1. Leave is granted to substitute the plans that are subject to the Application for Review for those prepared by Baldasso Cortese and dated 15 August 2013 (Revision A).
2. The decision of the Responsible Authority in relation to permit application no. PLN12/0888 is set aside.
3. A permit is granted in relation to land at 217-241 Queens Parade, Clifton Hill. The permit will allow the demolition of the existing building and construction of a mixed use building, use of the land for a food and drink premises (café) and a retail premises, reduction of the standard car parking requirement and waiver of the loading bay requirement in accordance with the endorsed plans.
4. The permit is subject to the conditions contained in Appendix 1 to these reasons.

Mr Cicero called expert evidence from Marco Negri (town planner) of Contour Town Planners, Tim Biles (urban designer) of Message Consultants, Anita Brady (heritage consultant) of Lovell Chen, Jason Walsh (traffic engineer) of Traffix Group and Johnny Wilkinson (visualisation) of Scharp.

As none of the parties sought to cross examine Mr Wilkinson he was not called to give evidence.

Ms Marcus circulated expert evidence from Simon McPherson (urban designer) of SJB Urban, Bruce Trethowan (heritage consultant) of Trethown Architecture and Interior Design and Robyn Riddett (heritage consultant) of Anthemion Consultancies.

However Ms Riddett was not made available for cross examination by the other parties.

Sarah Adams, Solicitor appeared in behalf of Susan Zeitz on day 1. On days 2 and 3 Susan Zeitz appeared in person.

Barrie Morton, Michael Davey, David Hodder and Alex MacMillan all appeared in person.

Construction of an eight storey building comprising a 3 level basement, ground floor uses of retail premises and food and drink premises, and seven storey containing 57 apartments above. Vehicular access to the basement is proposed from Dummett Crescent.

Application under Section 79 of the Planning and Environment Act 1987.

Clause 32.04-2 to use land for a food and drink premises and a retail premises within the Mixed Use Zone.

Clause 32.04-6 to construct two or more dwellings on a lot on land within the Mixed Use Zone.

Clause 32.04-8 to construct a building or construct or carry out works associated with a Section 2 Use under the Mixed Use Zone.

Clause 43.01-1 to demolish a building, construct a building or construct or carry out works on land affected by the Heritage Overlay.

Clause 52.06-3 to reduce the standard car parking requirement set out under that Clause.

Clause 52.07 to waive the requirement for a loading bay.

Clauses 10, 11, 15, 16, 17, 18, 21, 22.02, 22.03, 22.05, 32.04, 43.01, 45.03, 56.06, 52.07, 52.29, 52.34, 52.35 and 65.

The land is an irregular shaped allotment with a frontage to Queens Parade 30.45 metres, a sideage to Dummett Crescent of 31.42 metres, and an overall area of 915 square metres. The land presently supports a two storey post-war warehouse building, which is proposed to be demolished in its entirety.

The Tribunal conducted an accompanied inspection of the site and surrounding area on 3 October 2013.

Knox City Council v Tulcany Pty Ltd [2004] VSC 375; NJJJKT Pty Ltd v Whitehorse CC [2008] VCAT 1410; Richmond Icon Pty Ltd v Yarra CC [2011] VCAT 2175.

1. Leaper Investments Pty Ltd (the 'Applicant for Review') has sought a review of the failure of the Yarra City Council to grant a permit within the prescribed time in respect of a development of land at 217-241 Queens Parade, Clifton Hill. The proposed development consists of the demolition of the existing building on the land, and construction of a new eight storey building, containing a food and drink premises and a shop on the ground floor, and 57 apartments above, over a three level basement car park. Permission is also sought to waive the loading bay requirement and reduce the standard car parking requirement.
2. The Application for Review is opposed by Yarra City Council, who determined that they would have refused to grant a permit based on grounds relating to the scale of the development, the inadequate setbacks at the upper levels, and its impact on the significance of the heritage place.
3. The Application for Review is also being contested by a number of nearby residents. They raise a number of concerns, relating to the height and scale of the development, the architectural finish to the proposed building, the impact on the heritage precinct, the lack of a loading bay, and the traffic and car parking impacts of the proposal.
4. The key issues or questions for determination are:

1. Is the scale of the proposed development consistent with the policy intent for this locality? 2. Will the proposal affect the significance of the heritage place?

1. Is the design of the proposal responsive to the surrounding physical context?

1. Will there be any unreasonable off-site amenity impacts? 2. Is an appropriate level of internal amenity achieved? 3. Does the proposal appropriately provide for car parking and traffic movements?
2. 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, we have decided to set aside the Council's decision, and direct the grant of a planning permit. Our reasons follow.

Is the scale of the proposed development consistent with the policy intent for this locality?

1. Yarra City Council submitted that the dispute was not about height per se, and clearly set out the policy drivers behind an increase in scale in this location.
2. The residents provided some diverse views about the preferred height for the review site, but all agreed that an eight storey development was not appropriate for this Neighbourhood Activity Centre. While most of the focus of the resident's submissions were in relation to the physical, rather than the policy, context, it is the policy context which is an appropriate starting point for our analysis.

1. There are a number of policy influences on the review site. As is often the case in a planning dispute, the range of applicable State and local policy does not pull the decision maker in a consistent direction. There are competing policy objectives at play here, and our role as a decision maker is not to try to achieve an ideal outcome[2] in respect of all policy aspirations. Instead we are required to seek to facilitate an appropriate or reasonable outcome, arrived at by applying policy as a whole. An appropriate or reasonable outcome may involve some benefits and some disbenefits, in which case we need to be satisfied that a net community benefit is achieved.[3] In determining how to achieve a net community benefit, we will need to decide what weight to give to the competing policy objectives.
2. The first theme identified within the relevant policies is the encouragement of the achievement of urban consolidation on the review site. Such relevant policy references are numerous, and so we will only repeat a few of them below. These policy references are particularly relevant in this case as the review site is located within a Neighbourhood Activity Centre, and within easy walking distance of both a bus and tram transport interchange, and a railway station. Further the site is relatively large, and therefore is classified as a strategic redevelopment site under State policy.[4] As such the following policy objectives are relevant:

Encourage a diversity of housing types at higher densities in and around activity centres.[5]

Encourage higher density housing in and around Neighbourhood Activity Centres that is designed to fit the context and enhances the character of the area while providing a variety of housing options for different types of households.[6]

Increase the supply of housing in existing urban areas by facilitating increased housing yield in appropriate locations, including under-utilised urban land.[7]

Increase the proportion of housing in Metropolitan Melbourne to be developed within the established urban area, particularly at activity centres, employment corridors and at other strategic sites, and reduce the share of new dwellings in greenfield and dispersed development areas.

Encourage higher density housing development on sites that are well located in relation to activity centres, employment corridors and public transport.[8]

Development on strategic redevelopment sites or within activity centres should generally be no more than 5-6 storeys unless it can be demonstrated that the proposal can achieve specific benefits such as:

• Significant upper level setbacks
• Architectural design excellence
• Best practice environmental sustainability objectives in design and construction
• High quality restoration and adaptive re-use of heritage buildings
• Positive contribution to the enhancement of the public domain
• Provision of affordable housing.[9]

1. We have found that, in this case, it is the policies that encourage urban consolidation that should be given the greatest weight. We make this finding having regard to the following influences:

1. The clear policy support for the achievement of higher density housing in an activity centre location such as this, within easy walking distance to a tram/bus interchange and a railway station; 2. The application of the Mixed Use Zone to the land, which has been recently amended to add an objective seeking to achieve higher density housing;

1. The physical attributes of the site, which lend themselves to the achievement of significant urban consolidation here with a minimum of off site impacts and include: 1. Its size; 2. Its corner position, albeit to a laneway on one side; 3. The distance to any existing residential property; 4. Its abuttal to a very wide boulevard, which can clearly accommodate substantial height; 5. Its adjacency to a number of similar opportune sites to the north-east which can accommodate buildings of a similar height, or taller.

1. The 'central role' that urban consolidation plays in the broader State policy, that is concerned with the slowing and containment of urban sprawl, principally to be achieved by the establishment of diverse, affordable new housing in established suburbs.
2. That does not mean that we need to 'toss aside' the other important policy objectives. Rather we consider that where policy objectives are pulling us in different directions, the urban consolidation objectives draw more weight in determining an appropriate outcome for this site.
3. We understand that the residents will be disappointed in hearing the weight we intend to give the achievement of urban consolidation policies in this proceeding. However that is a direct result of their high relevance to a site such as this. As was discussed by the Tribunal in the decision of NJJJKT Pty Ltd v Whitehorse CC [2008] VCAT 1410,[10] urban consolidation policies in a site such as this is much more than just a background hum:

Informed participants in the planning approval process recognise that strategies in relation to urban consolidation, diversity and affordability are equally important to strategies in relation to neighbourhood character. However, it is my concern that because neighbourhood character is inherently site specific and local in its application then neighbourhood character considerations dominate the debate about particular projects while consolidation diversity and affordability are reduced to a background hum in our thinking.

It is very evident that at this particular time in the history of our city we have both a housing crisis, essentially a crisis of affordability and a population growing at a rate greater than anticipated by Melbourne 2030. The causes of the current housing affordability crisis are highly complex, and are not solely related to housing supply, or more particularly the role of the planning system in affecting the supply of new housing. Nevertheless, it is the case that the planning system has failed to deliver urban consolidation, and the supply of diverse and affordable housing to meet the needs of our growing population[1].

I think there needs to be a greater emphasis on the importance of metropolitan policies in relation to urban consolidation, housing diversity, and affordability. I do not say that neighbourhood character is of less importance, rather I say that in each decision consolidation diversity and affordability need to be at the forefront of our thinking, and not merely a background hum.

1. It is our role as the decision maker in this process to give effect to policy as a whole, with significant weight to be given to the achievement of urban consolidation in a location such as this, where policy clearly seeks to achieve a more intense housing form.
2. The second relevant policy theme is one of respect for neighbourhood character. That is relevant here as policy seeks to:

Require development to respond to its context in terms of urban character, cultural heritage, natural features, surrounding landscape and climate.[11]

Require development within Yarra's activity centres to respect and not dominate existing built form.

Require new development within an activity centre to consider the context of the whole centre recognising that activity centres may consist of subprecincts, each of which may have a different land use and built form character.[12]

1. The policy intent of achieving respect for neighbourhood character is not a simple concept in this context. The existing activity centre is characterised by low scale development, of one and two storeys in height, whereas the Yarra Planning Scheme as a whole is seeking a far more intense, and thus higher, built form. Therefore the character that is sought to be respected in terms of height is the likely future character of the surrounding precinct. That does not mean that the existing neighbourhood character is to be ignored. To the contrary, the existing character is an important guide in matters such as podium height and scale, presentation of active frontages, the use of colours and materials, and how to deal with the location and design of site services. However insofar as height is concerned we do not find that policy as a whole is seeking an outcome that is reflective of the existing scale of development within this activity centre.
2. The third relevant policy theme is one of protection of heritage places. We have more to say about this as a separate heritage analysis below. However two aspects are worth identifying at this point of our assessment. Firstly, that policy clearly and unambiguously seeks to protect places of heritage significance, as is clear from the following policy references:

Encourage appropriate development that respects places with identified heritage values and creates a worthy legacy for future generations.[13]

Protect buildings, streetscapes and precincts of heritage significance from the visual intrusion of built form both within places and from adjoining areas.[14]

1. The second aspect is that the review site is not a contributory element in this heritage precinct, and does not adjoin any contributory or important elements. In the context of a location identified for the achievement of significant urban consolidation, and where most of the activity centre is affected by contributory or important heritage elements, that this site is not so affected speaks volumes of the opportunity that the review site presents.
2. As a result of this policy analysis we find that a development of some scale is supported by policy, and that a building of eight storeys in height, as is before us, is an appropriate response to that policy guidance.

Will the proposal affect the significance of the heritage place?

1. Ms Marcus for the Council, supported by the evidence of Mr Trethowan, submitted that the review site should provide a transition in scale between the heritage precinct that applies to the review site and the land to the south-west, and the 'opportunity sites' that exist to the north-east of the review site. As a result of this approach, it is the evidence of Mr Trethowan that an appropriate scale on the review site is six storeys.
2. The Council also circulated evidence from Ms Riddett, however did not call her to give evidence due to her absence from the country on holidays. It is the opinion of Ms Riddett that the proposed development was not an appropriate response to the setting of the former United Kingdom Hotel, and should be moderated in scale and architectural treatment so as to appear as an appropriate backdrop to this important landmark building.
3. The residents supported these submissions, and sought a far more sensitive response on the site in response to the site's location within a heritage overlay.

1. The land sits within Heritage Overlay 330, which is a precinct based heritage overlay applying to the Queens Parade Precinct. The Statement of Significance for this precinct is multi-faceted, and identifies both the wide boulevard and the Victorian and Edwardian buildings that are found in other parts of this precinct further away from the review site. The part of the Statement of Significance that is relevant to the review site is:

As a good representation of building styles from the mid-19th century to the late 1930s, enhanced by prominent landmarks such as the former banks, St.John's Catholic Church complex, and the United Kingdom Hotel, the latter two being primary foci in the precinct.

1. The site is located at the very north-eastern end of the heritage precinct as it applies to properties on the south-eastern side of Queens Parade. As such the properties further to the north-east along Queens Parade are located outside of the heritage overlay. The building on the review site is non-contributory, and no one at the hearing opposed its demolition. The building on the opposite side of Dummett Crescent from the review site is also non-contributory, which means that the review site neither contains nor adjoins any contributory or important heritage elements.
2. There are two nearby important heritage buildings. The closest is the former Clifton Motors site at 205-211 Queens Parade, and is a moderne (art deco) facade added to an earlier building. The facade was designed by J H Wardrop, a noted architect of this style of building. It presents to the streetscape with a two storey facade and a centrally positioned iconic art deco finned tower.
3. The second nearby heritage building, and clearly the most important of the two, is the former United Kingdom Hotel at 199 Queens Parade. It is listed on the Victorian Heritage Register, and within its own site specific heritage overlay under the Yarra Planning Scheme. In its Statement of Significance, and during the course of the hearing, the former United Kingdom Hotel was described as 'spectacular,' 'remarkable' and 'possibly Victoria's most exquisite and intact example of the Jazz Moderne style of architecture.' It was also designed by J H Wardrop. Despite its location further away from the review site, at a distance of some 60 metres, it was the impact of the proposed development as a backdrop to views to the United Kingdom Hotel which most concerned those parties opposing the proposed development.
4. Having regard to all of the matters which were put to us, we find that this proposed development will not detrimentally affect the significance of the heritage place. We have come to this finding for the following reasons.
5. Firstly clearly the proposed demolition is of no concern, as no heritage fabric will be lost.
6. Secondly, the proposed building will be read within a streetscape that is far from intact. In fact, in this part of the Queens Parade streetscape between Hoddle Street and Heidelberg Road, there are only two heritage properties, neither of which adjoin the review site. Therefore this is clearly not a streetscape with a consistent heritage character, nor a consistent period of construction. Further, despite the boundaries of the Heritage Overlay, the properties on the north-eastern side of Dummett Crescent[15] read as a separate collection of semi-warehouse or industrial buildings on larger allotments, which have little to do in character terms with the finer grain development on the heritage sites and those that immediately abut them. We find that this context 'opens the door' for a more robust development on the review site.
7. The proposed building has responded to these two nearby heritage properties by proposing a podium or street wall height of two storeys, which relates to the scale of the nearby heritage properties. What happens above that podium height will be very different to the nearby heritage properties, regardless of whether a scale of four, six or eight storeys is adopted.
8. Thirdly, this is not the first approval for a taller building in this precinct. We note that the site at 6-12 Dummett Crescent has been granted a permit for a four or five storey development.[16] We consider that this scale of building, immediately behind the Clifton Motors building, is an indicator that buildings of higher scale can reasonably be expected in this precinct. The review site's separation from a heritage building provides an opportunity for a further increase in height over that nearby approval.
9. Fourthly, the building will clearly be read as a contemporary piece of architecture that could not be confused for a heritage building. Much criticism was made of the façade composition, of both the podium and tower elements. Those that criticised the podium were concerned at to its dark colour, and how this does not draw any influence or reference from the design elements and multicoloured bricks used in the nearby heritage buildings. We think this proposal is the appropriate response, as the dark colour and modern simple lines of the proposed podium will more effectively highlight the detailed façade and colours of the two heritage buildings. We note that a similarly dark façade has been employed, to some success, on the more contemporary façade to the 'Stakehouse' building which is sited between the two nearby heritage properties.
10. A number of criticisms were made about the proposed tower façade composition, including what was described as a 'white 1200 by 300 glazed tile rain screen,' which seeks to emphasise every second balcony treatment in a way that attempts the disguise the overall height of the tower. This was criticised as being a too simplified façade compared to the intricate detailing on the heritage buildings. Also the light colour of the white tiles used in this detailing was criticised as detracting from the prominence of the heritage buildings, when viewed together. We agree with this criticism, though only in part. We consider that the contemporary nature of the architecture is an appropriate way to distinguish this new building from the nearby heritage buildings, and as a result ensure that the heritage buildings are recognised for the level of importance they hold in this precinct.
11. However we agree that the extent of white tiling, especially to the south-west elevation facing Dummett Crescent sought to draw the eye unnecessarily to this building, when the more intricate and important heritage buildings should be the more interesting and prominent built forms. During the course of the hearing the Applicant for Review prepared and circulated options for amended façade treatments to the tower element to deal with this criticism. All parties had an adequate opportunity to review these options, and put questions to the witnesses being called by the Applicant for Review. We find that Option 4 as prepared by the Applicant for Review presents the most appropriate way of softening the façade composition. We will adopt Option 4 in the conditions.
12. Lastly, the building is sufficiently separated from the important heritage assets so as to not impact upon their setting or appreciation. In relation to the Clifton Motors building, we are satisfied that the art deco finned tower will continue to be a recognisable and striking element in this streetscape, and will not be 'lost' amongst the tall buildings proposed here and expected on other sites further to the north-east.
13. In relation to the former United Kingdom Hotel, the following factors have weighed heavily on our consideration. The former United Kingdom Hotel presents to the corner of Queens Parade and Heidelberg Road, a location that ensures that it will always be prominent in the public realm and read for its important architecture. What happens well behind this façade will not, in our view, decrease its prominence to this corner, or its significance either as a single building or in the broader precinct. The fact that the proposed development will be set some 95 metres behind this main façade is a more than adequate separation, in our view.
14. Further we note that the main façade of the former United Kingdom Hotel is not clearly viewed at mid to long range views from front on. That is because the façade faces a reserve, which has been heavily planted out and which hides front on views of the main façade, particularly when the deciduous trees are in leaf. As such the building is more often viewed, except when in very close range, at an angle to the main façade. As a result of these angled views, the proposed building will not be read in mid to long range views behind the main façade of the former United Kingdom Hotel. Further, in close range views the former United Kingdom Hotel façade will dominate, and some glimpses of a taller building, located well behind, may be seen. For these reasons we are of the opinion that this proposed development with the recommended change will not present an unreasonable backdrop to views to the former United Kingdom Hotel.

Is the design of the proposal responsive to the surrounding physical context?

1. It is relevant to note that the submissions from parties about the proposal's fit with the surrounding physical context could not be separated from their submissions about the heritage precinct. That is, the assessment we are to undertake about context is heavily influenced by, and cannot be separated from, the heritage considerations we have already undertaken.
2. Council raised some concerns with whether the proposed development responded appropriately to the development opportunity of the site to the north-east of the review site. They also raised concerns regarding the visual prominence of the tower as compared to the podium element.

1. As we have set out in our policy analysis, the review site is located such that it receives significant policy support for the achievement of urban consolidation. While the review site is located in a Neighbourhood Activity Centre, and therefore at the lowest rung of the activity centre hierarchy, it nonetheless is highly accessible to a range of public transport options, and has no nearby sensitive interfaces, such as residential properties. Further the site is fairly large, and sits within a collection of similarly sized properties, some of which are likely to also be redeveloped in the short to medium term.
2. We note the local policy at Clause 21.05-2 which seeks that sites within activity centres be redeveloped at generally no more than 5-6 storeys in height, unless specific benefits are demonstrated. Some possible benefits that would justify an increase in height are listed, but the list is not exhaustive of the possible benefits that could justify additional height over the policy preference for 5-6 storeys. In this case we find that a height of eight storeys is consistent with this policy guidance. Specifically the benefit we identify to justify the increased height in policy terms, is the ability to achieve significant urban consolidation in a location where:
   1. A combination of physical attributes result in a high level of policy support for higher density housing, those including the proximity of a range of public transport and an activity centre location on a large unencumbered site; and,
   2. There will be no off-site amenity impacts due to the nature of the surrounding land uses. We consider the complete absence of off-site impacts (such as visual bulk, overlooking and overshadowing) to be rare in this municipality given the common occurrence of activity centres in the form of strip shopping centres immediately abutting a residential interface, and the frequency of shop top housing.
3. We further find that the proposed scale and design of the building will sit comfortably within this context. We agree with the residents that this will undoubtedly be the tallest building in this neighbourhood by a fair margin. However we do not see the height alone as a relevant criticism of this proposal. Instead, in the context of a planning framework that encourages urban consolidation, particularly within activity centres, there needs to be some adverse consequences as result of the proposed height for us to find that it is unreasonable.
4. A number of residents were critical of the height on the basis that they will see the building, either from the front of their dwellings for those that reside along Queens Parade, or from other locations in the nearby residential neighbourhood. The fact that this building will be seen is not an inappropriate outcome. Instead we need to find that the view to the built form will be offensive or inappropriate. Such views will be at a distance of at least 60 metres, being the width of Queens Parade. Further, a busy main road, with street trees, overhead tram lines and a fair degree of traffic will separate the review site from the nearest residential properties. At a distance of 60 metres, a building of 30 metres in height will be visible. However this is not a dominating element at this distance. It is certainly a tall structure, but one that will not appear as overcrowding the streetscape, or too tall for its urban environment. Such a view from this distance will be to a tall building, but not one that we consider will unreasonably dominate any residential property.
5. In response to the Council's criticism of the prominence of the tower design, save for the façade change we have already supported, we consider the overall design of both the podium and the tower to be appropriate. We do agree with the Council's assessment that on this building the tower will be the prominent visual element. However we do not agree that that is an inappropriate outcome. For the reasons we have already outlined, an eight storey building is appropriate and supported by policy, and a two storey podium is an appropriate response the scale of the important heritage buildings in the heritage overlay in close proximity. That means that the building will necessarily consist of a tower element that is three times taller than the podium, and which will be, regardless of the façade treatment, the most prominent element of the proposed building. We do not consider that to be an unreasonable outcome in this activity centre context, having regarding to the relevant policy guidance.
6. The building's relationship to the properties to the south-west is essentially its relationship to the heritage overlay, which we have already assessed and found to be appropriate.
7. The building presents a side setback to the north-east boundary of 3 metres. None of the proposed apartments have their sole aspect to the north-east boundary. Rather the apartments face either to the front or rear of the site, and to the side boundary are a series of windows to bedrooms and one window on each floor to a living area, which is a secondary source of light for that area. As a result, we consider that the proposed development is an appropriate response to the future development site to the north-east, and does not limit the development potential of that adjoining site. We see the adjoining site as retaining a range of development options, in terms of setbacks to a tower element.

Will there be any unreasonable off-site amenity impacts?

1. We note that no matters of off site amenity impacts by way of overlooking or overshadowing were raised, due to the absence of any residential property near to the review site. We also note that we have already addressed concerns relating to the off-site impact of building bulk separately.
2. Mr Hodder in his submission identified the quiet nature of this neighbourhood late at night when the public transport ceased, and raised concern about the noise impacts from the proposed development. What is before us is a mix of uses. The proposed café and retail premises will likely operate in a manner similar to the other retail floorspace along this part of Queens Parade. Further, the noise from any music and from plant and equipment is regulated by EPA noise standards. As a result we do not anticipate any unreasonable noise impacts from these land uses.
3. The proposed 57 apartments will inject an increased amount of activity into this precinct. However we have no reason to form the view that this increased activity will result in an unreasonable level of noise. The proposed development will result in an additional 24 vehicle movements in the peak hour, this on a road network that carries thousands of vehicles. The increase in traffic will be unperceivable to Queens Parade. While there will be more residents using the road network as pedestrians, this will not likely create unreasonable noise impacts, given that they will be local residents themselves. For these reasons we don't find that the proposed development is likely to create unreasonable noise impacts for the existing residents.

Is an appropriate level of internal amenity achieved?

1. The Council raised concerns with the acoustic amenity to be enjoyed by residents in the rear facing apartments on the first and second floors who will be near to an elevated on ramp from Hoddle Street to Heidelberg Road. The concerns raised were in relation to the standard to be applied to acoustic treatment of the building, not as a ground on which the proposal should be refused the grant of a permit.
2. The elevated on-ramp is located approximately 2.5 metres below the floor level of the proposed first floor apartments, and approximately 5 metres from the rear boundary of the review site. We are satisfied, based on the submissions and evidence heard, that the elevated on-ramp is sufficiently separated from the first floor apartments such that head light glare and visual privacy will not be unreasonable.
3. In relation to acoustics, our deliberations on this matter has not been assisted by the fact that no acoustic evidence was called, and no written submissions made by either party on the acoustic implications of the access ramp to the proposed apartments. In fact this matter only gained attention from the parties in a discussion regarding conditions at the conclusion of the hearing.
4. We were presented with different positions from the Council and the Applicant for review, in respect of the standard of noise attenuation that should be achieved within the apartments. The Council wants to impose a condition requiring the achievement of Leq 40dBA during the day and Leq 35dBA during the night time period. The Applicant for Review sought to have both of these noise limits increased by 5dBA. The difference in position is a matter of interpretation of the relevant Australian Standard, which sets both 'maximum' and 'satisfactory' noise levels.
5. We have decided to adopt the Applicant's preferred noise limits, for the following reasons. Firstly, we note that the 'maximum' noise levels are those that signify, "the level of noise above which most people occupying the space start to become dissatisfied." We interpret this to mean that noise levels at and below these maximum levels are a level at which most people are satisfied. We find some correlation between that outcome, and the guidance provided by the Yarra Planning Scheme that we should seek to achieve outcomes that are reasonable and appropriate.
6. Secondly, we note that the Tribunal has recently applied standards for dwellings near train lines of 40dBA in bedrooms and 50dBA in living rooms.[17] We appreciate that in this case we are not dealing with an adjacent railway line. However we draw comfort that the noise levels sought by the Applicant have previously been found to be an appropriate standard of noise internally within an apartment adjacent to an external noise source. In short we consider that the Applicant's preferred standards of 45dBA during the day and 40dBA during the night to be an appropriate reflection of the standards adopted by the Tribunal previously in similar decisions.
7. Thirdly, one of the policy objectives is the achievement of affordable housing. While we are not suggesting that these apartments will be available to people who otherwise would be shut out of the housing market, we are cognisant of the need to ensure housing can remain affordable for as much of the population as possible. Therefore we are not inclined to require an onerous set of acoustic standards for an apartment development, unless a party can convince this Tribunal that the standard being sought is appropriate and reasonable. Ultimately we have not been satisfied that the Council's suggested noise limits are reasonable.
8. In relation to the noise that will be experienced on the balcony spaces, we agree with the suggestion put to us by Mr Biles that the balconies to levels 1 and 2 could be enclosed by glazing, so as to increase their amenity level. We will require such a change by way of a condition.
9. None of the submitters raised any other concern with the level of internal amenity that will be achieved with the proposed development. We find that the proposed development will largely achieve an appropriate level of internal amenity having regard to:

1. The sizes of the apartments and balconies; 2. The excellent orientation available to a number of the apartments;

1. The convenient basement car parking that is free from the use of car stackers;

1. The individual storage areas available for each apartment within the basement; 2. The dimensions and locations of the foyer areas and lift lobbies; and, 3. The location of the review site within an activity centre and near to a range of public transport options.
2. We have one concern in that balconies to Apartments 4 & 5 on each of levels 3-7 inclusive will be located within 3 metres of the adjoining property to the north-east. As the adjoining property is a likely redevelopment site, this will create potentially some internal amenity issues if and when the adjoining property is developed. We therefore consider it appropriate for these balconies to be setback 4.5 metres from the north-eastern boundary of the site, to provide an appropriate separation to any future window or balcony on the adjoining property to the north-east. We understand that this may require some alteration to the size of the internal living areas for each of the affected apartments, in order to maintain an eight square metre balcony for each apartment.

Does the proposal appropriately provide for car parking and traffic movements?

1. Yarra City Council is satisfied in relation to the number of car parking spaces proposed to be provided on site, the design and layout of those spaces, and the traffic movements to and from the site.
2. None of the other parties raised any concern in relation to the design and layout of the car parking area, or the likely traffic movements. A number of the residents attested to the difficulty they have in finding car parking on the north-western side of Queens Parade, and opposed the reduction of the standard car parking requirement on the review site.

1. Car parking and traffic evidence was given by Mr Walsh. It is his evidence that while the proposed development has a shortfall of 21 car parking spaces when compared to the requirements under Clause 52.06, an empirical assessment reveals a likely actual shortfall of fourteen car parking spaces. That is, it is anticipated that, at peak demand, this development will generate fourteen cars looking for car parking in the surrounding streets. We accept this empirical analysis as a likely assessment of the actual parking demand, particularly those created by visitors to the residential apartments.
2. Mr Walsh presented data from a range of car parking surveys undertaken of the area surrounding the review site. In the latest surveys, conducted in early September this year, the survey area was located solely on the southern side of Queens Parade, consisting of the service road, Dummett Crescent and the road on the northern side of Mayors Park. The surveys, which were conducted on a Wednesday, Friday and Saturday (including Friday and Saturday nights) revealed at least 62 vacant spaces available in the surveyed area. On Friday and Saturday nights, when most visitors would likely be in attendance, there was at least 101 car parking spaces available at all times.
3. The residents attested to their difficulty in finding car parking on the northern side of Queens Parade, and the Tribunal does not doubt that car parking in that area is under high demand. However, the car parking surveys adequately demonstrate that the off-street car parking generated by this proposed development will be able to be met by available car parking on the southern side of Queens Parade. Further, a number of the residents who made submissions stated that they did not look to the southern side of Queens Parade for car parking, due to the awkwardness in crossing Queens Parade. For similar reasons we consider that visitors to this development are unlikely to seek car parking on the northern side of Queens Parade, particularly given the ample provision of available car parking on the southern side.
4. Some of the residents submitted that apartments will likely generate more than one car parking space per apartment. In our decision making, we need to be guided by the provisions of the Yarra Planning Scheme which sets a standard requirement of one car parking space for every one and two bedroom apartment. We cannot require, in this instance, a higher rate of resident car parking than that set out in the Yarra Planning Scheme.
5. For these reasons we consider it appropriate to allow the partial waiver of car parking as sought by the Applicant for Review.
6. Finally, some residents in their statement of grounds raised concern with the non-provision of a loading bay within the development. A loading bay is required under Clause 52.07 of the Yarra Planning Scheme for the retail premise and the food and drink premises. A permit is being sought to waive that requirement. Mr Walsh supports the waiver of a loading bay on the basis of the infrequent deliveries to two relatively small tenancies, and the existing on-street provision of a loading bay in the service road in front of the review site. We agree with Mr Walsh that the existing on-street provision of a loading bay is sufficient, and more than capable of handling the limited deliveries expected to the retail premises within the proposed development. For this reason we will waive the requirement for an on-site loading bay.

1. A number of other matters about permit conditions were raised by the parties. With respect to those matters, other than those already addressed above, we summarise our conclusions as follows:
   1. The Council sought some subtle changes to the ground floor treatment of the proposed development, namely through an increased height and width to the proposed canopy over the footpath, and a change to the design to the pillars in the forecourt. We are not persuaded that either of these changes are required to facilitate an appropriate or reasonable development of the review site. Firstly, this is not a precinct where weather protection is commonly provided to the footpaths. Given the nearby presence of the two heritage buildings, that is not likely to change at least in respect of properties to the south-west of the review site. We consider that the approach adopted here, of a full width promenade with some cantilevered canopies over the footpath, will provide an appropriate level of weather protection to the public realm. Secondly, we consider that the existing design of the canopies is integral to the remainder of the façade, and that the proposed height clearance that scales at 3.3 metres will ensure that the forecourt to this building does not appear too enclosed. Lastly, we agree with the safety issue raised by Council, and agree that the potential 'hiding spot' at the rear of the pillars in the forecourt should be filled in.
   2. The treatment of the pavement in the forecourt was an issue raised during the course of the hearing, alongside a question of whether it should match the finish of the adjacent footpath. In the end, we consider it not necessary that both treatments match, particularly given we understand that Council has a preference for an asphalt finish in public areas. We will set a condition requiring the finish of the forecourt to be specified.

1. For the forgoing reasons the decision of the Responsible Authority will be set aside.

The demolition of the existing building and construction of a mixed use building, use of the land for a food and drink premises (café) and a retail premises, reduction of the standard car parking requirement and waiver of the loading bay requirement in accordance with the endorsed plans.

1. Before the development starts, amended plans and documents 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 VCAT plans but further modified to show:

1. The tower façade amended to reflect Option 4 as detailed in the perspectives prepared by Baldasso Cortesse and dated September 2013; 2. The provision of openable glazing enclosing the balcony spaces to the south-east facing apartments on levels one and two.

1. The pillars at ground floor (within the front setback) having the rear concave indent filled in (solid);

1. A notation identifying the type of finish to the pavement within the front ground level forecourt area; 2. A setback of 4.5 metres to the balconies for Apartments 4 and 5 on levels 3-7 inclusive, to be achieved while maintaining a minimum 8 square metre balcony size for each of these apartments; 3. the specification and location of all proposed external plant and equipment (including roof top plant and equipment, car park ventilation and individual air conditioning and hot water units) with all plant and equipment screened to prevent views from the street; 4. all windows acoustically treated to ameliorate traffic noise; 5. plans and elevations containing details of the acoustic treatment to windows; 6. all acoustic treatments/works required under condition 7; 7. any relevant changes as a result of the Sustainability Management Plan approved by Council at condition 13 of the permit; 8. a car parking allocation schedule confirming 57 on-site car parking spaces are provided; and

1. an updated schedule of all external materials and finishes (including materials samples, colours and coloured elevations/perspectives). The schedule must show the materials, colour, finish and application methods (where relevant) of all external walls, roof, fascias, window frames, glazing types, cladding, doors and fences. The schedule of materials and finishes should have regard to methods to discourage graffiti to the building.
2. All development must accord with the endorsed plans. Any alterations must be approved in writing by the Responsible Authority.
3. Floor levels shown on the endorsed plans must not be altered or modified without written consent of the Responsible Authority.
4. Prior to completion of the development, all new on-boundary walls must be cleaned and finished to the satisfaction of the Responsible Authority.
5. Privacy screens as required in accordance with the endorsed plans must be installed prior to occupation of the building to the satisfaction of the Responsible Authority and maintained to the satisfaction of the Responsible Authority thereafter.
6. The owner of the land must retain Baldasso Cortese Architects to complete the design and provide architectural oversight of the delivery of the detailed design as shown in the endorsed plans and endorsed schedule of materials and finishes during the construction unless with the prior written approval of the Responsible Authority.
7. Before the plans are endorsed, an Acoustic Report to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. The report must be prepared by a suitably qualified acoustic engineer and show how the requirements of the State Environment Protection Policy (Control of Noise from Commerce, Industry and Trade), No. N-1 and any other relevant Australian Standards will be met and prescribe the form of acoustic treatment, as necessary to:

1. protect dwellings from vehicle and tram noise; 2. protect dwellings with interfaces to commercial tenancies from associated commercial noise sources including, loading (including reversing beepers), waste collection and plant and equipment;

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

1. control structure borne sound to reduce vibration from mechanical equipment, car lifts and transformers.
2. The Acoustic Report must assess noise emanating from the adjoining roads in accordance with the methodologies and from the same points as assessed in the Watson Moss Growcott Acoustics Pty Ltd report submitted with the application dated October 2012.
3. The Acoustic Report must provide noise measurements and demonstrate whether the proposed acoustic treatment achieves an average day time noise level of Leq 45dBA and average night time noise level of Leq 40 dBA or, if not, what additional works are required to achieve these average day and night time noise levels.
4. Any additional works specified in the Acoustic Report must be undertaken before the development is completed and thereafter maintained to the satisfaction of the Responsible Authority.
5. Within two months of occupation of the building, an updated Acoustic Report prepared by a suitably qualified acoustic engineer to the satisfaction of the Responsible Authority must be submitted to the Responsible Authority demonstrating that an average day time noise level of Leq 45dBA and average night time noise level of Leq 40 dBA has been achieved or, if not, what additional works are required.
6. Any additional works specified in the updated acoustic report must be undertaken within a reasonable time and thereafter maintained to the satisfaction of the Responsible Authority.
7. Before the plans are endorsed, a Sustainability Management Plan prepared by a suitably qualified professional to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. Once approved, the plan will be endorsed and will then form part of the permit. The plan must outline the development's sustainable design initiatives and specifically address/include:

1. confirmation of the capacity of the rainwater tank and details of re-use onsite for toilet flushing for the retail and residential components; 2. higher efficiency heating and cooling equipment for the dwellings with details of the heat recovery system; and

1. the provision of sun screening to the west-facing glazing.
2. Before any part of the development is occupied, a Car Parking Management Plan prepared by an suitably qualified traffic engineer to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the plan will be endorsed and form part of this permit. The plan must address:
   1. an internal signage plan clearly distinguishing permanent parking areas from commercial parking areas, any disabled spaces and height clearances.
3. Before any part of the development is occupied, the Car Parking Management Plan must be implemented to the satisfaction of the Responsible Authority. No alterations may be made without the prior written approval of the Responsible Authority.
4. Except with the further written consent of the Responsible Authority, the food and drink premises (café) use may only operate between the hours of 6am to 6pm, 7 days per week.
5. Alarms associated with the commercial premises must be directly connected to a security service and must not produce unreasonable noise beyond the premises.
6. The development and use must be managed so that the amenity of the area is not detrimentally affected including through:

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

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

at all times to the satisfaction of the Responsible Authority.

1. All buildings must be maintained in good order and appearance to the satisfaction of the Responsible Authority.
2. Noise emanating from the development, including plant and other equipment, must comply with the State Environment Protection Policy (Control of Noise from Commerce, Industry and Trade), No. N-1.
3. Before the development is occupied, the area set aside for the parking of vehicles, together with the associated access lanes as shown on the endorsed plan must:

1. be constructed to the satisfaction of the Responsible Authority; 2. thereafter be maintained to the satisfaction of the Responsible Authority;

1. be made available for such use at all times and not used for any other purpose;

1. be properly formed to such levels that it can be used in accordance with the endorsed plan; and 2. be drained and sealed with an all-weather seal coat.
2. Before the development is completed, a minimum of 26 bicycle parking spaces must be provided on the land and maintained.
3. Bicycle access must be clearly signed and marked, to the satisfaction of the Responsible Authority.
4. Before any dwelling is occupied, car parking must be allocated in accordance with the Car Parking Management Plan.
5. Drainage of the site including landscaped and pavement areas must be provided all to the satisfaction of the Responsible Authority.
6. The permit holder must apply for a Legal Point of Discharge under Regulation 610 - Stormwater Drainage of the Building Regulations 2006 from Yarra Building Services Unit.
7. All piping and ducting, other than for drainage above the ground floor of the building must be concealed.
8. Any 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 under section 200 of the Local Government Act 1989 and Regulation 610.
9. The easement drain must be accessible at all times to the satisfaction of the Responsible Authority.
10. The ramp entry to the basement must have a 40mm bullnose.
11. A 1:20 cross-sectional drawing of the ramp at the midpoint to the entrance must be submitted to the Responsible Authority showing:

1. the actual reduced level (not interpolated levels from supplication drawings) of the road profile of Dummett Crescent; 2. the lip of the channel;

1. the proposed bull-nose and high point of the ramp, with the freeboard to be determined by a hydraulics engineer.
2. The profile of Dummett Crescent and the ramp must be accurately drawn, and demonstrate that an 85th percentile vehicle can traverse over the high point of the ramp without scraping or bottoming out.
3. Any damaged road(s) and footpath(s) and other infrastructure adjacent to the development site as a result of the construction works including trenching and excavation for utility service connections must be reinstated to the satisfaction of the Responsible Authority.
4. Any portions of redundant vehicle crossing must be broken out and removed and reinstated with kerbing and paving of the surrounding area. The cost of these works must be borne by the permit holder and be undertaken to the satisfaction of the Responsible Authority.
5. Any proposed new vehicle crossings are to be constructed to the satisfaction of the Responsible Authority.
6. The development's finished floor levels for pedestrian access and car parking areas must accord with Australian Standards or otherwise to the satisfaction of the Responsible Authority.
7. Existing footpath, kerb and channel, and road pavement surface levels must not be altered unless with the approval of the Responsible Authority.
8. Upon the completion of all building works and connections for underground utility services:
   1. the footpath along the property's Queens Parade service road frontage and the concrete kerb and channel along the site's Dummett Crescent frontage must be reconstructed; and
   2. the section of Dummett Crescent immediately outside the property frontage must be re-sheeted,

all to the satisfaction of the Responsible Authority .

1. Before any development starts, a new luminaire must be provided and Dummett Crescent must have the P4 level of lighting as required by the Australian Standard AS 1158.3.1 at all times.
2. The new light must be installed prior to disconnecting the existing light affixed to the building.
3. The new luminaire must:
   1. be chosen from the CitiPower standard luminaries list for maintenance purposes; and
   2. be energy efficient.
4. Measures must be taken to ensure light spillage into windows of the existing buildings and proposed dwellings from the luminaire does not detrimentally affect the amenity of these existing and proposed places, including adjusting the location and height of luminaire and the provision of shields before the new light is installed.
5. All new lighting works are to comply with the CitiPower standard installation requirements.
6. Before the plans are endorsed, a Waste Management Plan to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. Once approved, the plan will be endorsed and will then form part of the permit. All waste collection must be undertaken in accordance with the endorsed Waste Management Plan to the satisfaction of the Responsible Authority.
7. All waste collection must be undertaken by private collection, unless otherwise agreed to in writing by the Responsible Authority.
8. Before any development starts, a Construction Management Plan must be submitted to and approved by the Responsible Authority. The plan must address:

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

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

1. containment of dust, dirt and mud within the site and method and frequency of clean up procedures in the event of build up of matter outside the site; 2. on site facilities for vehicle washing; 3. 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; 4. site security; 5. 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; 6. construction program; 7. preferred arrangements for trucks delivering to the site including delivery and unloading points and expected frequency; 8. parking facilities for construction workers;

1. measures to ensure that sub-contractors/tradespersons operate in accordance with the construction management plan;

1. an outline of requests to occupy public footpaths or roads, or anticipated disruptions to local services; 2. an emergency contact available 24 hours per day for residents and the Responsible Authority in the event of queries or problems; 3. 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; and 4. 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: 1. using lower noise work practice and equipment 2. the suitability of the site for the use of an electric crane 3. silencing all mechanical plant by the best practical means using current technology; and 4. fitting all pneumatic tools operated near a residential area with an effective silencer on their air exhaust port.
2. During construction, the following must occur:

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

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

1. the cleaning of machinery and equipment must take place on site and not on adjacent footpaths or roads; 2. all litter (including items such as cement bags, food packaging and plastic strapping) must be disposed of responsibly; and 3. all site operations must comply with the EPA Publication TG302/92.
2. The development, once commenced, must be completed to the satisfaction of the Responsible Authority.
3. Except with the written consent of the Responsible Authority, demolition or construction works must only be carried out between:
   1. 7.00 am and 6.00 pm on Monday to Friday (excluding public holidays); and
   2. 9.00 am and 3.00 pm on 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;
   • (c) the use is not commenced within four (4) years from the date of this permit.

In accordance with Section 69 of the Planning and Environment Act 1987, an application may be submitted to the responsible authority for an extension of the periods referred to in this condition.

[1] We have considered all submissions presented by the parties although we do not recite all of the contents in these reasons.

[2] Following the decision of Knox City Council v Tulcany Pty Ltd [2004] VSC 375.

[3] In accordance with Clause 10.04 of the Yarra Planning Scheme.

[4] Clause 16.01-3 of the Yarra Planning Scheme.

[5] Clause 11.01-2 of the Yarra Planning Scheme.

[6] Clause 11.04-2 of the Yarra Planning Scheme.

[7] Clause 16.01-1 of the Yarra Planning Scheme.

[8] Clause 16.01-2 of the Yarra Planning Scheme.

[9] Clause 21.05-2 of the Yarra Planning Scheme.

[11] Clause 15.01-1 of the Yarra Planning Scheme.

[12] Clause 21.05-2 of the Yarra Planning Scheme.

[13] Clause 15.03-1 of the Yarra Planning Scheme.

[14] Clause 21.05-1 of the Yarra Planning Scheme.

[15] Where it meets Queens Parade immediately adjacent to the review site.

[16] We are still confused as to whether a four or five storey building has been approved at 6-12 Dummett Crescent. The permit clearly refers to five storeys, but the unendorsed plans provided to us by Council depicts a four storey building.

[17] Richmond Icon Pty Ltd v Yarra CC [2011] VCAT 2175