 then form part of the permit. The plan must include the following:

1. A pre-conditions survey (dilapidation report) of the subject site and all adjacent Council road frontages and nearby road infrastructure;
2. Protection works necessary to road and other infrastructure (limited to an area reasonably proximate to the site);

1. Remediation of any damage to road and other infrastructure (limited to an area reasonably proximate to the site);

1. Containment of dust, dirt and mud within the site and method and frequency of clean up procedures in the event of build up of matter outside the site;
2. On-site facilities for vehicle washing;
3. Methods for management of noise and general nuisance;
4. Site security;
5. Waste and stormwater treatment;
6. Construction program;
7. Preferred arrangements for trucks delivering to the site (note must be taken of the height restrictions associated with the railway overpass;
8. Size of servicing trucks delivering to the site;

1. Delivery and unloading points and expected frequency;
2. An outline of requests to occupy public footpaths or roads, or anticipated disruptions to local services;
3. An emergency contact that is available for 24 hours each day for residents and the Responsible Authority in the event of relevant queries or problems experienced; and
4. Traffic management measures to comply with the relevant provisions of AS 1742.3-2002 Manual of uniform traffic control devices - Part 3: Traffic control devices for works on roads.

1. During construction, the following must occur to the satisfaction of the Responsible Authority:

1. Any stormwater discharged into the stormwater drainage system to comply with EPA guidelines; 2. Stormwater drainage system protection measures must be installed as required to ensure that no solid waste, sediment, sand, soil, clay or stones from the premises enters the stormwater drainage system;

1. Vehicle borne material must not accumulate on the roads abutting the site;

1. The cleaning of machinery and equipment must take place on site and not on adjacent footpaths or roads; 2. All litter (including items such as cement bags, food packaging and plastic strapping) must be disposed of responsibly; 3. All site operations must comply with the EPA Publication TG302/92; and 4. The permit holder must ensure that at all times, all construction workers and associated development staff are aware of condition 45.

1. The development, once commenced, must be completed to the satisfaction of the Responsible Authority.
2. Except with the written consent of the Responsible Authority, demolition or construction works must only be carried out between: 7 am - 6 pm, Monday-Friday (excluding public holidays) and 9 am - 3 pm, Saturday and public holidays. No work is to be carried out on Sundays, ANZAC Day, Christmas Day or Good Friday without a specific permit. All site operations must comply with the relevant Environmental Protection Authority's Guidelines on Construction and Demolition Noise.

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

1. No polluted and / or sediment laden runoff is to be discharged directly or indirectly into Melbourne Water's drains or watercourses.
2. Finished floor levels for the ground floor area including all retail areas, storage areas and lobby area must be a minimum of 300mm above the applicable flood level. If the lift is located below the 300mm applicable flood level, then details must be submitted to the satisfaction of Melbourne Water identifying the way in which the lift will be protected in a flood event. Details should include cut out mechanisms, alarms, lift default position and inspection and maintenance regimes of the lift.
3. Finished floor levels of the ground floor parking including car stacker area, bike parking area and refuse area must be constructed 150mm above the applicable flood level.

1. This permit will expire if any of the following occur:

1. The development is not commenced within two (2) years from the date of this permit;
2. The development is not completed within four (4) years from the date of this permit;

1. The dwelling use is not commenced within four (4) years from the date of this permit.

The Responsible Authority may approve extensions to these time limits if requests are made before the permit expires or within 3 months afterwards.

[1] Design and Development Overlay - Schedule 13

[2] DD Planning v Yarra CC [2011] VCAT 889

[3] See further comments below at paragraph 31

[4] The conditions relate to matters raised by Melbourne Water in response to its referral of the application under the provisions of the Special Building Overlay. This overlay exempts third parties from notice and review. Relevant parties to this issue are therefore only the permit applicant, Council and Melbourne Water.