Mr P Chiappi of counsel instructed by Planning & Property Partnership

• Mr R Milner, town planner of 10 Consulting Group; and
• Mr C Goss, architect of Orbit Solutions in regard to prepared shadow diagrams.

Ms E Porter of counsel instructed by Clemenz Evans Ellis solicitors

• Mr C Czarny, urban designer of Hansen Partnership Pty Ltd; and
• Mr S Davies, traffic engineer of GTA Consultants.

The land is located at the southern end of the Fairfield Village neighbourhood activity centre. The land is mid-block, fronts Station Street and has the benefit of laneway access to the north along the rear west section of its northern side boundary. It has a 11.58m frontage, a 40.23m depth and an area of 468sqm. The land is flat and currently used to store construction materials.

The land immediately to the south at 62-64 Station Street is being developed with a four storey building containing 35 dwellings. On its north side, the east and west ends are built to the common boundary with a scalloped setback from the north side boundary in the middle.

Construction of a four storey building containing a front office and rear car park on the ground floor; and five dwellings per level above creating a total of 15 dwellings (12 one bedroom and 3 two bedrooms).

Application under Section 82 of the Planning and Environment Act 1987 - to review the decision to grant a permit.[1]

Application under Section 82B of the Planning and Environment Act 1987 - to review the decision to grant a permit.[2]

Clause 52.06-3 Reduction of residential car parking from 15 to 11 spaces, reduction of residential visitor car parking from 2 to 0 spaces, and reduction of office car parking from 3 to 2 spaces

Buckerfield Architects v Boroondara CC [2004] VCAT 659

Celic v Yarra CC & Ors [2013] VCAT 936

1. Mr Kelly, Ms Di Paolo and others have purchased apartments in a new four storey building under construction at 62-64 Station Street, Fairfield. They are seeking a review of the Council's decision to allow the development of a four storey apartment building on the adjoining property to the north at 66 Station Street, Fairfield.
2. The applications for review lodged by Mr Kelly, Ms Di Paolo and others raise a number of concerns about:
   • The proposed height, mass and bulk not complementing the adjoining and nearby built form;
   • The scale, form and limited setbacks causing unreasonable visual bulk to the dwellings to the south;
   • The significant detriment to solar access amenity, and unreasonable overshadowing and overlooking to private open space and habitable room windows to the south;
   • Inappropriate reduction to the car parking requirement; and
   • Ground level footprint preventing any reasonable opportunity to provide landscaping.
3. The permit applicant submitted on day 2 of the hearing that the dispute had narrowed based on the Applicants' submission and expert evidence to amenity impacts, specifically the effect of overshadowing and visual bulk on ground floor apartments G02 and G03. This characterisation of the case presented by the Applicants for review was not disputed by the Applicants' advocate, Mr Chiappi.
4. Despite the narrowed dispute presented in the hearing, I am cognisant that the applications for review include a number of apartments and raise a range of concerns, not just those presented in the hearing. I am also cognisant that the Applicants for review did not seek to amend their applications in regard to the apartments involved or the concerns raised. I have considered the amenity concerns for the apartments (other than G02 and G03) and find these impacts are acceptable because:
   • Apartments G01 and G08 are primarily west facing and separated from 66 Station Street by apartment G02, so there are no unreasonable amenity impacts due to these two factors;
   • Apartment 102 sits above apartment G02 and is oriented to the west with a solid wall to the north side of its balcony, so there is no direct overlooking and the orientation means it is not unreasonably impacted by visual bulk;
   • Apartment 103 sits above apartment G03. The overshadowing and the visual bulk impact is less than G03 as this apartment is elevated. Nevertheless, there will be further improvements for reasons I will come to when I outline my findings in regard to apartment G03;
   • Apartment 301 is west facing and separated from 66 Station Street by apartment 302 (who is not an Applicant for Review) so there are no unreasonable amenity impacts; and
   • Apartment 304 is east facing with its closest bedroom window and balcony edge set back about 3 metres from 66 Station Street. The third floor of the proposed development has a solid wall along the common boundary, so there is no overlooking and limited overshadowing impact to this apartment due to the separation.
5. In regard to the other concerns raised and the impacts upon apartments G02 and G03, I have decided to issue an interim decision requiring further changes and information having considered the following key issues:
   • The support by planning policy and planning controls for the proposed development;
   • The shadow impact upon apartments G02 and G03 of 62-64 Station Street;
   • The streetscape presentation of the proposal; and
   • The provision and layout of car parking and the car stacker arrangement.

PLANNING POLICY AND PLANNING CONTROL SUPPORT FOR THIS PROPOSAL

1. I agree with the Council's submission that this proposal is supported by and contributes to the purpose of the Commercial 1 Zone, being:

To implement the State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies.

To create vibrant mixed use commercial centres for retail, office, business, entertainment and community uses.

To provide for residential uses at densities complementary to the role and scale of the commercial centre.

1. The dwelling and office land uses are entirely appropriate and acceptable within this building having regard to the location of the land within the Fairfield Village neighbourhood activity centre, the zoning of the land and State and local planning policies that encourage new housing close to activity centres and a range of commercial activities within activity centres.
2. In regard to building height, the parties and Mr Milner focussed upon clause 21.05-2 that supports residential or mixed use developments of four or more storeys on sites that display various characteristics. There was no dispute in the hearing that the list of characteristics is not exhaustive and a site does not need to meet every listed characteristic in order to accord with this policy. In this case, the parties identified that the site meets some of these characteristics. However, Mr Milner's opinion is that the proposed design for this site does not minimise the overshadowing impact, particularly to apartments G02 and G03, which is specified in the following characteristic:
   • Sites of a size, shape, location and orientation where the potential for overshadowing and overlooking of neighbouring residential property is minimised.
3. One of the Commercial 1 Zone decision guidelines also requires consideration of overlooking and overshadowing as it states:

Consideration of the overlooking and overshadowing as a result of building or works affecting adjoining land in a General Residential Zone, Neighbourhood Residential Zone, Residential Growth Zone or Township Zone.

1. In this case 62-64 Station Street (to the south) has a split zoning on an angle so its northern end is in a Commercial 1 Zone and a General Residential Zone. Whilst the Respondent permit applicant made some submissions about this potentially impacting upon the consideration of amenity impacts, the parties all acknowledged the current split zoning is unusual and proposed to be fixed in Amendment C147[4], which seeks to rezone both sides of Station Street between the south end of the Commercial 1 Zone and Heidelberg Road, including the whole of 62-64 Station Street) to the Residential Growth Zone with a Design and Development Overlay. Given this, I find it is appropriate to give consideration to the existing and proposed residential zoning of 62-64 Station Street. The policy support and acceptability of the height of the building is influenced by a consideration of the overlooking and overshadowing.
2. None of the parties took any issue with the potential for overlooking as this can be addressed where necessary with screening to limit overlooking. Mr Milner said there could be translucent screens added to the south side of the balconies for apartments A4, A9 and A14 to limit overlooking.

1. Mr Chiappi and his witnesses, Mr Milner and Mr Goss, focussed their concern upon the proposed shadow impact to apartments G02 and G03.

The Level of Residential Amenity to be Expected

1. The Council submits the shadow impact should be assessed having regard to the fact that this site and 62-64 Station Street form the zone interface between Commercial 1 and General Residential (and in the future is proposed to be Residential Growth). The Council relied upon the oft quoted decision of Buckerfield Architects v Boroondara CC[5] that, at the interface of a commercial site and residential abuttal, the commercial site cannot ignore the residential abuttal and the residential property cannot expect the sort of residential amenity afforded to an area wholly zoned for residential purposes.
2. I asked the parties whether the approach to residential amenity expectations espoused in the above decision remains the same given the zones applying to commercial land have since changed from a Business zone to a Commercial zone with a specific new decision guideline about considering overlooking and overshadowing impacts on a range of zones, including the new residential zones. I also asked the parties whether the reference to various residential zones in this decision guideline meant that a different level of consideration should be applied to each residential zone given these zones provide for differing extents of development (e.g. only two dwellings can be developed on a lot in a Neighbourhood Residential Zone but up to four storeys can be developed in a Residential Growth Zone).
3. Ms Porter referred me to a few recent cases[6] where the Buckerfield Architects approach to amenity expectations had been applied, but was unaware of any cases where the relevance of this approach in light of my questions had been considered. She provided me with an extract from the Commercial & Industrial Zones Ministerial Advisory Committee Report[7] that identifies the issue of amenity expectations was discussed in relation to the levels of amenity that can be expected in the Commercial 1 Zone itself. The Report notes the Tribunal has determined in many cases that amenity expectations are different for those living in a commercial zone versus a residential zone. The Report then states:

... While taking this into account, and to deal with reasonable expectations of amenity, the Committee has included an additional decision guideline in the buildings and works section of the zone to consider overlooking and overshadowing impacts affecting adjoining land to a range of residential zones.

1. Hence, in considering the residential amenity afforded to a residential property at the interface with a commercial site as per the Buckerfield Architects decision, overlooking and overshadowing are now specifically identified as considerations. However, there is nothing in the decision guideline that says the clause 55 objectives or standards relating to overlooking and overshadowing must be met. The inclusion of this decision guideline has not 'raised the bar' of residential amenity expectations to that extent. Rather, this consideration is a qualitative one having regard to the particular facts and circumstances of each proposal.
2. At the time of the Buckerfield Architects case in 2004, the majority of residential land in metropolitan Melbourne was zoned Residential 1, a zone that contained no particular development parameters or limitations. As such, a more generic approach could have been adopted in considering the residential/commercial interface and amenity expectations. That is no longer the case now as the new residential zones have effectively created a development potential hierarchy. For example, the Neighbourhood Residential Zone contains a limit of up to two dwellings on a lot whereas the Residential Growth Zone provides for housing at increased densities in buildings up to and including four storeys. These differences in development potential are a relevant factor when considering the acceptability of overlooking and overshadowing amenity impacts of a development proposed on Commercial 1 zoned land. It is arguable, for example, that a higher level of amenity should be afforded to land zoned Neighbourhood Residential, where potential further development is limited, as opposed to land zoned Residential Growth.
3. In this case, the current residential zone is General Residential; 62-64 Station Street is being developed with a four storey building; and the Council is proposing to change the zoning to Residential Growth that provides for buildings up to four storeys. These factors temper expectations in terms of the amenity which should be afforded to the apartments at 62-64 Station Street including what can or should be considered to be an acceptable overshadowing impact.

1. The shadow impacts upon apartments G02 and G03 are different. G02 is at the rear facing west with a northern sideage to this site; whereas G03 is in the middle of the building, at the base of a broader northern light well, with a sole orientation to the north (to this site).
2. The shadow impact on apartment G02 focussed upon during the hearing was to its west facing courtyard. In relation to this apartment's private open space areas, Mr Goss' shadow study illustrates:
   • Sunlight lost to the small courtyard to the east, adjacent to the bedrooms;
   • A loss of sunlight at 9 and 10am to the raised planter area to the west;
   • A loss of the sunlight enjoyed by a small portion of the courtyard area to the west at 11am; and
   • A loss of the majority of the sunlight enjoyed by the west courtyard area at 12noon (after which the shadow cast on the west courtyard is not caused by this proposal).
3. The shadow impact on apartment G03 focussed upon during the hearing was to its north facing courtyard and its north facing living area. Mr Milner questioned whether 2.5 hours of sunlight into the north facing windows of this apartment is reasonable.
4. Mr Milner suggested what he described as "small changes" that could be made to the proposal to provide "adequate and appropriate amenity" to both apartments, being:
   1. A 3.2 metre high wall to the ground floor adjacent to both apartments;
   2. Remove or narrow the proposed top floor apartment A13 so better solar access can be achieved to the courtyard of G03 (and in turn the east courtyard of G02);
   3. Remodel proposed apartments A9 and A14 to pull them further back from the common boundary and reduce the shadow.
5. These suggested changes were not contained in Mr Milner's expert witness report, but interestingly the Applicant had prepared and tabled plans[8] that incorporated changes, albeit different changes, that sought to achieve similar outcomes to those in Mr Milner's suggestions. These plans show:
   • The south boundary wall lowered to 3 metres for a length of 3.945 metres of apartment G02's west courtyard and for a length of 3 metres of 62-64 Station Street's northern light well, including part of apartment G03's courtyard;
   • Level 2's central corridor set back 4 metres from the boundary with 62-64 Station Street and its northern light well, which involves a reduction in the size of apartment A8;
   • Level 3's central corridor set back 6.73 metres from 62-64 Station Street's northern light well, which involves the removal of apartment A13 and instead a revised layout for apartment A15; and
   • A revised section A through the central light wells of both properties that illustrates the proposed building almost complies with standard B17 of clause 55 for the upper two levels and more than complies for the lower two levels.
6. Mr Milner accepted that these plans make the proposal "better" and address visual bulk. He also accepted that the changes to the upper two levels improve the overshadowing impact to apartment G03
7. On Day 2 of the hearing, Ms Porter tabled new versions of TP04 and SD02 that incorporated changes to reflect the actual conditions of 62-64 Station Street discussed during Day 1 and revealed through Mr Goss' shadow study[9]. These plans extend the lowered 3 metre wall height to the entire northern length of apartment G02's west courtyard.
8. The Respondent Permit Applicant's position is that the additional shadow cast onto apartments G02 and G03 (as well as apartments 103 and 203) based on the permit application plans is acceptable because in the context of 62-64 Station Street being a 35 dwelling four storey development the shadow impact is modest. Ms Porter submits if I think it appropriate, the proposal could be further modified by way of permit conditions to give effect to the tabled plans (as per footnote 9) of suggested changes. Mr Chiappi submits these plans do not go far enough and the resultant shape of the centre of the proposed building is a less desirable built form outcome.
9. Mr Chiappi accepts some impact on the amenity of 62-64 Station Street is reasonable. The question is how much of an impact is acceptable. As I stated earlier, the consideration of overshadowing requires a qualitative assessment. Given this is a four storey to proposed four storey interface, as well as an interface with a site in an activity centre that envisages increases in building height to around four storeys, a shadow impact upon 62-64 Station Street is acceptable. The shadow plans tabled by the Respondent permit applicant of its suggested changes as well as for a four storey office, a two storey office and this proposal with the top floor removed all reveal that only the permit applicant's suggested changes result in an improved outcome, including for apartment G03 in particular. The resultant shape of the building is not a concern as it has no impact on the streetscape appearance and, as Mr Milner says, it reduces the building bulk. On balance, I find the Respondent permit applicant's suggested changes should be incorporated into the proposed design to create an interface that provides an improved and acceptable overshadowing impact.

1. Returning to the issue of building height and the concern about visual bulk, clause 21.05-2 that supports four or more storeys does not identify the potential impact of visual bulk as a matter to be considered. Neither does the decision guidelines of the Commercial 1 Zone. This is understandable given the purpose of the Commercial 1 Zone is to provide for residential use at densities complementary to the role and scale of the commercial centre. The apartments at 62-64 Station Street are in a four storey building and the Council highlighted planning permission has also been given for four storey buildings at 28-30 and 137 Station Street and a five storey building at the corner of Station Street and Railway Place. Proposed Amendment C147 seeks to ensure the growth of this area provides for preferred heights of around four storeys. Within this planning and physical context, any visual bulk impact upon 62-64 Station Street from a four storey development on this site is acceptable.
2. The Applicants expressed concern that the ground level footprint prevents any reasonable opportunity to provide landscaping, and I agree. Landscaping is not a requirement for the development of this site. This land is zoned Commercial 1 and the site and the land to the north in the activity centre do not have a landscaped character but rather a hard edge built form character. It is therefore acceptable for development on this site to be generally built to the boundaries and for the proposal to contain limited landscaping, being primarily the rain garden on the ground floor frontage.

1. The front of the proposed building is effectively built to the street frontage with an architectural style that creates the appearance of a three storey podium. This is different to 62-64 Station Street as it is setback from the street frontage and has a lower three storey podium (by my estimate about half a floor level lower). This is also different to the "garden apartment development model" that is articulated in the Council's proposal to introduce the Residential Growth Zone along Station Street, south of this site as part of Amendment C147. This "model" illustrates a 5 metre landscaped front garden, then a two storey podium with a further two storeys set back behind the podium. The Council acknowledges this proposal is different to this "model" but supports it, pointing out there is no prescriptive podium height in Amendment C147.
2. Mr Czarny described the building frontage as having three parts - an activated ground level, a competently framed two storey element projecting forward and an upper level that appears to be setback but is not. In his opinion, the proposal broadly sits within the Design and Development Overlay suggestions contained in Amendment C147; and the height and bulk in the streetscape is anticipated both physically and through planning policy.
3. I asked Mr Czarny about the differing heights and setbacks of the podium proposed on this site and being constructed at 62-64 Station Street. His opinion is that the differing podium heights add to the diversity of interest in the street. He pointed out that this site and 62-64 Station Street form the boundary between the commercial and residential zones, so it is appropriate for there to be a shift in building setbacks and heights. Mr Czarny's opinion is that the return south wall of this proposal, visible in the front setback area of 62-64 Station Street, needs to be suitably treated architecturally to provide visual interest to this façade. In Mr Czarny's view this south face should be treated with horizontal battens to protect privacy to the south; openings to the middle levels; and glazing to the top level for approximately half of apartment A11's living area (rather than highlight windows). I agree the exposed south face of the proposed building should be modified accordingly.
4. However, I am concerned about the layout and resultant built form of the proposal when the south face changes are combined with the Respondent permit applicant's suggested changes to the middle of the building and the Council's condition 1(c) requiring a light well to the bedrooms of the front six dwellings (over the three upper levels).
5. The proposed layout has the bedrooms located on the north and south side walls of these front six dwellings, which would mean the creation of light wells along these boundaries. The Respondent permit applicant suggested an alternative would be to modify the internal layout of these apartments to put the bedrooms inside the development and create a central light well. Either outcome may necessitate other changes to the layout of these apartments that, in turn, may impact upon the south face changes and/or the middle of the building. I am not persuaded all of these changes should be left to be resolved by permit conditions as I have already explained the potential for one to impact upon another. Hence, these details need to be resolved now before I make a decision to grant a permit. This is one reason why I have decided to issue an interim order.

THE PROVISION & LAYOUT OF CAR PARKING AND THE CAR STACKER ARRANGEMENT

1. The Applicants have expressed concern about what they say is an inappropriate reduction in the car parking requirement. The planning application proposed a reduction in:
   • The residential car parking from 15 to 11 spaces,
   • The residential visitor car parking from 2 to 0 spaces, and
   • The office car parking from 3 to 2 spaces.
2. As a result of the Respondent permit applicant's suggested changes to the middle of the building, one apartment will be lost which in turn means the residential car parking requirement reduces from 15 to 14. Hence, I must decide whether 3 less residential spaces, no visitor parking and one less office space is acceptable. Clause 52.06 requires consideration of a range of matters in making this decision including the anticipated car ownership rates; availability of public transport; convenience of pedestrian and cyclist access; provision of bicycle parking and any empirical assessment or case study.
3. Mr Davies gave evidence the ABS data[10] for Fairfield reveals 26% of one bedroom apartments and 16% of two bedroom apartments do not own a vehicle. He says this suggests on average 4 out of the proposed 15 dwellings would not require a car parking space. Furthermore, Mr Davies considers a reduced supply of residential car spaces is appropriate because of the site's proximity to public transport and the provision of bicycle spaces in the proposal. Given these factors, this reduction is acceptable.
4. In regard to residential visitor parking, Mr Davies relies on previous parking surveys in metropolitan Melbourne that have found the peak demand is 0.12-0.14 spaces per dwelling, which equates to two spaces for this proposal, and that this peak generally occurs on Friday and Saturday evenings. Mr Davies undertook parking surveys on a Friday evening at 8pm and on a Saturday at 1pm that demonstrate there is available on-street parking within reasonable walking distance of this site. Given the availability of on-street parking and the fact that the car parking provided is in the form of car stackers (which is not suitable for visitor parking), this reduction is acceptable.
5. In regard to office parking, Mr Davies gave evidence surveys of offices in inner urban areas with good public transport and adjacent to activity centres generate lower parking demands. He anticipates the proposed office will generate a parking demand of 2-3 spaces. The reliance on up to one on-street parking space for a commercial use in a Commercial 1 Zone in an activity centre is appropriate in Mr Davies opinion, and I accept this evidence.

1. In the Notice of Decision to grant a permit, the Council has imposed condition 20 that requires the planning permit to be attached to a statement of matters affecting land being sold under section 32 of the Sale of Land Act 1962 and any tenancy agreement under the Residential Tenancies Act 1997 advising all purchasers and tenants of any dwelling that they will not be eligible for on-street parking permits.
2. During the hearing, I asked about the validity of this condition and, at the end of the hearing in the discussion about permit conditions, the Council advised it was not sure if condition 20 was valid. The Council explained this condition is imposed either because it has been sought by the Council's traffic engineers or otherwise imposed by the Council's Committee. Given its validity is in doubt, if I ultimately decide to grant a permit, I will not impose this condition.

1. Mr Davies suggested the removal of the scooter spaces; the inclusion of a splay to the bin waste area to improve the swept paths into the car stackers; and modified storage areas and bike racks (two options). Option 2 provides 16 bicycle spaces, one more than option 1. However, Mr Davies acknowledged the reduced size of the waste bin area may necessitate additional bins so options 1 and 2 could be modified to accommodate one or two more bins. The waste management plan submitted with the permit application was for 18 dwellings and sought a waste room of 8.15 square metres containing seven 660 litre bins. Ms Porter advised during the discussion on permit conditions at the end of the hearing that the Respondent permit applicant's preference is to adopt Option 1 with waste bins, if needed, provided closest to the car park entry/exit door. This detail needs to be resolved prior to a permit issuing so that it is clear that the car parking and necessary swept paths, the bicycle parking, the storage areas and waste collection bins required can be provided. This is another reason why I have decided to issue an interim order.
2. During the processing of the planning application, specifications of the proposed car stacker system were submitted to the Council. The proposal effectively provides (in layout form) three tandem car spaces. In this layout will be two integrated car stacker systems - at the front is a two level car stacker that you can drive through[11] and at the rear is a three level car stacker[12]. The notes of the data sheets provided say when this system is integrated, doors are required. I asked in the hearing whether noise protection is required given apartment G02 abuts the car stacker system, including one bedroom, and I referred the parties to the Celic v Yarra CC & Ors decision[13]. None of the parties were able to say if there would be any necessary noise or structural vibration performance criteria required for this car stacker system. The parties all suggested this could be dealt with in this case by imposing permit conditions for acoustic/vibration attenuation. Again, this is a detail that needs to be resolved prior to a permit issuing so that appropriate permit conditions can be imposed about what works, if any, are required during construction and then ongoing compliance. Hence, a report by a suitably qualified acoustic consultant is required that assesses the acoustic and structural vibration impacts, if any, of the proposed car stacker system on the apartments at 62-64 Station Street. This is another reason why I have decided to issue an interim order.

1. I have explained that there are aspects of the design that need to change, being:

1. The Respondent permit applicant's suggested changes as shown in TP04 Rev D, TP06 Rev C, TP07 Rev C and Section A on SD02 Rev D; 2. Translucent screens added to the south side of the balconies for apartments A4, A9 and A14 to limit overlooking;

1. The exposed south face of the proposed building modified in accordance with Mr Czarny's suggestions (as outlined in paragraph 32);

1. The design of light well(s) to achieve the outcome sought by the Council in condition 1(c) of the Notice of Decision to grant a permit; and 2. The removal of the scooter spaces, the inclusion of a splay to the bin waste area to improve the swept paths into the car stackers, modified storage areas and bike racks, and modified/additional waste bin areas if needed closest to the car park entry/exit door.
2. I have also explained that a report by a suitably qualified acoustic consultant is required that assesses the acoustic and structural vibration impacts of the proposed car stacker system on the apartments at 62-64 Station Street.
3. I am of the opinion these changes and this additional information can be dealt with as part of this application, but cannot be effectively achieved by way of permit conditions as it is important I am satisfied with the final design details. I have provided the Respondent permit applicant with the opportunity to respond to my concerns by issuing an interim order allowing an opportunity to prepare an amended set of plans and elevations and an acoustic report. If the Respondent permit applicant does not wish to amend the design or prepare the acoustic report to address my concerns, I will order that no permit be issued.
4. I wish to emphasise to the Respondent permit applicant that this interim order provides an opportunity for the Tribunal's concerns to be addressed, and this order is not an opportunity for further changes (other than consequential changes) to be made to the design.

1. The next step is to ascertain whether the Respondent permit applicant wishes to take up this opportunity and, if so, how long it will need to prepare an amended set of plans and elevations and a report by a suitably qualified acoustic consultant. Upon receipt of the response, I will either issue a final decision setting aside the Council's decision if the Respondent permit applicant does not wish to amend the plans and undertake this additional report or, if it does wish to take up the opportunity, I will issue further directions:
   • Requiring the amended plans, a written explanation of the amendments made, the acoustic report and any associated documentation be served on the Tribunal, the Council and the Applicants;
   • Providing an opportunity for the Council and the Applicants to make further written submissions on the proposed amendments and the acoustic report; and
   • Requiring all parties to advise in writing if they wish the Tribunal to convene a further hearing and, if so, why.
2. Upon receipt of the amended plans, acoustic report and any associated documentation and all further written submissions, I will then determine if a further hearing is required. Ultimately, I will determine if the amendments and the acoustic conclusions/recommendations are satisfactory (with or without a further hearing). If I find this is satisfactory, I will order that a permit be granted subject to appropriate conditions. If I find this material is not satisfactory, I will order that no permit be issued.

[1] The Applicants are B Kelly & S Boyce

[2] The Applicants are M Di Paolo, K & N Best, W Aschman, E Yuan & J Q Chen, B Lewis and S Velo. By order dated 10 November 2014, they were given leave to apply for a joint review of the Council's decision.

[3] I have considered the submissions of all the parties that appeared, all the written and oral evidence, all the exhibits tendered by the parties. I do not recite or refer to all of the contents of those documents in these reasons.

[4] The Residential Zones Standing Advisory Committee hearing concluded on 19 November 2014 and the Council is awaiting the Advisory Committee Report.

[5] [2004] VCAT 659 at paragraphs 19 & 20

[6] Phelan v Port Phillip CC [2014] VCAT 1222, Double Yellow Dot Pty Ltd v Bayside CC [2014] VCAT 309 and Burl v Moyne SC [2014] VCAT 874.

[7] Commercial & Industrial Zones. Reformed Zones Ministerial Advisory Committee Report dated 28 February 2013, pages 1-2 & 47-48

[8] TP04 Rev C, TP06 Rev C, TP07 Rev C and Section A on SD02 Rev C.

[9] So the Applicant's plans of suggested changes are TP04 Rev D, TP06 Rev C, TP07 Rev C and Section A on SD02 Rev D.

[10] Australian Bureau of Statistics (ABS) 2011 Census data

[13] Celic v Yarra CC & Ors [2013] VCAT 936 where a car lift was proposed next to a terrace house. The Tribunal issued an interim order requiring an acoustic report to assess the acoustic impacts of the car lift on the adjoining property. This report found the installation of the car lift was a unique system that required an individual acoustic assessment for the specific product proposed. It established performance criteria for both noise and vibration and made specific recommendations for installation. The Tribunal also imposed a condition in its final order to verify compliance with these recommendations on an ongoing basis.