1. In addition to the impact on the strategic vision for this precinct in particular, the removal of any possible connectivity between Methven Park as an important area of local open space and the amenities of Lygon Street is contrary to the policies that seek to: 264.1 improve access by walking, cycling and public transport to services and facilities (clause 11.03-1S);

264.2 reduce the number of private motorised trips by concentrating activities that generate high numbers of (non-freight) trips in highly accessible activity centres (clause 11.03-1S); > > 264.3 ensure development supports public realm amenity and safe access to walking and cycling environments and public transport (clause 15.01-1S); > > 264.4 integrate place making practices into road space management (clause 15.01-1R); and > > 264.5 ensure large sites provide a network of public streets, footpaths and lanes connecting through the site into the surrounding street and pedestrian network (clause 15.01-1L).

6. In addition, we note that Clause 15.01-2S has the following as a Strategy:

Ensure development considers and responds to transport movement networks and provides safe access and egress for pedestrians, cyclists and vehicles.

1. For these reasons we do not support the removal of the carriageway easement on the review site. Instead, we consider that the easement should remain and provide direct access to Methven Park for the owners/occupiers at 240-250 Lygon Street, and direct access to Lygon Street for future owners/occupiers of the review site. We are optimistic that in the future the respective land owners may work together to provide attractive public pedestrian access through both the review site and 240- 250 Lygon Street.

1. DDO19 identifies the review site as having a 17 metre preferred maximum building height, behind the spine of properties that face Lygon Street which have a preferred maximum height of 23m. The diagram below is extracted from DDO19.

1. We note that there is a mapping error in the Map 1B above, as it incorrectly shows the land at 22 French Avenue as within DDO19, and with a 17 metre discretionary height limit applied to it. Instead, the land is covered by DDO5, which has a 9 metre height limit.
2. In addition, DDO19 contains a discretionary setback provision for properties on residentially zoned land outside the activity centre, which is extracted below.

1. This diagram applies to the interface with land at 15 Leinster Grove, which all parties agree is land in a residential zone located outside the activity centre boundary. The situation is less clear for land at 22 French Avenue which sits alongside part of the eastern boundary of the review site. During the course of the hearing, the parties and the expert witnesses brought our attention to various maps in a range of documents, that identify 22 French Avenue as being either inside or outside of the Brunswick Activity Centre. These include the following:
   1. The Activity Centre Framework Plan at Clause 02.04 of the Merri-bek Planning Scheme provides a map of poor resolution, which places 22 French Avenue outside the Brunswick Activity Centre.
   2. The Map 1B at DDO19 erroneously includes the review site within the DDO boundary. However, this map does not intend to identify which sites are within the Brunswick Activity Centre. We form this view even though DDO19 applies to the Lygon Street component of the Brunswick Activity Centre. We therefore do not consider the maps within DDO19 as able to be used to identify whether land is inside the boundaries of the Brunswick Activity Centre.
   3. The Brunswick Structure Plan Reference Document (2018) contains three figures which depict a boundary to the Brunswick Activity Centre. Figure 2 and Figure 6 place 22 French Avenue inside the Brunswick Activity Centre, whereas Figure 1 places it outside the activity centre.
   4. The Council is currently pursuing the introduction of the The Vibrant Brunswick Draft Brunswick Activity Centre Structure Plan (Merri-bek City Council, April 2024) to the Merri-bek Planning Scheme via Amendment C230. The Council is awaiting authorisation from the Minister for Planning to prepare and exhibit the amendment. This document also is inconsistent in its mapping of 22 French Avenue shown as both inside and outside the Brunswick Activity Centre.
2. It is our finding that we need to be first guided by the content of the Merri-bek Planning Scheme to determine if the land at 22 French Avenue is within the Brunswick Activity Centre and only turn to other documents if the Planning Scheme leaves some doubt in this respect. As conceded orally by Mr McBride-Burgess, the Activity Centre Framework Plan at Clause 02.04 of the Merri-bek Planning Scheme depicts 22 French Avenue as being outside of the activity centre. As we have concluded that this is not contradicted by any other part of the Merri-bek Planning Scheme, we consider this plan to have the 'final word' and there is no need to go outside the Planning Scheme to determine this question. To avoid any future confusion or uncertainty, we encourage Council to insert a clearer map into the Planning Scheme.
3. Council submits that amended plans do not adequately respond to the preferred future character of the area nor comply with the design objectives and built form requirements of DDO19. It says the development does not provide an appropriate transition in height from the Lygon Street activity corridor to the adjoining low-rise residential and parkland area to the east and south of the site.
4. Prof McGauran's evidence is that the scale of development is too great and that there must be a pronounced stepping down both from the north-west interface with 240 -250 and 262-270 Lygon Street and further substantial stepping down to the lower podium scale and residential and park interfaces. He says a reduced scale with the highest built form in the north-west corner scaling down the south, south-east and east, in a way that minimises offset amenity impacts, is required.
5. His opinion is that the excessive scale in combination with an insufficient setback to 22 French Avenue along the eastern interface will cause unacceptable visual bulk from the east, as well as significant impacts in terms of privacy and overshadowing.
6. In contrast, the applicant submits that the proposal is consistent with the preferred mid-rise built form character for this part of Brunswick, that it provides for a transition in height to the east and south and provides appropriate setbacks to all interfaces. The proposal incorporates design elements such as lighter materials and finishes and upper-level landscaping which reduce the visual impact of the building. As discussed above, the applicant relies on the evidence of Mr McBride-Burgess and Ms Bell.
7. Based on this evidence, the applicant submits that the height and massing are consistent with the relevant built for policies in the Merri-bek Planning Scheme and specifically DDO19. Mr McBride-Burgess assessed the impact of the overall building composition, including building heights and setbacks proposed for each interface. He concluded that the proposal would not appear out of place or be highly visible, in particular because it would be experienced within a context of an area in transition which includes a variety of building forms and heights.
8. Ms Bell supports Mr McBride-Burgess's conclusions. She does not agree with Prof McGauran. Her evidence is that despite the exceedance of the preferred maximum building height of DDO19 by approximately 9 metres, the proposal results in a building of appropriate scale, responding to both the emerging context and the ability of a large site to accommodate such scale. She supports the placement of the tallest element in the northern part of the site, as does Prof McGauran, but differs in her opinion that the proposed massing outcome is effective in creating a transition to the adjoining low-rise residential properties to the south. The combined setbacks from the east and south ensure, in her view, that the massing appropriately transitions to the neighbouring townhouses at 22 French Avenue, assisted by the materiality of the podium townhouse element which responds to the grain, character and scale of the adjacent residential areas.
9. Visual bulk is an inevitable outcome of a development of the height and scale anticipated by the provisions of DDO19. An assessment is required as to whether the proposed development is configured and articulated in a way that moderates the appearance of a large built form to an acceptable degree, acknowledging both the robustness of the activity centre context and the sensitivity of the low-rise residential areas to the south and east of the review site.
10. We have concluded that the impact of visual bulk to the north where future higher development is a likely scenario, and to the west where the building at 240-250 Lygon Street is of a similar height to that proposed, may be acceptable, depending on the extent and design treatment proposed. However, to the south and east the impact of the visual bulk which results from the proposal is not acceptable. We agree with Council that the response to the urban design aspirations for the area is unsatisfactory. The visual impact of the built form will be unacceptably dominating when viewed from the south or the south-east.
11. Particularly to the eastern interface of the review site with the two and three storey townhouses at 22 French Avenue, we consider that the proposal to site a seven/eight[5] storey development setback 6.575 metres from the eastern boundary of the site results in a bulky interface of significant scale. We find that this height and setback is inappropriate for this interface, having regard to:
    1. The fact that even at this sensitive interface, the proposal significantly exceeds the 17 metre discretionary height limit for the review site;
    2. The setbacks and height exceed that sought by DDO19 at the interface to land outside the activity centre, which would preference a 10 metre setback to any built form over 15 metres in height;
    3. The adjoining property at 22 French Avenue comprises relatively recently developed two and three storey townhouses, which are unlikely to be redeveloped in the short and medium term;
    4. The transition in height fails to achieve the outcome sought in DDO19.
12. As a site located behind the Lygon Street interface of the Brunswick Activity Centre, abutting a heritage listed park, a more sophisticated and nuanced approach to the modelling of the building is required. As currently proposed, the development, although successful in visually differentiating the upper levels from the masonry podium element, is unsuccessful in making them appear visually recessive. It fails to provide an effective transition between the built form character of the Lygon Street spine and the adjoining low-rise residential areas or the park.

1. Council says the proposal fails to protect and enhance Methven Park.
2. Prof McGauran bases his analysis of the southern interface on the impact of the proposal on the overshadowing of the park. Mr McBride-Burgess notes that the setbacks vary between 5 and 7 metres along the southern boundary, reducing to 3.67 and 5.8 mertes at first floor level, with terracing proposed above the fifth level at a height of 16.80 metres. His view is that the necessary change in appearance to this interface is moderated by other elements of the design.
3. Ms Bell's evidence is that the response of the proposal to the south is acceptable, given that DDO19 'envisages a sheer 17 metre built form envelope' to this boundary with the park. She says that the vertical program of three horizontal elements and the wide deep entry forecourt break up the massing along this interface and create a scale comparable to the adjacent dwellings, including 15 and 15A Lienster Grove.
4. DDO19 provides some guidance as to the built form and shadowing outcomes expected to the Methven Park interface. It does this through the following Design objectives.
   • To create a new mid-rise built form character that provides a built form transition between the Lygon Activity Corridor and adjoining low-rise residential areas.
   • To protect and enhance the amenity, and maintain solar access to existing and proposed public open spaces and key pedestrian streets, and maintain reasonable amenity for residential properties adjacent to or within the activity centre.
5. The following decision guidelines are also relevant, noting that Methven Park is within a Heritage Overlay.
   • Whether the maximum building height is achievable having regard to the heritage significance of the site or an adjoining site within the Heritage Overlay.
   • Whether an increased upper-level setback is appropriate having regard to the heritage significance of the site or an adjoining site within the Heritage Overlay.
6. In relation to the potential shadows on Methven Park, the applicant submits the following.
   1. The Second Amended Plans demonstrate that the additional shadows, cast by the Development, are confined to a small portion of the park along the northern boundary. It is the Applicant's submission, supported by the expert evidence before the Tribunal, that the proposed shadow outcomes are acceptable.
   2. Specifically, the shadows are:

a) Limited to avoid sensitive areas such as the outdoor seating, playground and the main pedestrian thoroughfare; > > b) Arranged to not change with way the open space is currently enjoyed; > > c) Minimised due to a staggered setback arrangement where the upper levels of the building are recessed.

3. The proposed shadows will not affect the health and viability of the existing mature trees located in the northern section of the park. This was confirmed by Council's arborist in the Council Report.
4. We are not persuaded by these submissions. Instead we find that the proposed building will overshadow Methven Park to an unreasonable degree. In making this finding we note that the Merri-bek Planning Scheme provides no test for assessing the appropriateness of the shadows on areas of public open space, and contrary to the views of some parties in this proceeding, we do not find it useful to be guided by controls in the Melbourne Planning Scheme that simply do not apply in this municipality.
5. We accept the evidence of Prof McGauran that Methven Park is more than just a pocket park, and that it provides an important open space role in the broader Brunswick Activity Centre. We therefore consider that there needs to be a greater protection of solar access to this park than the current development scheme provides. In particular, we are concerned that the shadows cast at the equinox between 11:00am and 1:00pm from the 'eastern wing' of the proposed building will impact the amenity of the northern area of the park. We are also acutely aware that these shadows will lengthen between the equinox and the winter solstice, over an area of Methven Park that is currently valued for its solar access.
6. In the absence of a particular test in the Merri-bek Planning Scheme we have chosen not to prescribe what shadows could be cast by an amended proposal. We do not accept Prof McGauran's evidence that the proposal should be restricted to the shadow cast by the existing warehouse, namely because there is nothing in the Merri-bek Planning Scheme that would indicate that the existing shadow cast by an industrial building creates an appropriate benchmark for the future shadows to this public open space. Instead, we consider that with an appropriate built form response to Methven Park, which we come to next, then the shadowing impact will largely take care of itself.
7. However, we are persuaded by the evidence of Prof McGauran that a building of reduced scale should present to the interface of the review site with Methven Park. The diagram below demonstrates the additional setbacks (in red) that Prof McGauran considers appropriate.

1. We agree with Mr McGauran's analysis that there should be a step down in height from the development at 240-250 Lygon Street, noting that even were the upper most level deleted, the height of the building would still exceed the preferred maximum building height by over 6 metres.
2. We consider that a three-storey podium to interface with Methven Park, with setback upper levels above it, would be an appropriate built form interface. The two-storey façade that is proposed to face Methven Park has a height of between 8.74 and 9.18m,[6] which is roughly equivalent to the height of a three-storey building.
3. Therefore, based on the current floor to floor heights, we support the proposed podium height to Methven Park, though we would also support a modest increase in height, if it resulted in a three-storey residential podium. Our support for a three-storey podium is largely based on the recognition that the review site, with its Mixed Use Zoning, should support a step up in height compared to the one and two storey interface to the park provided by 22 French Avenue and 15 Leinster Grove.
4. Above the podium, we find the evidence of Prof McGauran, that a far more generous range of setbacks from Methven Park are necessary to achieve an acceptable built form to this interface, persuasive. We make this finding for the following reasons. Firstly, Methven Park is in a Heritage Overlay and is currently surrounded by low scale housing. While an increase in building height is anticipated on the review site, as compared to other interfaces, building height needs to be managed in a way that it does not overwhelm this important area of public open space or the surrounding heritage place.
5. Secondly, we read clear guidance from the Merri-bek Planning Scheme, especially from DDO19, that a transition in heights is sought from development along the Lygon Street spine, down to the low scale hinterland. DDO19 is also clear that the presence of the Heritage Overlay will further impact heights and setbacks to upper levels, as set out in the Decision guidelines. The review site is located between the taller spine of development along Lygon Street and Methven Park, the latter of which is under HO113. This is reflected in DDO19 by the application of a lower discretionary height limit applied to the review site.
6. In response to this clear guidance, a sensitive built form interface is anticipated by the Merri-bek Planning Scheme between the review site and Methven Park, albeit one that will allow significant height to be achieved on other parts of the review site. We consider that Prof McGauran strikes the right balance between achieving a sensitive interface to Methven Park, and allowing substantial height by incorporating appropriate upper level setbacks. However, we also note that Prof McGauran suggests one example of the way in which the impact of upper levels behind a three storey podium can be reduced. As part of an amended proposal, a number of other design responses may also be acceptable.
7. For this reason, we make no finding as to the precise overall height or setbacks which would be appropriate. This is because visual bulk, overshadowing and overlooking as well as internal amenity for the proposed apartments all have a role to play in the determination of an acceptable massing. As we have not been persuaded that the proposal should depart from the setbacks along the low scale residential interfaces to the south and east shown in figure 1 of DDO19, a design review of the proposal is necessary in terms of both height and setback. As proposed, the building is simply too large, and the built form, particularly along the southern interface, too imposing.

1. Earlier in these reasons we identified the policy at Clause 15.01-2L of the Merri-bek Planning Scheme and set out the Strategies that seek to achieve that policy. The policy then proceeds to set out a series of preferred separation distances between buildings. The separation distances for a building of 5-8 storeys in height are:
   1. From a side or rear boundary: 9 metres for a living room or main balcony; and 4.5 metres for a bedroom
   2. From another building within a site: 18 metres from living room/main balcony to living room/main balcony; 9 metres from bedroom to bedroom; and 13.5 metres from living room/main balcony to bedroom.
2. In addition, the following separation distances are provided for a building of 9 storeys or more:
   1. From a side or rear boundary: 12 metres for a living room or main balcony; and 6 metres for a bedroom
   2. From another building within a site: 24 metres from living room/main balcony to living room/main balcony; 12 metres from bedroom to bedroom; and 18 metres from living room/main balcony to bedroom.
3. The building comprises 8 residential storeys, however one of those storeys has a much taller floor to floor height, to accommodate an additional mezzanine floor of above ground parking in the northern half of the site. As such, when counting the floors of car parking, and the residential floors above that, the building technically is a 9 storey building. The arrangement of floors in the building is set out in the section below taken from plan TP305.

1. In this proceeding, the application of the setbacks set out in Clause 15.01-2L have been complicated by the planning history on the review site. Following the grant of a planning permit for the 8 storey apartment building at 240-250 Lygon Street, the land that was one site was then subdivided. It separated the review site from 240-250 Lygon Street, creating a boundary aligned with the eastern wall of the 8 storey apartment building at 240-250 Lygon Street. The result is that there is no setback from the eastern wall of the 8 storey apartment building at 240-250 Lygon Street, to the western boundary of the review site. Therefore, and quite unusually, all of the separation distance between the 8-storey apartment building at 240-250 Lygon Street and a future development on the review site needs to be provided within the review site.
2. We note that this not very different from the interface between 92-96 Albert Street, and the on-boundary development at 22 French Avenue. In that case, a 9.2m wide setback has been provided from the above podium levels at 92-96 Albert Street to the southern boundary of that site, and to the three storey townhouses at 22 French Avenue.
3. Likewise, as a result of the planning history, the entirety of the setback from the building at 240-250 Lygon Street will need to be provided on the review site. That is evident from the endorsed plans for 240-250 Lygon Street, which depicts the provision of a 'light and air easement', which is another way of referring to a building setback, on what is now the review site. This 'light and air easement' is not dimensioned, but as depicted on the following extracts from the endorsed plans, we have scaled it as being approximately 10.0 metres wide (as measured from the façade of the building at 240-250 Lygon Street). We note the evidence of Prof McGauran that he has scaled this 'light and air easement' as being 10.5 metres wide. The effect of the subsequent subdivision is to place the entirety of this 'light and air easement' within the boundaries of the review site.

1. There is therefore an expectation that separation between a new building on the review site and the existing building at 240-250 Lygon Street will be provided entirely within the review site.
2. The proposal before us provides a range of setbacks from the western boundary of the review site that include the following:
   1. Ground floor: between zero and 7.68 metres
   2. First floor: 2.78 to 6.33 metres
   3. Third floor and above: 6.74 to 9.0 metres
3. We consider these setbacks will be ineffective in achieving appropriate amenity outcomes for both the proposed apartments on the review site, and the existing apartments at 240-250 Lygon Street. We make this finding for the following reasons:
   1. We are persuaded by Prof McGauran's evidence that the narrow separation distance proposed between the two buildings will allow insufficient solar access to the east façade of 240-250 Lygon Street, and the western façade of the proposed development on the review site. That is because one of the buildings shadows the other in the morning, and the reverse occurs in the afternoon, resulting in a very limited time during which the respective façades of the two buildings enjoy solar access. Greater separation is required to achieve an appropriate level of solar access to both buildings.
   2. The reduced separation distance has created the need for various screening devices to be added to the western façade of the proposal. These include screens to balconies, screening to windows, and a pergola over ground level secluded private open spaces. An appropriate separation distance would avoid the need for such screening measures and achieve appropriate internal amenity outcomes for apartments on the review site.
   3. It is the oral evidence of Mr Talacko that the three central apartments/townhouses on the review site which face west will receive an unacceptably poor level of daylight access to their living areas and require redesign. Mr Talacko set out options for their redesign, but we have not been provided with any material demonstrating that these options are achievable, or that they will result in an acceptable level of daylight access. Ultimately, in the absence of an alternative assessment, we conclude that a greater separation distance is required to achieve an acceptable daylight outcome.
4. It is evident from the endorsed plans for 240-250 Lygon Street, which at that stage was part of the review site, that there was to be a separation distance in the order of 10 metres to any further development on the review site. For the reasons set out above, we have not been persuaded that significantly reducing this separation distance will achieve appropriate amenity outcomes. We are unconvinced that the future planning of the site should depart from the previously planned separation distance of around 10 metres.

Shadowing impacts to 22 French Avenue & 15 Leinster Grove

1. The acceptability of the amount of shadow cast by the proposal was discussed in detail during the hearing. It is an important component of our consideration of the case.
2. The application will cause shadowing at the equinox to the areas of secluded private open space at 15 and 15A Leinster Grove to the south of the review site, and units 6, 7 & 8 at 22 French Avenue to the east. Some dwellings along these interfaces are more affected than others, due to their immediate proximity to the review site. We will analyse only the shadow impacts at 15 Leinster Grove and unit 7/22 French Avenue, because if the shadow impacts to these apartments are acceptable, or can be made to be acceptable, then the shadow impacts will also be acceptable for the other properties at these interfaces.
3. Clause 32.04-11 of the Mixed Use Zone sets out the following provision.

Any buildings or works constructed on a lot that abuts land which is in a General Residential Zone, Neighbourhood Residential Zone, Residential Growth Zone, or Township Zone must meet the requirements of Clauses 55.02-3, 55.02-4, 55.04-1, 55.04-3, 55.04-4 and 55.05-2 along that boundary.

1. As both 15 Leinster Grove and 22 French Avenue are within the Neighbourhood Residential Zone, this provision applies to these interfaces. The Clause 55 objectives referred to in this provision are as follows:
   1. Clause 55.02-3 Side and rear setbacks objective. Parties present at the hearing agree that instead of having regard to the objective and standard of this Clause, it is more appropriate to be guided by the setbacks adjacent to residentially zoned land outside the activity centre, set out in DDO19. We agree with this approach and have conducted that analysis earlier in these reasons.
   2. Clause 55.02-4 Walls on boundaries objectives. This is not relevant as construction of walls on boundaries to land in another residential zone is not proposed in the design before us.
   3. Clause 55.04-1 Daylight to existing windows objective. Again, this is not relevant to our consideration, as dwellings within another residential zone abutting the review site do not have windows that are orientated towards the review site.
   4. Clause 55.04-3 Overshadowing secluded private open space objective.
   5. Clause 55.04-4 Overlooking objective. The parties to the proceeding are satisfied that this objective and standard is either already achieved by the proposal, or can be achieved through additional details on the plans required by a permit condition.
   6. Clause 55.05-2 Overshadowing domestic solar energy systems objective.
2. That leaves two objectives for us to deal with.
3. During the course of the hearing the Tribunal drew the parties' attention to the transitional provisions at Clause 32.04-7 of the Merri-bek Planning Scheme, in relation to Amendment VC267. In their closing or right of reply submissions, both the applicant and the Council made oral submissions as to the effect of these transitional provisions, on the application of Clause 32.04-11 of the Planning Scheme. These two parties differed on their view as to whether we should be guided by the pre Amendment VC267 version of Clause 55, or the version found in the Planning Scheme today.
4. We have declined to determine a question of law as to the effect of the transitional provisions for Amendment VC267 on the application of Clause 32.04-11 of the VPPs. We take this position as we consider that we have not received fulsome submissions on this issue from the Council and the applicant. Rather both parties did the best they could with oral submissions 'on the run' during the hearing. We also did not put to the parties the observation that there are no transitional provisions associated with Amendment VC276, which is the most recent amendment to Clause 32.04-11 of the VPPs. Our position is that we do not need to resolve this matter for the purposes of this proceeding, for reasons that follow.
5. We deal first with the overshadowing of secluded private open space. In relation to the shadow impacts on surrounding properties, the applicant submits the following.
   1. These shadow outcomes are, in the Applicant's submission, acceptable in this instance for the following reasons:

a) The Subject Site is located in an area nominated for change; > > b) Amenity expectations at these interface locations need to be tempered to balance the competing expectations within the Scheme; > > c) DDO19 seeks to ''maintain a reasonable level of amenity'' for these dwellings having regard to the locational context and policy aspirations for the area; > > d) The dwellings at 22 French Avenue have multiple area of private open spaces; > > e) The proposal provides generous ground and upper level setbacks from the southern and eastern boundaries which create breathing space between buildings; > > f) These neighbouring properties also have direct access to Methven Park ensuring ample opportunities for additional access to sunlit open space throughout the day; and > > g) The shadowing implications represent a balanced and appropriate outcome, will maintain reasonable amenity, and will not unreasonably overshadow the adjoining properties.

2. Having regard to the above, it is respectfully submitted that the proposed shadowing implications represent a balanced and appropriate outcome.
3. Both 15 Leinster Grove and 7/22 French Avenue receive an amount of sunlight to their respective areas of secluded private open space (SPOS) that is less than both the previous Standard B21, and the new Standard B4-3. As such, under both Standards, the new development on the review site should not further reduce the amount of sunlight to the respective areas of SPOS.
4. At 15 Leinster Grove, the proposed development will completely remove the relatively small amounts of solar access currently enjoyed by the SPOS at 9:00am, 10:00am and 11:00am. While the proposal will not overshadow the SPOS from midday onwards, it is relevant to note that the dwelling at 15 Leinster Grove currently receives sunlight to:
   1. less than half of its SPOS at midday;
   2. the smallest slither of SPOS at 1:00pm; and,
   3. none of its SPOS at both 2:00pm and 3:00pm.
5. Due to the existing solar access to the entirety of 15 Lienster Grove, we consider that this level of impact is significant, and cannot satisfy the relevant objective, which is unchanged by Amendment VC267. We do not agree with the evidence of Mr McBride-Burgess and Ms Bell that this level of solar access is acceptable at an interface condition to an activity centre, and will provide an appropriate level of amenity. Instead, we consider it paramount that a form of development on the review site preserves at least some of the existing solar access enjoyed in the morning by the SPOS at 15 Leinster Grove, particularly at 10:00am and 11:00am.
6. Indeed, that is what a development that complies with the setbacks[7] sought in this context under DDO19 would start to achieve. As demonstrated in the oral evidence of Mr McBride-Burgess, a built form compliant with these setbacks, and with a 6 metre western boundary setback, would reduce the shadow impact at both 10:00am and 11:00am to the SPOS at 15 Leinster Grove. In our view, this is further evidence that the setbacks sought by DDO19 to this interface are appropriate and should be provided on the review site, in part at least to deal with the resultant shadowing impacts.
7. Turning now to 7/22 French Avenue, this dwelling has the following areas of secluded private open space:
   1. A terrace at first floor level (accessed from a bedroom and a studio) that is already completely overshadowed at both 2:00pm and 3:00pm at the equinox;
   2. A balcony at second floor level (accessed from the primary internal open plan living area), about half of which is overshadowed at 2:00pm and all of which is overshadowed at 3:00pm; and,
   3. A roof terrace (accessed via a spiral staircase from the second floor balcony) that experiences minor amounts of shadowing from a balustrade height parapet at both 2:00pm and 3:00pm.
8. The proposal will cause the following shadows:
   1. At 2:00pm at the equinox, completely overshadow the second floor balcony, and cause a minor amount of additional shadowing to the rooftop terrace; and,
   2. At 3:00pm, completely overshadow the rooftop terrace (noting that the second floor balcony is already overshadowed at this time).
9. For a dwelling at the direct interface to land within an activity centre that is identified for higher density housing, we consider this outcome just achieves an acceptable overshadowing outcome. Solar access at 3:00pm at the equinox at such an interface location is not a reasonable expectation, noting that the relevant standards refer to 5 hours of sunlight at the equinox, which can commence at 9:00am and conclude at 2:00pm. The rooftop deck at 7/22 French Avenue maintains very good solar access for these five hours, and as such we find that the proposal in its current form does not significantly overshadow the areas of SPOS at this property.
10. However, for the reasons set out above, we have found that the built form outcome at this interface is overbearing and will result in unreasonable visual bulk. A design that addresses these deficiencies by increasing the setbacks provided along this interface will further reduce the shadowing impacts on the areas of SPOS at 7/22 French Avenue.
11. Finally, there is also some shadowing from the proposal of the solar panels on the roof of 6/22 French Avenue and solar hot water systems generally at 22 French Avenue. The impact of this shadowing is considered in the evidence of Mr Talacko, whose opinion is that the performance of the solar panels will decline by around 18% across a year. While this is a noticeable reduction, we also need to take into account the siting of the solar panels close to land (the review site) inside an activity centre. Again, we find ourselves dealing with an impact that is on the border of acceptable outcomes in this edge of activity centre location but note that the built form changes we consider necessary to achieve an appropriate outcome will considerably reduce the shadowing impact on the solar panels.

1. We recognise that the review site is an excellent candidate for higher density residential development, and able to respond to the current significant shortfall of housing in well serviced locations. Indeed, the redevelopment of sites such as this for new housing should be firmly encouraged. However, such development must be guided by the local planning scheme, indeed that is the very reason why we have policies and provisions in planning schemes. In this physical context, the Merri-bek Planning Scheme provides very clear guidance as to a range of acceptable outcomes for future development on the review site.
2. Having regard to this guidance and for the reasons set out above, we find that the proposal that is before us fails to achieve fundamental design elements that must be the starting point in achieving an appropriate and reasonable design outcome for the review site. A significant redesign is required to respond to these crucial design elements.
3. We have concluded that, as these fundamental elements are not achieved by the proposal before us, we will not proceed to explore the other matters raised by the parties in this proceeding such as traffic, parking and the standard of internal amenity, all of which will clearly require examination as they pertain to any future proposal.

1. For the reasons given above, the decision of the responsible authority is affirmed. No permit is granted.

[1] Section 4(2)(d) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) states a failure to make a decision is deemed to be a decision to refuse to make the decision.

[2] The submissions and evidence of the parties, any supporting exhibits given at the hearing and the statements of grounds filed have all been considered in the determination of the proceeding. In accordance with the practice of the Tribunal, not all of this material will be cited or referred to in these reasons.

[3] Paragraph 123 of the evidence statement of Mr McBride-Burgess, dated May 2025.

[4] Referred to by the Council's written submissions as the BSP Reference Document.

[5] Depending on how one counts the mezzanine car park level, and the effect this has on the taller than usual floor to floor heights to the lower level townhouses.

[6] As electronically scaled off plan TP300 South elevation.

[7] That is, the setbacks to residentially zoned land outside the Activity Centre.