1. Pursuant to section 60 of the Victorian Civil and Administrative Act 1998, the following person is joined as a party to the proceeding:

1. The decision of the responsible authority in relation to permit application no. PLN11/0518 is set aside.
2. In accordance with section 85(1)(b)(ii) of the Planning and Environment Act 1987, a permit is granted in relation to land at 97-99 Rose Street. The permit will allow partial demolition of the existing building and the construction of a four storey mixed use building plus roof top garden and service area, sale and consumption of liquor (in association with a restaurant and café licence) and waiver of car parking and loading bay requirements.
3. The permit is subject to the conditions contained in the Appendix to these reasons.

Mr Dominic Scally, solicitor of Best Hooper Solicitors. He called evidence from Mr Andrew Biacsi, town planner of Contour Consultants; Mr Mark Sheppard, urban designer of David Lock and Associates; Mr Peter Barrett, architectural historian and heritage consultant; Mr Steven Hunt, traffic consultant of Cardno and Ms Samantha Slicer, visual amenity consultant of Food Slicer.

Mr Andrew Walker, barrister, Mr Paul O'Shea, town planner of CS Town Planning Services.

Dr Donald Edgar, Ms Jill Singer, Mr Craig Cain, Ms Josephine Lee, Mr Lynden Kenyon and Mr Paul Richards, all in person.

Part demolition and alteration to an existing brick warehouse to accommodate a six storey mixed use building containing a restaurant on the ground and first floor, twelve apartments behind and above and a roof top deck area.

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

Business 1 Zone, Heritage Overlay (Schedule HO334), Environmental Audit Overlay.

Clauses 34.01-4 (buildings and works), 43.01-1 (buildings and works in a heritage area).

Clauses 10.04, 11.01,11.02, 11.04, 13.04, 15.01, 15.02, 15.03, 16.01, 17.01, 18.01, 18.02, 21.04, 21.05, 21.06, 21.07, 21.08, 22.02, 22.05, 22.07, 22.09 and 65.

The subject site is a single rectangular title, with an area of 291 square metres, located on the north side of Rose Street, 25 metres east of Brunswick Street. The site has an approximate frontage of 12.5 metres and a depth of 23.3 metres. There is a right of way along the eastern side of the site that extends from Rose Street, north to Leicester Street. A second right of way is located on the western side of the site, extending from Rose Street to the rear of 382 Brunswick Street, which is mid-way along the western boundary of the subject site.

The site is occupied by a single storey brick warehouse, constructed to the Rose Street frontage and both side boundaries. The building is set back 4.2 metres from the rear (northern) boundary.

There is a four storey residential apartment building to the east across the right of way, single storey dwellings on the south side of Rose Street and one and two storey retail premises (predominantly restaurants) along Brunswick Street to the west. To the north, the rear of the subject site abuts a brick garage and service area for 384 Brunswick Street.

19 and 30 January 2013. I inspected the site and surrounding streets and entered residential premises at 3/103 Rose Street and 100 Leicester Street in the company of the respective owners.

Mohr Nominees Pty Ltd v Yarra CC [2012] VCAT 1916.

Common Equity Housing Ltd v Yarra CC & Ors [2009] VCAT 1722.

Menico Pty Ltd v Yarra CC [2012] VCAT 1334.

Orangechapel Pty Ltd v Director of Liquor Licensing (Occupational and Business Regulation) [2010] VCAT 110.

Orangechapel Pty Ltd v Stonnington CC [2009] VCAT 229.

Cremorne Corporation Pty Ltd v Yarra CC [2008] VCAT 1202.

Martin Stuart Pty Ltd v Port Phillip CC [2000] VCAT 887.

Bede Pty Ltd v Yarra CC [2000] VCAT 792.

1. This proceeding concerns a refusal by the Yarra City Council for the partial demolition of an existing former warehouse to accommodate a six storey building containing a restaurant and twelve residential apartments. The application also seeks a waiver of on-site parking and a loading bay. It is a decision the applicant for the proposal has requested be reviewed by the Tribunal. Separate applications for review are made by Craig Cain, Donald and Patricia Edgar, Paul Richards, Jill Singer and others in support for the Council decision.
2. Council's refusal refers to the excessive height of the proposed development in a heritage precinct, a poor design response in terms of scale, height and massing and detrimental amenity impacts on adjoining dwellings.
3. The objectors have similar concerns, particularly with respect to overshadowing, the potential for noise from the restaurant, increased demand for parking and provision for loading.
4. The applicant considers the proposal is appropriate for the site and zone and has suggested modifications to the design to address some of the amenity concerns.

1. The building design prepared by Breathe Architecture converts an existing warehouse building into a restaurant, with a contemporary multi-level building comprising residential apartments above. To quote from Mr Sheppard's evidence:

...retention of the shell of the existing building at the lower level retains the existing condition and built form character at street level, with upper levels set back and distinguished from the existing building by a contemporary architectural treatment.

1. The ground floor contains a 55 seat restaurant and bar area, with a shared entrance to the residential foyer and provision for 22 bicycles within the ground floor reception area. Mr Biasci's apt description of the proposed foyer is one of 'shared informality'.
2. The entrance foyer gives access to a further 45 seat restaurant on the first floor, with an adjoining terrace area at the front of the building, seating 15 people. At the rear of the first floor are two apartments in a studio and single bedroom configuration.
3. The second floor contains three studio and one single bedroom apartments, a pattern that is repeated on the third floor. On the fourth floor, there are two apartments, each with two bedrooms, above which is a roof terrace comprising a service area, communal laundry and two open decks defined by perimeter garden beds. All levels of the proposed building are served by stairs and an elevator.
4. The design response incorporates passive cross flow ventilation, hydronic heating, insulated internal and external walls. The design response states:

All rainfall collected on site will be stored in water tanks plumbed into roof garden taps, wc and washing machines. Solar water collection panels and a photovoltaic array is to be installed on the roof oriented north, providing hot water to all apartments and significantly reducing energy costs of the building.

1. A distinctive feature of the proposed building design is the use of 'class 1 native timbers' for the external cladding and decking and stainless steel fittings.

1. The location of the site in the Business 1 Zone, with close access to busy Brunswick Street, creates a high probability of substantial commercial redevelopment. The site also has immediate proximity to dwellings in the Residential 1 Zone to the south and apartments and dwellings in the Mixed Use Zone to the east, in Rose and Leicester Streets.
2. The planning scheme contains an Interface Uses Policy at clause 22.05, a reflection of the complexity of the urban landscape within the municipality of Yarra. The policy basis recognises that:

While the mix of land use creates a diverse and interesting inner city character, it may also create conflict at the interface between land uses.

1. The policy seeks to strike a balance between the reality of commercial activity and reasonable residential amenity. This is particularly apposite for the subject site, being at the interface between the Brunswick Street business precinct and residential use. Development of an interface site must have regard to the surrounding residential uses, and in the case of the proposed development, the residential use of the site itself. Both the design and operation of the non-residential components should respond to this sensitivity.
2. At the hearing, the parties referred me to an encyclopaedia of Tribunal decisions and directed my attention to a number of contemporary residential buildings close to the subject site within the South Fitzroy heritage area. During my inspection, I took the time to view a number of these recent buildings in the context of the location and design of the proposed development.
3. The Yarra Planning Scheme provides encouragement for activity centre growth, set against complex and sometimes conflicting policies for heritage protection and interface amenity. The subject site is central to this policy 'web'. In my assessment, the issues to be determined in this proceeding are:
   • Are the proposed uses appropriate in the Business 1 Zone at the location of the subject site?
   • Will the proposed development adversely affect the significance of the heritage place at HO334 (South Fitzroy Precinct)?
   • Will the proposed development cause an unacceptable loss of amenity for surrounding residents?
4. The Tribunal must decide whether a permit should be granted and, if so, what conditions should be applied. Having considered all submissions and evidence presented with regard to the applicable policies and provisions of the Yarra Planning Scheme, I have decided to grant a permit. My reasons follow.

Are the proposed uses appropriate in the Business 1 Zone at the location of the subject site?

1. The Business 1 Zone attends closely to the properties along Brunswick Street, reflecting the lineal distribution of retail business along both sides of the street. The zone generally extends over properties with frontage to Brunswick Street, with only a few properties in the 500 metres between Alexandra Parade and Johnston Street, including the subject site, facing a side street. The subject site at 97-99 Rose Street is central to this retail strip and visible on an oblique line of sight from Brunswick Street.
2. The subject site is part of the Brunswick Street Fitzroy Major Activity Centre, a fact both Mr Sheppard and Mr Biacsi highlight in their evidence. The land use strategy for activity centres at clause 21.04-2 notes:

The activity centres are almost all centred around elongated commercial strips stretched out along Yarra's main roads and feeder roads. Abutting uses along the length of the strips are generally residential, creating interface conflicts where some uses are not well managed or inappropriate uses are permitted.

1. The Neighbourhoods policy at clause 21.08-7 recognises that Brunswick Street has attained a metropolitan focus for entertainment, restaurant and shopping activity. The strip is highly active both day and night and a location where change is encouraged and expected.
2. In this regard, I agree with Mr Scally that there is a strong alignment between State and local planning policy in support of Yarra's activity centres.
3. However, as with many inner city activity centres, there is a web of policies against which change must be assessed to achieve an appropriate outcome. For example, the urban design policy for built form at clause 21.05-2 refers to the 'low rise urban form' that characterises this part of Brunswick Street:

Activity centres being generally Victorian and Edwardian in origin, are generally two storeys, with some higher signature buildings.

This characteristic is important as it helps to differentiate Yarra from the urban form of adjoining cities, particularly the City of Melbourne, thus strengthening its sense of place.

1. At the hearing, Mr Scally put to me that strategic support for up to 5-6 storeys in activity centres is 'unambiguous' and that only buildings higher than this need demonstrate 'significant upper level setbacks.'
2. The proposed design has clearly responded to this interpretation. The building rises five levels at a uniform setback above the existing warehouse, with the sixth level containing the service area and lift well, recessed behind the north and south roof terraces. At the front, the building is setback approximately three metres above the first level terrace, but with minimal setbacks from the side and rear boundaries (perhaps not unexpected, given the restricted 12.495 metre width of the site).
3. The proposed building therefore makes a strong visual statement with little deference to the issues of residential interface and heritage. In this regard, Mr Walker's criticism that:

The permit applicant is simply seeking to cram too much onto a relatively small infill site..(and).. fails to respect the existing and preferred built form of the heritage precinct and surrounding residential area.

1. I find there is much to admire in this proposal; innovative architecture, retention of a 1930 contributory heritage structure, a new restaurant and an approach to residential occupation with practical alternatives to car ownership. I find the proposed restaurant, bar and residential are all uses appropriate to the Business 1 Zone in this location, however, I consider, the design response to the heritage precinct and the interface with adjoining residential use is inadequate. This deficiency is addressed later in my reasons.

Will the proposed development adversely affect the significance of the heritage place at HO334 (South Fitzroy Precinct)?

1. 97-99 Rose Street is within the South Fitzroy (HO334) heritage precinct and abuts the heritage precinct along Brunswick Street (HO311) to the east. When assessed in the context of the strategic objectives at clauses 21.05-1 (Heritage) and 22.02-4 (Objectives for development in a heritage place) the proposed development will have an influence on both precincts.
2. In case of clause 21.05-1, the pertinent strategies are:

Strategy 14.3 - Protect the heritage skyline of heritage places.

Strategy 14.6 - Protect buildings, streetscapes and precincts of heritage significance from the visual intrusion of built form both within places and from adjoining areas.

To preserve the scale and pattern of streetscapes in heritage places.

1. There is no issue between the parties that incorporation of the proposed development into the existing structure is welcome. The concern of Council and the objectors is the form and six level height of the proposed building.

1. The statement of significance for the Brunswick Street precinct refers to continuous rows of one, two and sometimes three storey Victorian and Edwardian era shops and residences 'typically parapeted in form with concealed pitched roofs and some use of corner motifs.' In essence, Brunswick Street is an intact Victorian streetscape, particularly the section from Alexandra Parade south to Johnston Street.
2. The buildings at 378 and 380 Brunswick Street, located to the east of the subject site, are typical of the scale of buildings along this street. To borrow Mr Barrett's description:

The Vegie Bar (at 378) is a two storey brick Edwardian commercial building at the northeast corner of Brunswick and Rose Streets. The lower portion of its Rose Street elevation has a painted mural. The Vegie Bar also occupies an single storey inter-war brick shop (at 380) further north along Brunswick Street.

1. Juxtaposed with this heritage significance is the designation of Brunswick Street as a major activity centre, defined as a lineal strip on either side of the street, and largely coincident with HO311.
2. The urban design strategy for built form at clause 21.05-2 refers to a general expectation of development no higher than 5-6 storeys. If Mr Sheppard's view that this height can therefore be expected 'right along this Brunswick Street MAC' is correct, then clearly heritage and activity centre policies are on a collision course. The 'conflict', however, is not that stark. As noted earlier in my reasons, the urban design policy recognises the two storey form of activity centres as an important characteristic to;

differentiate Yarra from the urban form of adjoining cities.

1. This view gains further clarity at clause 21.04-2, where reference is made to some activity centres having;

discontinuities in their retail or service frontages and there may be existing built stock and land parcels which are underutilised.

This signals a more measured approach, acknowledging that locations for new and higher development can frame and compliment rather than appropriate the low rise urban form of Yarra's activity centre locations. I cannot therefore accept Mr Sheppard's contention at the hearing that Yarra's activity centre policy expects 5-6 storeys 'right along this Brunswick Street MAC.'

1. The proposal for the subject site is effectively a six level structure, albeit with the top level partially open with landscaped roof gardens. The building will be visible within Brunswick Street and from oblique views from Brunswick Street along Rose Street. Can this be reconciled with the strategy mentioned earlier to 'protect the heritage skyline of heritage places'?
2. During my walk along Brunswick Street between Alexandra Parade and Johnston Street, I noted there are no higher buildings visible behind buildings along Brunswick Street. However, multi-level residential buildings, generally between three and six storeys, can be seen in view lines down intersecting side streets. There are also long views of higher buildings in Brunswick Street, south of Johnston Street.
3. The proposed building will clearly have no physical effect on the heritage skyline of Brunswick Street, being set behind the frontage properties. It is equally clear, however, that the building will have a prominent visual presence. Mr Barrett's description provides a good impression:

The proposed building has a cubic massing, and is expressed in a contemporary styling. The cubic form of the building is relieved by projecting and recessed elements, and an open stairwell on the east elevation. The design adopts a Post Modern approach in that it references the site's industrial heritage in its retention of parts of the existing factory building. The design also has aspects of eco-friendly design in its re-use of materials salvaged from the existing building on the site, and the incorporation of vertical gardens and other landscaping elements.[2]

1. Although there is no accurate representation of the view of the proposed building from directly opposite 378-380 Brunswick Street, the applicant provided indicative views from points in Brunswick Street; south of Rose Street and north of Leicester Street. In both instances, the building is shown a visible above Victorian double storey buildings (that read as three storeys) from an estimated distance of 80-100 metres. On this basis, the proposed building will be highly visible sitting directly behind the single and double storey buildings at 378-380 Brunswick Street.
2. Mr Barrett considers the height of the proposal is part of Fitzroy's diversity:

In terms of the proposed works, much of the criticism of the proposal stems from the height of the new building. Council's heritage advisor has expressed a concern that this new building will be highly visible from Brunswick Street, and from along Rose Street. Although the proposed building will be visible from some parts of these streets, when passively observed it will be interpreted as one of a mix of elements, of varying scale' that make up the diverse built form of this part of Fitzroy, rather than being an incongruous or visually intrusive element.[3]

1. I have some difficulty accepting this statement. In my view, this building will attract active, rather than passive viewing. It will be an eye opener. I say this in a positive sense, as I expect the proposed design will make an interesting and relevant contribution to contemporary architecture in Fitzroy.
2. Although the proposed development will be the first example, the prospect of new development behind the buildings fronting Brunswick Street is strong, given the status of the area as a MAC. In this context, Mr Biacsi considers visibility behind Brunswick Street is acceptable. However, the heritage significance of the Brunswick Street precinct is a primary concern in this matter and on heritage grounds, I consider the height is excessive. I agree with Ms Riddett's advice to Council that;

the two top floors and rooftop elements of the proposed new building will be highly visible from Brunswick Street (from the north looking diagonally south the subject site and in views to the east along Rose Street) where it will overwhelm the view of the shop at 378 Brunswick Street.

1. At the hearing, discussion with Mr Barrett led by Mr Scally suggested that future redevelopment of the land at the rear of 378-380 Brunswick Street will ameliorate the visibility of the proposed building if, for example, the rear of 380 Brunswick Street were to be developed up to four storeys. Under cross examination from Mr Walker, Mr Barrett agreed that this is difficult to assess without a proposal. In further questioning from Ms Thomas, Mr Barrett agreed that the two storey form of the corner building at 378 Brunswick Street is likely 'to exist into the future', given that it is an individually significant building.
2. If constructed in its proposed form, the proposed building will become part of the streetscape of Brunswick Street. However, in reaching my conclusion on the effect of the proposal within the Brunswick Street precinct, my finding is not one of visibility, but prominence in the streetscape. I consider it appropriate that the proposed building invokes curiosity by being noticeable rather than dominant.
3. Therefore, in the context of the built form of Brunswick Street recognised in HO311, I find the height of the proposed building will detract from the significance (and indeed the appreciation) of Brunswick Street as an intact Victorian commercial streetscape.

1. In Rose Street, the buildings adjacent to the subject site consist of a four storey residential apartment building across the laneway in the Mixed Use Zone to the east and single storey dwellings in the Residential 1 Zone to the south. The four storey building at 103-111 Rose Street contains three levels within a former industrial building and a fourth recessed level. This building is designated as not-contributory in the City of Yarra Heritage Data Base. The single storey Victorian dwellings at 98-102 Rose Street are designated as contributory, as is the former factory building on the subject site.
2. The design for the proposed building shows a height of 21.35 metres to the top of the lift overrun and a height of 17.10 metres to the top of the fifth storey. The adjacent four storey building is at a height of 12.05 metres, with the top level recessed approximately 4.4 metres.
3. At the front of the proposed building, the upper levels are set back approximately 3 metres behind the existing front façade for the full height of the building.
4. The relatively narrow 12.495 metre width of the subject site allows limited scope to step down the development, such has occurred at most other larger sites in the mixed use or residential zones. This site is in the Business 1 Zone, providing scope for a more robust building form, however, as discussed later in my reasons, this does not obviate the need to address interface amenity issues affecting adjacent residential uses.
5. A strong design element of the proposed design is a common use landscaped roof top garden comprising:
   • A 76.5 square metre summer deck facing south.
   • A 53.5 winter deck facing north.
   • A communal laundry and toilet.
   • A 20 square metre service area consisting of a fire system storage tank and ventilation system.
   • A lift overrun and stair well.
   • Continuous perimeter planting beds.
   • An array of recessed solar PV and hot water panels.
6. The design indicates that the roof top area will be a dominant feature of the building, complimenting the timber external finish and softening the building form. As such, I consider this to be a positive feature of the design, mitigating the lack of upper level recession.
7. At the hearing, my attention was drawn to a number of Tribunal decisions in the Fitzroy area concerning the reuse of industrial buildings for residential purposes or the development of large new buildings. I have inspected these sites and observed some impressive architectural responses to the development of contemporary housing in a heritage precinct.
8. Respect for the existing heritage fabric is addressed in various ways, depending on the circumstances of particular sites and areas. I noted that most new multilevel apartment buildings in the residential and mixed use zone are on large sites, or developed within large existing industrial buildings, generally abutting more than one street. I noted three basic design techniques to handle the interface between contemporary and older built form;
   • progressive stepping down of form toward the heritage interface,
   • retention of the existing interface between former industrial and existing residential use (e.g. 'containing' residential apartments within a former warehouse building such as at 103-111 Rose Street) and
   • creating a distinctive contrast between contemporary form and existing buildings (i.e. framing).
9. A recent Tribunal decision concerning approval of a mixed use development at 160-164 Argyle Street Fitzroy (Menico Pty Ltd v Yarra CC) struck a particular chord in relation to contrasting built form:

Mr Holdsworth argues that the massing of the building, the height of the building in particular, is unacceptable because of the relationship of the site to the modest single storey Victorian cottages on the north side of Argyle Street.

We do not accept this assessment and believe it relies on an unfounded idea that the design response should be more closely responsive to the status quo in this segment of Argyle Street between Napier and George Street. In our view this disregards the quite recently emerging strategic context, and the both recent and historic physical context of the neighbourhood in which taller buildings are sharply contrasted with modest cottages.[4]

1. While the built and approved examples of residential and mixed use development in the 'hinterland' of Brunswick Street are instructive, the subject site is different. This site has a relatively small area (291 square metres) in a Business 1 Zone, where policy indicates at least four levels is appropriate and indeed encouraged. This has resulted in a building in sharp contrast to its surrounds, with little scope to apply the principles of 'transitional management' evident on larger sites.
2. This proposed building is designed to 'stand out'- not an unreasonable objective in the Business 1 Zone. Heritage policy however, requires the proposal to be assessed for 'visual intrusion' and the effect on the scale and pattern of the streetscape. While the proposed building will provide a mixed use transition between residential and commercial use, I find the height of the proposed design fails to achieve an acceptable relationship with the adjacent residential buildings. As with the heritage consideration in Brunswick Street, I find lowering the building by one level is appropriate to lessen visual intrusion, while allowing the distinctive form of the building to be retained.

Will the proposed development cause an unacceptable loss of amenity for surrounding residents?

1. The issues of amenity contained in the submission and raised at the hearing concern overshadowing, overlooking, noise, traffic and parking, loading and waste management.
2. These amenity issues commonly accompany the running of a restaurant in close proximity to dwellings and apartments. The Council submission directs me to a relatively early Tribunal decision that addresses the fundamentals of this relationship. I consider the Tribunal's comment in Martin Stuart Pty Ltd v Port Phillip CC is relevant to this proceeding:

We accept Mr Borelli's observation that residents, even of a heritage building, near an entertainment strip such as Fitzroy Street and adjacent to a Business 1 Zone, must accept a compromised residential environment; but the other side of that coin must lead to the rejection of Mr Swanson's view that a developer on the other side of the interface was obliged to make no compromises. The owners and occupiers of allotments at such zone interfaces must both make compromises. The occupier of the residential allotment must accept a lower residential amenity. The occupier of the business zone allotment must accept a possible requirement that the height and intensity of development that may be appropriate elsewhere in the zone be softened or scaled down at the boundary.[5]

1. In my view, the Tribunal's reference to the need for compromise can be widened to operational issues as well as built form.

1. The proposed design will extend shadows at the equinox marginally, at various times, into the front garden areas of the dwellings along the south side of Rose Street. Given that the shadow effect for the proposed design is not severe, lowering the proposed building height by three metres will clearly diminish the effect of overshadowing on this properties.
2. The effect of overshadowing is more severe for west facing apartments at 103-111 Rose Street. Apartments 3 and 11, respectively on the first and second floors, face the laneway and are opposite the subject site. Apartments 2 and 10 also have west facing windows, however, their main living areas face south.
3. Apartments 3 and 11 each have a bedroom and the balconies to their living areas facing west, separated from the proposed building across the laneway by 3.4 metres at the first floor and approximately 4.2 metres at the second floor. The first floor separation reflects the distance to the wall of the existing warehouse, which is proposed to be retained. Currently, these apartments receive sunlight during the latter half of the day. The shadow diagrams indicate that this sunlight will be blocked by the proposed development from 1.30 pm, primarily affecting apartments 2, 3, 10 and 11. Reducing the height of the proposed building by 3 metres will have little effect on the degree of overshadowing.
4. Mr Sheppard in his evidence considers the degree of overshadowing is acceptable, perhaps inevitable, in the context of the location of the subject site in the Business 1 Zone. Council is of the view that the degree of overshadowing would be acceptable if these adjoining apartments received 'reasonable solar access in the morning.'
5. It is unfortunate that the design of 103-11 Rose Street includes two apartments reliant on a western aspect and others that face south. This design approach is curious, given the clear prospect that the subject site is ready for change. As I have mentioned earlier, the redevelopment of this site to at least four storeys with limited scope for side boundary setbacks is not unexpected and must (or should) have been a consideration in the design of 103-111 Rose Street.
6. Meeting the concerns of the occupants of apartments 3 and 11 will require a much lower building on the subject site; an unlikely outcome in view of the major activity centre policies applicable to this site.
7. Given the Business 1 Zone location of the proposed building, I find it inevitable that in this location, the amount of sunlight reaching the west facing apartments at 103-11 Rose Street will be substantially reduced. The reduced height of the building will ameliorate the loss to a degree, a matter that can be precisely calculated on the endorsed plans.

1. The potential for overlooking from the proposed development occurs from the first floor front terrace, the apartment balconies facing north and south, from the east facing stair well and from the roof top gardens.
2. The first floor terrace attached to the restaurant sits behind the existing façade, separated from the façade by a 1 metre wide plant box extending across the front of the building. Behind this vegetation are screens to a height of 1.7 metres defining the terrace area.
3. The north facing balconies for the apartments above the restaurant are recessed into the building and have plant boxes installed behind the balustrades. The horizontal distance between these balconies and the frontage of the residential properties to the south is approximately 13 metres.
4. I consider the design of the first floor terrace and the apartment balconies above in relation to overlooking to the north is acceptable.
5. To the south, the residents at 100 Leicester Street are concerned that overlooking will occur into their rear garden from the north facing balconies. I estimate the oblique sight line distance from these balconies to the habitable room windows of the dwelling at 100 Leicester Street to be more than 20 metres. I also note the balconies are recessed into the building, with extended wing walls restricting a direct line of sight to properties to the east, including 100 Leicester Street. Accordingly, I consider the design of the apartment balconies in relation to overlooking to the north is acceptable. The reduced height will also reduce the visual bulk of this building, which is a further matter of concern for the residents at 100 Leicester Street.
6. The issue of overlooking to the east has three elements;
   • from the open stairwell that rises through the centre of the building on the eastern façade;
   • the east facing windows and balconies in apartments 3.02 and 4.02 and
   • overlooking from the roof top decks.
7. The design for the stairs shows metal screening set in a regular pattern that follows the angle of the stairs, creating a continuous screen to a height of 1.7 metres. Attached to the screen is a trellis to support foliage. The performance of the screen to prevent overlooking is not reliant on the vegetation. I note that Council's draft conditions includes the requirement that:

The proposed foliage over wire screening (be) replaced with either solid battens or opaque glass of no more than 25% permeability, to a height of 1.7m above finished floor level.

1. I suggest this condition fails to appreciate the design of the screening device integrated with the stair well. I do not consider further or replacement screening is required.
2. I note also a draft condition requiring windows and balconies on the eastern façade to be screened. I support the intent of this condition and agree with Mr Scally that this can be achieved through the application of standard B22 of ResCode.
3. The roof top decks are defined by a 1.2 metre high screen set back approximately 1 metre from the edge of the building. In front of this screen is a plant bed 300mm high with a further perimeter balustrade 1.5 metres high at the edge of the building. The space between the internal and external screens prevents a downward view from the deck. The edge of the building will be softened by a continuous bed of plants, which will also increase the screening effect. I consider that these design elements will provide adequate protection from overlooking, the detail of which is contained in the conditions.

1. The primary noise concerns relate firstly to the effect of noise on surrounding residents from the operation of the restaurant and bar, particularly the terrace area on the first floor. Secondly, the effect of noise on the proposed apartments from both the restaurant and the 'Bimbo Bar' diagonally opposite the subject site on the south east corner of Rose and Brunswick Streets. Consideration of these potential noise sources brings into play the Interface Uses policy at clause 22.05, reinforced by a Noise and Amenity Action Plan provided by the applicant. This, among other things, addresses the noise attenuation measures necessary to protect internal amenity.
2. The issue of noise generated by waste collection is discussed later in my reasons.
3. The application proposal sought approval for the sale of liquor from 7 am until midnight, seven days per week. While these hours are generally acceptable in a Business 1 Zone, they are unacceptable in the context of surrounding residential use. Council's Licensed premises policy at clause 22.09-3.3 requires that:

Licensed premises in a Residential or Mixed Use Zone or within 30 metres of a residential area not trade beyond 11 pm on any night unless the responsible authority is satisfied that the use will not adversely affect the amenity of the area.

Council's draft permit conditions alter the proposed closing hour accordingly.

1. Mr Walker, in his submission on behalf of the residents on the south side of Rose Street, expressed concern at the effect on amenity of the operation of the terrace area late at night. I heard submissions from residents that the proximity of the Bimbo Bar already detracts from the amenity of the residential area to the east. Council clearly shares this concern and has proposed the terrace be restricted to the hours of 7 am to 8 pm each day. The applicant considers 7 am to 10 pm is appropriate.
2. I agree that a restriction of hours is appropriate, but note that the capacity of the terrace is restricted to 15 sit down patrons. This is a relatively modest outdoor area of approximately 20 square metres and taking into consideration the business zoning, the proximity to Brunswick Street and the extent of light during daylight saving, I consider a compromise is appropriate. I have therefore altered the terrace hours to 7 am to 9 pm in the conditions and will require corresponding changes to the Noise and Amenity Action Plan.

1. There are no on-site parking or loading facilities proposed for the development. Council is basically in agreement with the traffic recommendations submitted in the Traffic and Transport Assessment by Cardo Grogan Richards. Council has concluded that providing on-site parking and loading facilities 'will in fact increase detriment to the surrounding local road network'..
2. Given the excellent public transport available in Brunswick Street, I have sympathy for this approach and agree that it is appropriate in this instance to waive on-site parking. In reaching this decision, I note the following arrangements that form part of the development proposal:
   • Provision of 22 bicycle spaces.
   • Flexicar Share membership to be used by occupants.
   • Annual Myki Cards provided to occupants.
3. Concerning patron parking, I accept Mr Hunt's evidence that parking demand is likely to be greater in the evening than during the day, and that the local street parking experiences a high turnover. Of further relevance is the recent approval of a commercial car park for 104 cars on two levels approved in Rose Street on the western side of Brunswick Street. This facility will be within 100 metres of the subject site and make a contribution to alleviating parking demand.
4. In essence however, the Brunswick Street major activity centre is not an area that should or indeed needs to encourage cars. In this context, I consider the waiver of parking for proposed development will make a positive contribution to vitality of this area.

1. During my inspections, I noted that waste management, deliveries and loading are currently somewhat of a 'free for all' in one way Rose Street. The frustration of local residents at the timing of deliveries and the incidence of trucks clearly too large for the street also came through in the objectors submissions. This existing situation is a product of the current disorganisation at the rear of commercial premises and in the laneways, possibly due to the fact that the subject site is disused and the building is in a poor state of repair.
2. Redevelopment of this site provides an opportunity to introduce some order into delivery and loading regimes. This process can commence with the Council's condition that all delivery and collection of goods occur only between 8 am and 6 pm. Monday to Saturday. In a general sense, I suggest Council has a role to play in managing access and vehicle movement in this area to sustain an acceptable balance between commercial reality and residential amenity.
3. The applicant submitted a waste management plan as part of the original application, stipulating domestic bin collection by Council in Rose Street in the normal manner, with a private contractor handling waste from the restaurant. I note on the plans that restaurant waste is stored in an enclosed area at the north east corner of the property, adjacent to the laneway. The waste management plan requires that bins only be removed and returned at the time of collection.
4. I consider the arrangements for waster storage and collection and the time frame for delivery and collection are acceptable.

1. Operational issues associated with the proposed use were raised by the parties at various times throughout the hearing. The issues raised are considered in my reasons and reflected in the permit conditions.
2. Specifically, the issues concern:
   • Building height
   • Determining appropriate operating hours to find an acceptable 'interface' balance for the restaurant and adjoining residents.
   • Improving the security for access to the upper residential levels.
   • Addressing the potential for overlooking to the east.
   • Restaurant noise.

1. The proposed development creates an opportunity to reuse an existing industrial building and rejuvenate a site that is clearly showing the signs of neglect. I regard the proposed design as exciting architecture, with its commendable green credentials evident in all aspects of the design.
2. As proposed, I find the building height of five storeys plus roof top decks is too high and dominant to establish a comfortable relationship within the heritage precincts that surround this site. Related to this are the interface considerations for adjacent residents, where again I find the proposed height of the building is visually intrusive.
3. To address these issues, I have required a reduction in height of one storey to reduce the dominance of the structure without loosing the style and mixed use character of this innovative concept.
4. At an operational level, compromises are required to recognise the proximity of the subject site to the adjoining residential and mixed use zones. This is a difficult issue, as the 'buzz' of commercial Brunswick Street (of which the subject site is part) clearly has an impact on adjoining residential streets. In this situation, residents in Rose Street must accept the reality of living close to an established commercial environment.
5. I consider the outcome reflected in the permit conditions strikes a reasonable balance and therefore direct that the decision of the responsible authority be set aside.

Partial demolition of the existing building and the construction of a four storey mixed use building plus roof top garden and service area, sale and consumption of liquor (in association with a restaurant and café licence) and waiver of car parking and loading bay requirements.

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, prepared by Breathe Architecture, Drawings No. A02 (Rev 0), A03 (Rev 1), A04 (Rev 1), A05 (Rev 1), A06 (Rev 0), A07 (Rev 0), A08 (Rev 0), A09 (Rev 1), A10 (Rev 0), A11 (Rev 0), A12 (Rev 1), A13 (Rev 1), A14 (Rev 1), A16 (Rev 1) and A17 (Rev 1), but modified to show:

1. Deletion of one level of apartments to create a four storey building plus a roof top garden and service area with an overall building height of 18.35 metres or less. 2. Wire screening in front of the stairwell shown on plan A13 rev 1 of no more than 25% permeability.

1. Screening treatment to east facing windows and balconies to meet standard B22 of ResCode.

1. The provision of 4 cubic metres of storage per dwelling. 2. A plan notation that the existing on-boundary walls are to be retained. 3. Acoustic works/treatments as required by condition 4 of this permit. 4. The emergency exit door converted to be a side residential entrance to the building. 5. Down lighting of the side entry residential entrance to the building. 6. A sliding door between the restaurant and the foyer (Plan A04 rev1) shown and notated. 7. Courtyard (Plan A04 rev 1) notated "smoking area". 8. Security shutter at the south end of the ground floor restaurant bar noted (Plan A04 rev1).

1. A sliding door on both sides of the lift on level 01 (lobby) to ensure patrons cannot access the foyer and lobby other than to access the restaurant at ground and first floor levels and stairs to be noted on Plan A05 rev 1.

1. Amended roof plan (Plan A09) to clearly show the balustrade at the internal edge of the Winter Deck perimeter planter 1200mm in height above finished floor level. 2. Amended roof plan (Plan A09) to clearly show the screen at the external edge of the Winter Deck perimeter planter 1500mm in height above finished floor level and only extending along the east and north elevation of the building. 3. Amend roof plan (Plan A09) to delete the screen shown at the external edge of the Summer Deck perimeter planter. 4. All services and equipment, including air conditioning units, concealed from the streetscape and adjoining land.
2. All development and use must accord with the endorsed plans. Any alterations must be approved by the Responsible Authority.
3. Prior to occupation of the dwellings, that part of the ROW south of the residential entry on the east side of the building must be repaired by the owner of the land if necessary to ensure a safe surface for pedestrians accessing the residential entry from Rose Street, to the reasonable satisfaction of the Responsible Authority.

1. Before the development starts, amended landscape plans to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the landscape plans will be endorsed and will then form part of the permit. The landscape plans must be drawn to scale with dimensions and three copies must be provided. The landscape plans must be generally in accordance with the application landscape plans, prepared by Land Projects, Drawings LA-1 (Rev B), LA-2 (Rev B), LA-3 (Rev B), LA-4 (Rev B), LA-5 (Rev B), LA-6 (Rev B), but modified to show:

1. Typical planter profile for the balconies, first floor restaurant terrace and roof terrace. 2. Maintenance regime, including frequency of weeding, pruning, fertilising, maintaining irrigation system and replacement planting.

1. External lighting capable of illuminating access to the communal gardens. All 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.

1. Except with the consent of the Responsible Authority, before the plans are endorsed, a report prepared by a suitably qualified and experienced acoustic expert to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. Once approved, the Acoustic Report will then form part of this permit. The Acoustic Report must demonstrate that:

1. Measures to be undertaken to address all noise sources from commercial uses (including Bimbos) affecting the bedrooms of all dwellings on the land having regard to industry accepted sleep disturbance criteria and in accordance with the relevant Australian Standards. 2. Measures to be undertaken to address noise sources from the first floor restaurant terrace all bedrooms within the development and nearby dwellings having regard to industry accepted sleep disturbance criteria and in accordance with the relevant Australian Standards.

1. Any ancillary items (including air conditioner units) will not unreasonably impact the amenity of the proposed dwellings and nearby dwellings in compliance with the relevant State Environment Protection Policy.
2. Any noise attenuation works recommended in the acoustic report must carried out before the use commences or the occupation of the development and thereafter maintained, all to the satisfaction of the Responsible Authority.

1. Before the development starts, an amended Waste Management Plan prepared by a suitably qualified expert to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. Once approved, the Waste Management Plan will then form part of this permit. The Waste Management Plan must generally be in accordance with the Waste Management Plan prepared by Leigh Design Pty Ltd dated 18 May 2011 but subject to the following changes:

Table 2 (Bin Schedule) is amended to 3x 240 litre residential garbage bins.

1. The collection and management of waste must be in accordance with the approved Waste Management Plan to the satisfaction of the Responsible Authority.

1. Prior to completion of the development, the principles / initiatives referenced in the Environmental Sustainable Design (ESD) report prepared by Sustainable Built Environments (SBE), dated 24 June 2011, must be implemented to the satisfaction of the Responsible Authority.

1. Before the occupation of the development, an amended NAAP prepared by a suitably qualified expert to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. Once approved, the NAAP will then form part of this permit. The NAAP must generally be in accordance with the NAAP submitted with the application, dated June 2011, but subject to the following change:

1. The operating hours of the restaurant and the first floor amended to accord with condition 13 and 14. 2. Smoking area limited to ground floor courtyard.

1. Inclusion of internal areas patron management guidelines.
2. The licensed premises must be managed in accordance with the approved Noise and Amenity Action Plan (NAAP) to the satisfaction of the Responsible Authority.

1. Seating must be provided and available for 75% of patrons within the restaurant during operating hours.
2. The sale of liquor for consumption within the internal areas of the restaurant is limited to the following hours:

1. The sale and consumption of alcohol within the first floor terrace associated with the restaurant is limited to the following hours:

14.1 A maximum of 15 patrons permitted on the first floor terrace associated with the restaurant and 15 chairs must be provided for patrons on the terrace during operating hours.

14.2 The first floor terrace associated with the restaurant may not be used by patrons after 9.00 pm daily and the doors to the terrace must be fixed closed after 9.30 pm daily if the restaurant is operating.

1. No more than 100 patrons are permitted in the restaurant at any one time during operating hours.
2. The operating hours of the restaurant are between 7 am and 11.30 pm daily.
3. Only background music may be played within the restaurant at all times.
4. The operator must request patrons, by a prominent notice, to take account of the needs of local residents for peace and quiet during normal sleeping hours to the satisfaction of the Responsible Authority.
5. During operating hours (whether or not liquor is served) in which the business is open to the public, entry must be made freely available to any authorised officer(s) of the responsible authority for the carrying out of any investigations associated with the sale or consumption of alcohol on the site.
6. During all operating hours of the use hereby authorised, there must be present on the site a person above the age of 18 years, who has been authorised by the occupier of the land and that person will be responsible for the good conduct of patrons arriving, using or leaving the land, (For the purposes of this permit, this person is known as "the Manager").
7. The Manager must be qualified in operating in accordance with the policies and guidelines prescribed by Liquor Licensing Victoria.
8. All staff on the premises are to be appropriately trained in the responsible serving of alcohol.

1. Noise levels from the restaurant premises and first floor terrace must not exceed those required to be met under:
   1. (a) the State Environment Protection Policy (Control of Noise Industrial, Commercial and Trade), No. N-1; and
   2. (b) the State Environment Protection Policy (Control of Music Noise from Public Premises) No. N-2.
2. Noise emissions from domestic plant and equipment must be appropriately acoustically baffled or noise attenuated to comply with Section 48 of the Environment Protection Act 1970 and the Environment Protection (Residential Noise) Regulations 2008.
3. Noise emissions from commercial plant and equipment must be appropriately acoustically baffled or noise attenuated to comply with the State Environment Protection Policy (Control of Noise Industrial, Commercial and Trade), No. N-1

1. The amenity of the area must not be detrimentally affected by the use 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;

1. All delivery and collection of goods must be conducted between 8.00 am and 6.00 pm Monday to Saturday.

1. Areas must be provided inside the property line and adjacent to the footpath to accommodate pits and meters. No private pits, valves or meters on Council property will be accepted.
2. All storm water drainage within the property must be provided and be connected to the nearest Council pit of adequate depth and capacity (legal point of discharge), to Council's satisfaction.
3. All piping and ducting, other than for drainage above the ground floor of the building must be concealed.

1. Any damage to road(s) and footpath(s) or other Council infrastructure as a result of the construction of the development must be reinstated to the satisfaction of the Responsible Authority prior to the completion of the development.
2. All new on-boundary walls must be cleaned and finished to the satisfaction of the Responsible Authority.
3. The bluestone laneway must be reconstructed to provide safe pedestrian access to the residential entrance to the building to the satisfaction of the Responsible Authority. The cost of the works must be borne by the permit holder.

1. Before any 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 as evidence of its approval. The plan must provide for or include the following:
   • (a) a pre-conditions survey (dilapidation report) of the subject site and all adjacent Council roads frontages and nearby road infrastructure;
   • (b) protection works necessary to road and other infrastructure (limited to an area reasonably proximate to the site);
   • (c) remediation of any damage to road and other infrastructure (limited to an area reasonably proximate to the site)
   • (d) 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,
   • (e) on site facilities for vehicle washing;
   • (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 that the activities on-site pose including but not limited to: contaminated soil, materials and waste, dust, stormwater contamination from run-off and wash-waters, sediment from the site on roads, washing of concrete trucks and other vehicles and machinery, spillage from refuelling cranes and other vehicles and machinery;
   • (i) construction program ;
   • (j) preferred arrangements for trucks delivering to the site including delivery and unloading points and expected frequency;
   • (k) parking facilities for construction workers;
   • (l) measures to ensure that sub-contractors/tradespersons operate 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; and
   • (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, to the satisfaction of the Responsible Authority. In this regard, consideration (amongst other matters) may be given to:

(i) using lower noise work practice and equipment

(ii) the suitability of the site for the use of an electric crane

(iii) silencing all mechanical plant by the best practical means using current technology; and

(iv) fitting all pneumatic tools operated near a residential area with an effective silencer on their air exhaust port.

1. Except with the written consent of the Responsible Authority, demolition or construction works must only be carried out between: 7.00 am - 6.00 pm, Monday-Friday (excluding public holidays) and 9.00 am - 3.00 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. This permit will expire if any of the following occur:

(a) The development is not commenced within two (2) years from the date of this permit;

(b) The development is not completed 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] I have considered all submissions presented by the parties although I do not recite all of the contents in these reasons.

[2] Barrett P. Heritage issues concerning a proposed mixed-use development at 97-99 Rose Street Fitzroy. Expert Witness Statement prepared for Karanlight Pty. Ltd. 17 December 2012. Page 10.

[4] Menico Pty Ltd v Yarra CC [2012] VCAT 1334. Paragraphs 13 and 14.

[5] Martin Stuart Pty Ltd v Port Phillip CC [2000] VCAT 887. Paragraph 47.