1. Eleven amended plans comprising drawing numbers 0954_TP00 Rev D to 0954_TP10 Rev D (circulated on 11 November 2009) are substituted for the application plans.
2. The decision of the Responsible Authority is set aside.
3. In permit application D/133/2009 a permit is granted and directed to be issued for the land at 118-122 High Street, Northcote. The permit will allow:
   • Use and development of the land for 3 shops and 14 dwellings within a four storey building, a reduction in car parking and a waiver of loading bay requirements

in accordance with the endorsed plans and subject to the permit conditions set out in the Appendix.

Mr Nick Tweedie. He called written and oral evidence from Mr Morgan Bastone, Town Planner of Urbis Pty Ltd and Mr John Kiriakidis, Traffic Engineer of GTA Consultants.

Mr John Klarica, Town Planner of Calibre Planning Pty Ltd.

Ms Barker did not attend the hearing but I have taken into account the matters raised in her statement of grounds.

Construction of a four storey building comprising 14 one and two bedroom dwellings, 3 ground floor shops and 14 car spaces in a stacker unit.

Section 77 Planning and Environment Act 1987.

Clauses 11, 12, 14, 15, 16, 17.01, 18, 19.03, 21.04, 21.05, 22.03, 22.08, 22.10, 52.34 and 65.

I inspected the site and locality some days before the hearing and again following the hearing.

The review site is located on the south eastern corner of High and Union Streets and is occupied by a single storey building used for displaying and selling furniture. It is rectangular in shape and has an area of 452 square metres. A concrete surfaced laneway at the rear connects Union Street with Candy Street to the south and separates land in the Business 1 and Residential 1 Zones.

The neighbouring sites to the south in the Business 1 Zone are single storey commercial buildings with a three storey mixed use development on the corner of Candy Street. Other land in the Business 1 Zone is developed for a mix of commercial buildings including the tall Westgarth Cinema on the western side of High Street. Land to the east, north and south east in the Residential 1 Zone is developed for older style dwellings except that the building on the eastern side of the rear laneway is an older two storey commercial building which is intended to be converted to dwellings(s). It has undercover parking accessed off the laneway via a roller door.

A tram line is located along High Street outside the site and the nearest train station at Westgarth is located around 300 metres away to the south east. Another train station at Merri is a located around 400 metres away to the north west. The Westgarth centre includes local shops, restaurants and a cinema.

1. There is strong strategic support for more intensive development on this site. There is no doubt that a mixed use development comprising three shops with dwellings above is consistent with relevant planning policies. No heritage, design or built form overlays apply to the review site although a Heritage Overlay does apply to an extensive area to the south and west in both the Business 1 and Residential 1 Zones. Although Council and nearby residents were concerned about visual bulk, overlooking, overshadowing, traffic and parking I am satisfied that the proposal as shown on the substituted plans does not exhibit any unreasonable off site impacts.
2. Despite a recommendation from Council staff to grant a permit, Council chose to refuse it on six grounds. Three of these deal with building height, bulk and setbacks with particular reference to non compliance with Clauses 19.03 and 22.08, and the Design Guidelines for Higher Density Residential Development. One ground concerned balconies overhanging the footpaths, one concerned amenity impacts on surrounding dwellings because of daylight access, overshadowing and car parking, and the final ground concerned insufficient car parking.
3. The owners of the properties adjoining the eastern side of the laneway at the rear also objected to the proposed development. Ms Barker lives at No 1 Candy Street which has a side boundary along the laneway south east of the review site. No part of her land is directly opposite the review site but, as I later discuss, there is some potential for overlooking from balconies into her rear yard. Mr Wellwood and Ms Peterson own the two storey commercial building facing Union Street (No 96). Although zoned Residential 1 it was most recently used as Chinese medical centre and despite an intention to convert it to a dwelling(s), it does not have a residential use at present. It appears that Council has assessed potential impacts such as access to daylight and overshadowing on the basis of it being a residential use. That is incorrect as I understand no permits have been issued for a dwelling or dwellings for the building.

1. Having regard to submissions, evidence and information submitted by Council as required by Practice Note 2, I have determined that there are four key issues/questions to be considered in this appeal. These were raised with parties at the hearing and were the focus of submissions and evidence. In brief they are:

1. Is a fourth storey an acceptable built form outcome? 2. Should balconies overhang footpaths and is weather protection adequate?

1. Are off-site amenity impacts to the east and the internal amenity of dwellings within acceptable limits?

Is a fourth storey an acceptable built form outcome?

1. Council has indicated that it would support a three storey building for this site. The real issue then is whether the additional storey is an acceptable built form outcome given the site context and relevant planning scheme provisions. The other four issues are subsidiary to this point.
2. Neither Council nor any of the residents have convinced me that the concept of constructing a four storey building on this site is so out of context, so discordant and so unacceptable that it ought to be rejected. High Street is the major spine of activity within Darebin and comprises an almost continuous strip of commercial/community activities on both sides of High Street. It stretches from the Merri Creek, Westgarth at the south end to Wild/Mason Streets, Regent at the north end. It includes a variety of nodes or activity centres including the Preston Principal Activity Centre, Northcote Major Activity Centre together with smaller neighbourhood centres such as Westgarth, Thornbury and Regent.
3. Clause 22.08 is local policy for High Street Corridor Land Use and Urban Design. It identifies 16 precincts for the corridor and sets out objectives, policy and design guidelines for the precincts as a whole, together with individual policy statements and design guidelines for each precinct. The main centre of Westgarth and the review site is within Precinct 2 (Westgarth Centre). The design guidelines for all precincts are as follows:
   • Where vehicular access to the site is obtained by a laneway, the laneway is to be widened to 6 metres.
   • New development is required to have rear setbacks adjacent to residential properties in accordance with the Diagrams below. (Note that these rear setback requirements are based on an extrapolation of Standard B17 in clause 55.04-1 of the Darebin Planning Scheme.)
   • Buildings with street frontage are to maintain a street wall height of 8-10 metres with upper levels set back.
   • Where preferred building height is expressed as a number of storeys, the ground floor storey is expected to be up to 4 metres high and storeys above ground floor to be 3 metres high.
4. These guidelines are accompanied by five diagrams providing examples of setbacks and wall heights. For the review site Diagram 1 is relevant. That suggests the laneway being widened to 6 metres, boundary wall height to the laneway of 6.9 metres with floors above that setback at an angle of 45 degrees.
5. For Precinct 2, policy of particular relevance is:
   • To encourage low-rise development on larger lots north of Candy Street and at the corner of High Street and Westgarth Street, that provides new anchor attractions and residential accommodation.
6. In this context, the High Street Study Urban Design Framework and the High Street Study Precinct Guidelines, David Lock Associates & Planisphere, March 2005 (which are reference documents to Clause 22.08) suggest that low rise is 3 to 4 storeys. The design guidelines for Precinct 2 provide some quite specific statements about built form as follows:

The façade of any replacement building that extends across two or more lots to be designed to appear as multiple buildings of typical frontage width.

New buildings or extensions (other than sites identified below) are not to exceed one level above existing building floor levels, and any part of the building above the existing front façade height is to be set back behind the façade so that it does not extend more than 15% above the apparent front wall height when viewed from the footpath opposite the site in High Street. (2 diagrams are provided to demonstrate these seatbacks).

Primary pedestrian access to new development is to be from High Street.

New buildings on land north of Candy Street or at the corner of High and Westgarth Streets (Nos. 54 and 106-118 High Street, Westgarth) are not to exceed 9 metres, except that non-habitable architectural elements may extend by up to a further 3.5 metres.

• are to be built to the front and side boundaries up to a height of between 8 and 10 metres above ground level, and then set back a minimum of 1.5 metres from the front boundary per floor;
• are to include measures (such as contrasting external wall materials) to ensure any part of the building above and set back from the front wall is visually recessive.

(Underlining my emphasis -see discussion in paragraph 12)

1. Opinions differ about how these guidelines should be interpreted and what weight should be given to them in forming an opinion about the proposed four storey building on the review site. Within the Planning Scheme, Clause 22.08 is just one of the many provisions that must be considered. It is also important to recognise that the design guidelines have less weight than if they had been included in the Planning Scheme by way of a Design and Development Overlay with either mandatory of preferred building heights and setbacks. This issue was discussed by Member Wilson in a recent case at 63-65 High Street, Westgarth[1] where she made favourable reference to commentary by Member Davies for a site at 18-20 High Street, Northcote.[2] Local policy also needs to be considered in conjunction with State policies such as those encouraging more intensive development within and around activity centres. The suggestion that buildings in activity centres on land zoned Business 1 and without any built form overlays should not exceed 9 or 10 metres is hard to comprehend, particularly when considered in the light of planning controls which make reference to a 9 metre height for dwellings in the Residential 1 Zone (Clause 55).
2. It is apparent that Council's in-principle support for a three storey building and its refusal of this application for a four storey building was made almost exclusively in the context of the local policies contained in Clause 22.08. It is not the approach taken by Council's professional staff when recommending approval. The report prepared by Ms Sullivan included over 4 pages of discussion about Clause 22.08 and how the proposal responded to the provisions of that clause. I do not intend to recite all of her commentary but I found it a very useful analysis, particularly her comments about the specific design guidelines for Precinct 2 (Westgarth Central). At the hearing there was considerable debate about whether the site was included in the reference to No 106-118 High Street and hence whether the building height should not exceed 9 metres other than for architectural elements. The review site is described as 118-122 High Street and so there is question mark whether the reference in the policy to 106-118 only includes part of the site. Such an interpretation would seem quite unusual given that the site contains one building in one ownership. More relevantly, the site does not contain historic single storey buildings as do the sites at No's 106-116 and it is the only site within the centre not within a Heritage Overlay. In her report, Ms Sullivan has formed the view that the site is covered by the reference to No 106-118 High Street and concludes that the proposed development does not comply with the guideline. She then goes on to comment that despite the non-compliance with the wording of the policy that the intent of the policy is achieved.
3. Ms Sullivan also provided a detailed analysis of the proposal against Clause 22.10 which is local policy for Residential and Mixed Use Development of Four or More Storeys. Her commentary indicates a high level of compliance with this policy although permit conditions are required in some instances to achieve a higher level of compliance.
4. I have previously commented about the role of policy in paragraphs 10 and 11 and of the need to consider all relevant policies including those at State level. The approach taken by Council demonstrates why individual policy statements should not be used as a prescriptive standard and why the whole suite of relevant policies need to be taken into account and applied according to the particular proposal and the particular site context. For example, applying the setback requirements set out in Diagram 1 to the All Precincts Design Guidelines may be quite reasonable if the adjoining residential property to the east was occupied by a single storey period style dwelling. But it is not and so it is entirely reasonable to adopt a different design response because of the two storey, commercial scale building which does exist.
5. What is required then is an understanding of what the objectives are trying to achieve and an assessment of whether the proposed building achieves those objectives that are relevant. With that in mind, I consider that the five objectives listed for Precinct 2 are satisfied as follows:
   • the first dealing with retention and enhancement of the Victorian and Edwardian streetscape is of little relevance given the existing building on the site;
   • the second is achieved to the extent that the three new retail premises, unlike the existing building, replicate narrow fronted premises;
   • the third is achieved given that only 14 dwellings are proposed and they are positioned above business premises at ground level;
   • the fourth is where opinions differ as to whether the visual impact is minimised by appropriate setbacks and height. I agree with Ms Sullivan and Mr Bastone that the upper level has been recessed and that from close quarters the building will appear as a three storey building. I also note that the building shown on the substituted plans now has a flat rather than barrel roof with an overall height of 13.35 metres at High Street and 14.1 metres at the laneway compared to 14 metres to High Street and 15.07 metres to the laneway on the application plans. They are modest changes but within this site context, in a Business 1 Zone without any built form overlays, I consider this building now has a relatively modest overall height. I accept that from further away the fourth storey will be obvious - over the top of the single storey buildings when viewed along High Street, from the north along Pearl Street, and from the north west across High Street in Timmins Street but visibility in itself is not a reason to require the removal of one storey.
   • the fifth is achieved because the building is low rise (defined as 3 to 4 storeys), is on a large lot north of Candy Street, and it provides space at ground level for new anchor attractions and provides residential accommodation. Although it is much taller than the adjoining single storey buildings to the south (which because of parapets have an equivalent height of around 1.5 to 2 modern storeys) it is not out of context with the commercial building to the east, older two storey buildings within the centre (which have a modern equivalent height of around 3 storeys) or with the quite high Westgarth Cinema. I would also expect the single storey buildings to the south to be redeveloped with higher built form in response to their locational attributes and planning policies for activity centres.
6. Put in this context I do not accept that a four storey building is inappropriate and do not reject a four storey building on this site just because it has four storeys.

Should balconies overhang footpaths and is weather protection adequate?

1. At first floor a planter box overhangs the High Street footpath by 400 mm and four balconies protrude over the footpath in Union Street by 1 metre. Council seeks to have these balconies recessed back to the building line for reasons of public safety. I can understand Council's concerns about this issue but also recognise that other developments both in Darebin and elsewhere have included balconies overhanging the footpath. For example, the 3 storey building on the south east corner of High and Candy Streets has a very narrow strip of balcony overhanging the footpath, together with some architectural elements that protrude a short distance outside the property boundary.
2. In response to Council's concerns about allowing balconies over the footpaths, Mr Tweedie suggested the imposition of a Section 173 agreement and provided an example from a development approved in St Kilda Road, Melbourne. This seems a very complex approach to deal with a relatively minor aspect of the built form. I am not convinced that there is any need for amenity reasons for these balconies or planter box to protrude over the footpath and agree with Council that they should be reconfigured back to the building line. Provided they achieve a minimum width and area as required by condition1 (a) then they will provide very good, north facing outdoor living areas for residents.
3. The proposed building includes some small, discontinuous canopies over the footpath in both High and Union Streets. The proposal includes three shops at ground level including display windows along both street frontages and the site is part of an activity centre with high levels of pedestrian movement. Effective weather protection is essential for convenient and comfortable pedestrian activity. At the hearing I asked Mr Tweedie and Mr Bastone why a continuous pedestrian canopy was not being provided over the footpaths and indicated my strong preference for such a facility. They agreed that a continuous canopy could be provided, particularly along the retail frontage. Although a few buildings in the centre do not have canopies, it is my assessment that the vast majority have verandahs or canopies of between 2 and 3 metres in width, and that this building should also provide weather protection. I have therefore included a condition requiring a canopy over the footpath along High Street and eastwards along Union Street to the eastern side of the residential entrance. It is also to be integrated into the design of the building and be wide enough (2 to 3 metres) to provide effective weather protection for pedestrians using the footpaths.

Are off-site amenity impacts to the east and the internal amenity of dwellings within acceptable limits?

1. It is the properties to the east owned by Mr Wellwood/Ms Peterson (No 96 Union Street) and Ms Barker (No 1 Candy Street) which have the potential to be most affected by this development proposal. Residential properties on the other side of Union Street are well outside the range of any direct impacts such as overshadowing or overlooking. Dwellings further east in both Union Street and Candy Street are largely out of sight because of the intervening tall buildings at Nos 96 and 98 Union Street.
2. There is no doubt that a three or four storey building will result in a significant change to the western side of the property owned by Mr Wellwood and Ms Peterson. Westward and sky views over the review site will be lost and shadowing will be greater than exists at present. I stress that the 'test' for shadowing set out in the Planning Scheme is between 9am and 3pm at the Equinox (22 September) and it only applies to residential properties. Even though the adjoining building is not a dwelling, I am satisfied that any overshadowing caused by the new building is within acceptable bounds and would not refuse or amend the development because of excessive or unreasonable overshadowing. Shadow diagrams also demonstrate that there will be no unreasonable overshadowing impacts on the property at No 1 Candy Street. Although Council made reference to daylight access to habitable room windows in ground 5 of its refusal, I can find no basis for this assertion and note that the substitute plans increase the boundary setbacks to the upper floors along the eastern boundary. These setbacks are further increased by the changes I am requiring to the second and third floors.
3. The other main loss of amenity to the adjoining properties could be caused by overlooking from windows and outdoor terraces. Because of the orientation of dwellings and the position of windows and balconies there are very few opportunities for unreasonable overlooking. One of Council's draft conditions required the top floor to be setback from the eastern boundary by 3 metres for a distance of 6 metres from the south east corner of the building. The condition was proposed to improve the appearance/impacts when viewed from the property east of the lane. The substituted plans show the building wall of Dwelling 13 setback 3.2 metres but with a 1.3 metre wide terrace along the full length of the eastern side of the dwelling. The terrace is not required for outdoor living as Dwelling 13 has a large terrace on the north side leading directly off the living area. Although the terrace is higher than the windows in the building to the west, it appears that there maybe opportunities to look into the rear yard of No 1 Candy Street. While by no means a major flaw with the design, on balance I consider that the terrace should be deleted.
4. I was initially concerned about the internal amenity of Dwelling 6 located in south east corner of the building because of the possible need to provide high screening to the east facing balcony. However I accept that there is no need to screen this balcony along its eastern side as it faces the high wall of the building to the east and does not provide any opportunities for overlooking to secluded open space or habitable room windows. However, as discussed at the hearing, I am concerned that there is potential to directly overlook the rear yard of No 1 Candy Street from the southern end of the balcony. I therefore require the southern end of the balcony to Dwelling 6 to be screened to at least 1.7 metres above finished floor level. The same opportunity potentially exists from the east facing terrace of Unit 13 but as already discussed, I will require that section of terrace to be deleted entirely.

1. One of Council's grounds of refusal concerned insufficient parking. I note that Council's Transport Management and Planning Branch did not consider the car parking inadequate provided a travel plan is required as a condition of permit.
2. Fourteen on-site spaces are being provided in a triple stacker unit described as Wohr Combilift 543. I have since the hearing had an opportunity to view a promotional DVD demonstrating how the 543 unit operates. The intention is to allocate 3 spaces to the retail uses and 11 to the 14 dwellings.
3. The proposal provides a combined ground retail floor space of 207m2 and 14 dwellings. Adoption of the parking rates in Clause 52.06 would result in a requirement for 46 spaces (28 for the dwellings and 17 for the shops). It is now widely accepted that the residential parking rates in Clause 52.06 are too high and that instead the ResCode rates of one space per one/two bedroom dwelling should be used. Indeed it would be difficult to justify applying a higher parking rate to dwellings in activity centres with excellent accessibility to public transport and other services compared to dwellings less well served outside activity centres.
4. I acknowledge there is shortfall in the number of spaces on the basis of the rates included in Clause 52.06 but it is well understood that individual sites within strip shopping centres or activity centres can rarely provide sufficient parking without seriously impacting on the ability to redevelop such sites. I also note that all parking for the existing shop, even accepting the current low level of business activity, currently occurs on the street. Mr Kiriakidis estimates that 85% or 385m2 of the building is leasable floor area and he calculates that such a floor space equates to an anticipated car parking demand of 9 spaces. 17 spaces are required to be provided for the retail uses as part of this new development but only 3 are provided, leaving a shortfall of 14. Taking into account the current parking demand of 9 spaces then the net change is only 5 spaces for the retail component of the building. The Tribunal has commented many times on this issue and, in several decisions, has acknowledged the superior benefits of a centre-wide approach to parking in such locations. I also accept that the reliance on small, separated clusters of shopper parking spaces on a site-by-site basis results in an inefficient utilisation of parking, as compared to the utilisation of the more centralised parking layouts that can be provided in a whole-of-centre parking strategy.
5. I also support a slight waiver in the amount of residential parking which in effect means three of the dwellings will not have access to an on-site car space. Of the fourteen dwellings, nine have 2 bedrooms and five have one bedroom (although Council submitted that two of the single bedroom dwellings had studies, they are actually study nooks not separate rooms that could be used as bedrooms). Future residents will have excellent access to public transport. A tram operates along High Street outside the site and two train stations are within convenient walking distance. Another tram operates at some further distance away along St Georges Road and bus routes operate along Westgarth Street at the southern end of the centre. Despite Mr Wellwood expressing reservations about providing parking dispensations, I consider it quite feasible for residents to live in these dwellings and not drive or own a motor vehicle. In some parts of Melbourne that may not be a realistic expectation, even where sites are served by public transport, because of high car ownership rates or distance from a wide variety of urban facilities. My comments in VMR Property Investments Pty Ltd[3] which were referred to by Mr Tweedie are equally relevant in this case:
   1. I fully understand Mr Brygel's concerns about traffic and parking congestion and such opinions are commonly raised in Tribunal hearings by residents living in the inner parts of the metropolitan area. It may be very obvious, but it is worth noting that ever-increasing traffic volumes have been a feature of our society since motor vehicles first used our roads last century. Government policies aim to reduce our dependence on motor vehicles by, amongst other things, encouraging new development into areas already well served by public transport and by trying to better match housing and work places. I also consider that the proximity to excellent public transport services (train station and tram routes within a few minutes walk or outside the site) and commercial centres within easily tram or walking distance will encourage residents to leave their cars at home, thereby reducing traffic movements even further than would be expected if the site was more remote from such facilities. Rejecting new development on sites such as the one on the review site because of a relatively slight shortfall in on-site car parking or potential for increased traffic congestion does not mean that the traffic situation will improve or stop getting worse. Allowing new development on sites such as this, located so close to public transport and in areas where people can readily access jobs, education institutions and other facilities, may eventually encourage a slowdown in the growth of traffic volumes. I accept that it may be an optimistic and long term outcome, but it is one that planning policy seeks to achieve. It is also an outcome that has recently gained added impetus because of the higher cost of fuel and the adverse environmental impacts of utilising motor vehicles to the extent that we have become accustomed to.
6. I now want to discuss the car stacker units which are to be accessed off the rear laneway. At the hearing a number of questions were raised about how these would operate, the noise levels they may generate and whether sufficient room existed for vehicles to manoeuvre within the laneway, particularly given the location of a tall, metal 'stink pipe' on the eastern side of the laneway. As noted, I have since been provided with a promotional DVD showing how these stacker units operate. I have also been provided with autoturn assessments which demonstrate to my satisfaction that vehicles can access the stacker units.
7. Although Mr Wellwood expressed disquiet about the practical operation of the car stacker unit, the number of vehicles using the laneway and possible safety issues, I am satisfied that these sorts of units do offer a workable solution to the provision of on-site parking for constrained sites. Based on the material provided by Mr Kiriakidis I am satisfied that the operation of the unit will be convenient, user friendly, quiet in operation and that any manoeuvring or queuing of vehicles in the laneway waiting to access the unit will not cause unreasonable congestion and delays for other vehicles using the laneway. These units are becoming increasingly common across Melbourne and I have no reason to believe that there are any safety issues associated with using them, whether to people using them to park vehicles, or to passing pedestrians including children. As in all cases, motorists are expected to exercise a level of care and to take responsibility when driving a vehicle; using a car stacker unit carries the same duty of care as parking elsewhere. To that extent all the residents with vehicle access off this laneway have to exercise the same duty of care when entering or leaving their properties.
8. Given that the evidence of Mr Kiriakidis is based on the Wohr Combilift 543 stacker unit, I have included a permit condition requiring that the amended plans shown the specific stacker unit to be installed. Council's draft conditions included conditions requiring a separate pedestrian door and a convex mirror at the entrance of the laneway but I have deleted these based on discussion about them at the hearing. I note that the substituted plans include an open grill at the laneway end of the northern wall so as to allow views from the footpath into the car parking area.
9. Loading/unloading will occur from the street and is consistent with the practice adopted for both the review site and other sites within the centre. Council did not raise any objection to this aspect of the proposal.
10. The precinct wide guidelines at Clause 22.08-3 seek to widen laneways to 6 metres where vehicular access to the site is obtained by a laneway. The laneway along the rear has a width of 3.65 metres and the proposal does not include any widening to 6 metres. The widening was not identified as a requirement by Council officers and given the location of the review site at the intersection of the laneway and Union Street there seems no reason to require extra width for improved traffic movement. The laneway is relatively short in length, is wider than the 3 or 3.1 metre wide laneways located behind shops on the south side of Candy Street and behind shops on the west side of High Street, already provides access to undercover parking at No 96 Union Street and carries an estimated 10 vehicles per day. The widening is not required for reasons of visual separation between buildings on either side of the laneway. If Council is serious about widening laneways on a consistent and equitable basis as suggested in the High Street Study Urban Design Framework then it should introduce a Public Acquisition Overlay. The use of such a mechanism would ensure that laneways are progressively widened rather than relying on an ad hoc, inequitable and vague approach which is dependent on sites being redeveloped and a need established in each case.

1. In assessing Council's draft permit conditions I have made a number of changes to reflect submissions and discussion about them at the hearing. I have retained the requirement for a sustainable design statement and travel plan but have simplified the travel plan conditions by deleting the list of requirements and only requiring the plan to be submitted and approved to the satisfaction of the Responsible Authority.
2. I have deleted the 'notations' as these can be included as an attachment or covering letter to the permit.

1. Having regard to the above I will direct that a permit issue subject to the conditions set out in the Appendix.

1. Before the development starts, amended plans to the satisfaction of the Responsible Authority must be submitted to, and approved by, the Responsible Authority. The plans must be drawn to scale with dimensions and must be generally in accordance with the plans substituted by the Tribunal (eleven amended plans comprising drawing numbers 0954_TP00 Rev D to 0954_TP10 Rev D) but modified to show:
   • (a) The relocation of all balconies to within the title boundaries of the land. All balconies must still have a minimum area of 8 square metres and a minimum depth of 1.5 metres. Floors can be internally reconfigured to allow for this but setbacks from any boundary cannot decrease.
   • (b) A canopy over the footpath along High Street and along Union Street from High Street to the eastern side of the pedestrian entrance. It is to be integrated into the design of the building and be wide enough (a minimum of 2 metres) to provide effective weather protection for pedestrians using the footpath.
   • (c) The setback of the second floor from the eastern boundary increased to 1.18 metre commencing at the south east corner of the building and continuing north for 6.0 metres (at present it only extends north for 4.59 metres).
   • (d) Deletion of the eastern section of the terrace for Dwelling 13 so that it does not extend east beyond a line parallel with the eastern wall of the kitchen/bedroom 2.
   • (e) An acoustic assessment as required by Condition No. 7 of this Permit. Any necessary modifications as a result of recommendations from the acoustic assessment must be detailed on the plans.
   • (f) The provision of a Wohr Combilift 543 Stacker unit.
   • (g) That the length, width and height of bicycle facilities be provided to the satisfaction of the Responsible Authority.
   • (h) Modifications in accordance with the Sustainable Design Statement (refer to Condition No. 4 of this Permit).
   • (i) A comprehensive schedule of construction materials, external finishes and colours (including colour samples). External finishes must have low levels of reflectivity.
   • (j) Details of the location/s of potential signage for the commercial component of the building to be detailed on the elevations.
   • (k) Location and height of a single communal antenna for the apartment building, sufficient to service the needs of future occupants.

When approved, the plans will be endorsed and form part of this Permit.

1. The layout of the use and development as shown on the endorsed plans must not be altered without the prior written consent of the Responsible Authority.
2. Prior to the issue of a building permit for any building or any works authorised by this permit, a development levy must be paid to Darebin City Council. The amount of the development levy for each charge unit must be calculated in accordance with Schedule the Development Contribution Plan Overlay.
3. Before the development starts, a Sustainable Design Statement detailing sustainable design strategies to be incorporated into the development to the satisfaction of the Responsible Authority must be submitted to, and approved in writing by the Responsible Authority. The sustainable design statement must outline proposed sustainable design initiatives within the development such as (but not limited to) energy efficiency, water conservation, stormwater quality, waste management and material selection.
4. The development must be constructed in accordance with the requirements/recommendations of the Sustainable Design Statement to the satisfaction of the Responsible Authority.
5. Before the occupation of the development, a Travel Plan must be submitted to and approved in writing by the Responsible Authority. The Travel Plan must include measures to encourage dwelling occupants to use public transport, bicycles, walking and car sharing schemes as alternatives to private motor vehicle ownership and limit the number of privately owned motor vehicles by dwelling occupants to 14 motor vehicles. The Travel Plan must also detail methods by which occupiers of the shops will encourage employees and patrons to access the site via public transport, bicycles, walking and car sharing schemes as alternatives to private motor vehicles.

The Travel Plan must be implemented and maintained to the satisfaction of the Responsible Authority.

1. Before development starts, an Acoustic Assessment of the. development, to the satisfaction of the Responsible Authority, must be submitted to the Responsible Authority. The assessment must be prepared by a suitably qualified acoustic engineer and must detail recommended modifications/treatments of the development and/or the adoption of appropriate measures to ensure that:
   • (a) noise emissions associated with the operation of surrounding non-residential uses do not impact adversely on the amenity of the dwellings.
   • (b) noise emissions from the development (including, but not limited to, the operation of plant and the use of the car park) do not impact adversely on the amenity of neighbouring residential properties.

The development must be constructed in accordance with the recommendations of the Acoustic Assessment to the satisfaction of the Responsible Authority.

1. Before the occupation of the development, a plan (and, if appropriate, other associated documentation) to the satisfaction of the Responsible Authority, demonstrating the operation of the garbage and recyclables storage area must be submitted to the satisfaction of the Responsible Authority.

The plan/documentation must demonstrate the means by which garbage and recyclables will be stored on the site and must require that collection be undertaken by a private contractor Garbage and recyclables storage and collection must be undertaken in accordance with the approved plan/documentation to the satisfaction of the Responsible Authority.

1. Floor levels shown on the endorsed plans must be confirmed. The confirmation of the ground floor level must take place no later than at the time of the inspection of the subfloor of the development required under the Building Act 1993 and the Building Regulations 2006. This confirmation must be in the form of a report from a licensed land surveyor and must be submitted to the Responsible Authority no later than 7 days from the date of the sub-floor inspection. The upper, floor levels must be confirmed before a Certificate of Occupancy is issued, by a report from a licensed land surveyor submitted to the Responsible Authority.
2. All dwellings that share dividing walls and/or floors must be constructed to limit noise transmission in accordance with Part F(S) of the Building Code of Australia.
3. The design of habitable rooms of all dwellings adjacent to a road 'must limit internal noise levels, to a maximum of 45 dB(a) in accordance with relevant Australian Standards for acoustic control (including AS3671-Road Traffic):
4. Before the dwellings are occupied, an automatic external lighting system capable of illuminating the entry to each unit, access to each garage and car parking space and all pedestrian walkways must be provided on the land to the satisfaction of the Responsible Authority.
5. The external lighting must be designed, baffled and/or located to ensure that no loss of amenity is caused to adjoining and nearby land, to the satisfaction of the Responsible Authority.
6. Boundary walls facing adjoining properties must be cleaned and finished to the satisfaction of the Responsible Authority.
7. The land must be drained to the satisfaction of the Responsible Authority.
8. With the exception of guttering, rainheads and downpipes, all pipes, fixtures, fittings and vents servicing any building on the land must be concealed in service ducts or otherwise hidden from view to the satisfaction of the Responsible Authority.
9. No plant, equipment, services or architectural features other than those shown on the endorsed plans are permitted above the roof level of the building/s without the prior written consent of the Responsible Authority.
10. Provision must be made on the land for letter boxes and receptacles for newspapers to the satisfaction of the Responsible Authority.
11. Before occupation of the development, areas set aside for the parking of vehicles and access lanes as shown on the endorsed plan(s) must be:
    • (a) constructed;
    • (b) properly formed to such levels that they can be used in accordance with the plans;
    • (c) surfaced with an all weather sealcoat; and
    • (d) drained

Car spaces, access lanes and driveways shown on the endorsed plans must not be used for any other purpose.

1. Before the development is occupied, vehicular crossing(s) must be constructed to align with approved driveways to the satisfaction of the Responsible Authority. All redundant crossing(s) or crossing opening(s) must be removed and replaced with footpath, naturestrip and kerb and channel to the satisfaction of the Responsible Authority.
2. This Permit will expire if:
   • (a) The development does not start within three (3) years from the date of this Permit; or
   • (b) The development is not completed, and the use is not started within five (5) years of the date of this Permit.

The Responsible Authority may extend the times referred to if a request is made in writing before this Permit expires or within three (3) months after the expiry date.

[1] Petsinis v Darebin CC & Ors [2009] VCAT 786 - paragraphs 19 and 20

[2] Salagaras v Darebin CC [2008] VCAT 2501.

[3] VMR Property Investments Pty Ltd v Moonee Valley CC [2008] VCAT 1265