Before the use or development commences, amended plans to the satisfaction of the responsible authority must be submitted to and approved by the responsible authority. When approved, the plans will be endorsed and will then form part of the permit. The plans must be drawn to scale with dimensions and three copies must be provided. The plans must be generally in accordance with the plans prepared by Peter L Brown Architects Pty Ltd (Job No. 0928) dated April 2011 comprising sheets TP03, TP04, TP05, TP06, TP07 and TP08 (all Revision D) but modified to include:

1. a highlight window to the southern walls of Bedroom 1 of Units 38 and 48.
2. a convex mirror at the top and bottom of the basement ramp.

Before the development starts the Sustainability Statement (ESD) prepared by Ark Resources dated 20 June 2011 must be amended to the satisfaction of the Responsible Authority and endorsed by it. Once endorsed, it will form part of the permit. The amended Sustainability Statement must include the following initiatives:

(a) be updated to reference the plans to be approved under condition 1 of the permit (i.e. providing for an additional 10 dwellings compared with the original approval);

(b) low volatile organic compound (VOC) paints to be used internally in accordance with Green Star Multi-Residential V1 criteria;

(c) rainwater harvesting system connected to apartments on levels 1 and 2 and the retail area toilets;

(d) heating and cooling to be within one star of Best Available Technology;

(e) all air-conditioning systems to use a zero ODP refrigerant;

(f) task lighting for kitchens and bathrooms providing a minimum of 300 lux at the kitchen sink, cooktop and vanity;

(g) a Building Users Guide including information relevant for building residents and management made available to the building owner and residents;

(h) no water based heat rejection system servicing the building; and

(i) extraction fans for apartment kitchens to be ducted externally.

1. The responsible authority is directed to amend the permit and issue an amended permit pursuant to section 91 of the Planning and Environment Act 1987.

Mr Scally called Mr Mark Sheppard, Urban Designer, David Lock & Associates to give expert evidence.

The applicant also relied on the written expert report of Mr Russell Fairlie, Traffic Engineer, Ratio Consultants Pty Ltd.[1]

1. In a decision with reasons dated 16 February 2011 I determined to grant a permit for a six storey mixed use development of the subject land.[2] The current application has been made by the permit holder under section 87A of the Planning and Environment Act 1987. It seeks to amend the permit to provide for a building of seven storeys in height (including 10 additional apartments and 7 additional car parking spaces), with adjustments to the condition pertaining to ESD initiatives.
2. The responsible authority's planning officer assessing the application recommended support for the amended proposal. However, the council determined that it would not support it for reasons, in summary:
   • the proposed height is excessive and would not provide an appropriate transition having regard to strategic planning for the area;
   • the proposal is not consistent with policy relating to the Brunswick Activity Centre or the objectives of the Design and Development Overlay Schedule 18; and
   • the proposal would result in a poor level of internal amenity for future occupants.
3. At the hearing, Mr Song on behalf of the responsible authority confirmed that it accepted the proposed treatment of parking and traffic in the modified proposal.[3]
4. A number of local residents and adjacent business owners objected to the amended proposal although they did not appear at the hearing. In making this decision, I have given careful consideration to the issues raised in their statements of grounds.
5. The applicant submitted that the strategic and physical context of the land reasonably supported an increase in height of one level, with a consequential increase in apartment numbers.
6. The site and its physical and policy setting remain unchanged compared with my earlier decision and I defer to my general findings about these matters.

General observations about the use of section 87A of the Planning and Environment Act 1987

1. I accept that the process by which a permit can be amended at the direction of the Tribunal soon after its original issue can be a vexed one for councils and objectors. It can be difficult to entertain incremental changes without undermining the integrity of the original decision and the process by which it was made.
2. Nevertheless, the legislation provides a legitimate opportunity to consider amendments to permits in this way, regardless of the extent of the change or the time that has passed since the original decision.
3. The Tribunal is continuing to identify the outer limits of the exercise of its discretion on a case by case basis, having regard to fairness and the need for certainty of process and outcome. One example of this is the decision of The King David School v Stonnington CC & Ors[4] where the Tribunal was reticent to intrude on a recent decision of the Minister where the changes would effectively reverse restraints placed on the use.
4. Another example that calls for particular caution is where parties agree to the issue of a permit through mediation and the section 87A process is used to depart from the agreement reached.[5] The case before me does not raise any similar issues of 'policy'.
5. Whilst I note the concerns of the objectors to the process, I am obliged to have regard to the application on its planning merits. At the same time, I need to exercise my judgement as to whether it is "appropriate"[6] to amend the permit having regard to all the circumstances.

1. The starting point is the designation of the north eastern side of Hope Street within a 'maximum' 5 storey height area within the Brunswick Structure Plan. Relevantly, the Structure Plan provides for a 'maximum' 6 storey building height south of Hope Street.
2. In my earlier decision, I expressed the view that these heights should be interpreted as preferred rather than maximum heights. They are a starting point, noting that the Structure Plan has not undergone full public consultation and scrutiny, such as by a Panel. I maintain this view, with priority to be given to the objectives of the relevant DDO.
3. I acknowledge that the site is not identified in the Structure Plan as a landmark site. Such a designation in this activity centre would normally result in buildings taller than 7 storeys, such as that constructed on the former 'Whelan the Wrecker' site further north along Breese Street.
4. In my opinion, the subject land falls short of exhibiting 'landmark' characteristics. However, there still is scope for a building of 7 storeys on a site in this location.
5. The key issue is the impact of the proposed single additional level, with an associated increase of 3 metres in height, since a six storey building has already been approved.
6. I cannot accept the submission on behalf of the responsible authority that the additional level would nullify the contrast intended between this site, surrounding buildings and the development of the Whelan site. For a start, building contrast is a function of far more elements than just height. Clearly the development of the Whelan site, with a substantial building of streamlined design is of a different scale to that proposed on the subject land, irrespective of its height. Its place in the 'hierarchy' of built form in the area is also reinforced by its setting within a broad residential complex sitting between the activity centre and Breese Street, with opportunities for through-site movement across the block.
7. There is still scope for a transition in height in both northern and southern directions from this corner site. It is apparent that this area can sustain buildings of varying heights. Recently completed development is in the order of four storeys to the north, recently approved development is in the order of five to six storeys to the east and seven storeys to the north.[7] At this stage, development to the south has a preferred height of six storeys as per the Structure Plan.
8. In my opinion, very strict consistency in terms of building height is neither achievable nor desirable, although the range of heights should be of a similar order in a complementary sense. I regard this as the essence of 'compatibility' as sought in the objective of DDO 18. I consider that a seven storey building of the design proposed on this corner location can be sustained in this context.
9. I note that a suite of design changes have been made in connection with the additional floor such as the deletion of the defined parapet and an increased emphasis on external glazed walling.
10. I consider the amended proposal to be acceptable and accept the evidence of Mr Sheppard. In summary, I find:
    • The approved proposal would exceed the preferred maximum height in the Structure Plan by 1.6 metres. The amended proposal would add 3 metres to this;
    • the additional storey does not detract from the strength or proportions of the parapet;
    • the design treatment of the upper levels of the building is sufficiently streamlined such that it is reasonably recessive in streetscape views;
    • the viewlines towards the upper levels of the building are constrained by the reasonably narrow road widths and the prospect of land opposite being redeveloped in the short to medium term with taller buildings;
    • in any event, the visual impact of the amended proposal is only minimally greater than the approved development (especially given the termination of sightlines via the balustrade from some vantage points);
    • the overshadowing of public spaces is not materially different in the amended proposal; and
    • for reasons addressed below, the development approaches best practice ESD initiatives referencing the decision guidelines of DDO18.

1. The amended proposal increases the number of apartments by 10 and the number of on-site car spaces by 7. As I mentioned earlier, the overall provision for and design of on-site parking was supported by the responsible authority's engineering and planning officers.
2. I accept the written evidence of Mr Fairlie in this case, in addition to reinforcing the comments I made in relation to traffic and parking in my earlier decision to grant a permit in the first instance.
3. In summary, I consider that the allocation of 1-2 spaces to each office and retail tenancy with 1 space for each two bedroom apartment and 1 space for 12 of the one bedroom apartments[8] is sufficient, totalling 50 spaces on site.[9] Customer parking for the retail tenancies and offices would need to be accommodated by the local street network.
4. In making this finding I have had regard to the site's location, public transport opportunities, generous bicycle parking on site, traffic generation within the centre more broadly, the Green Travel Plan (including a share car) and like matters.

1. The responsible authority emphasised that by increasing the overall height of the building by 3 metres, apartments on the lower level would experience reduced access to daylight via the internal lightwells.
2. The upper levels are reasonably well served in terms of access to daylight. The bedrooms that "borrow" light on levels 1-3 are designed to open out at the corners into the living areas that have a more direct light source and I regard this as reasonable.
3. On balance, I find the proposed internal amenity acceptable subject to one qualification. The concern particularly arises in relation to level 4 and to some extent, level 5 since these are the only bedrooms for those apartments yet are serviced by a lightwell of relatively compact dimensions.
4. Considering my earlier reasons on this issue in light of the changes sought in this application, I am not persuaded that a more fundamental redesign of the floorplates is required, say, by increasing the size of the lightwells. In my opinion, this deficiency could be reasonably overcome by the inclusion of a highlight window into the southern wall of these bedrooms to provide a sufficiently liveable space, albeit with reduced access to light.

1. The permit as issued at the direction of the Tribunal included a condition agreed to at the earlier hearing. It required, amongst other things, that the development include ESD initiatives achieving a Four Star Green Star Energy Rating. The permit holder now proposes to delete the requirement for a Four Star Green Star Energy Rating, since it regarded this as too onerous.
2. At the hearing and following discussion between the parties with the assistance of Mr Jan Talacko, Director, Ark Resources on behalf of the requestor, the parties agreed to a modified ESD condition.
3. The condition would require the submission of an updated sustainability assessment[10] to reflect the additional 10 dwellings. It would also need to include specified measures derived from the assessment of the responsible authority's ESD engineer as initiatives going part way to achieve a Four Star Green Star Rating.
4. The only council recommendations that have not been adopted in this regard are those pertaining to construction materials such as adhesives and PVC cabling and the like. In addition, I was advised that the supervision/monitoring regime proposed under the sustainability assessment was to vary from the more stringent requirement of the Green Star system.
5. I note that there are a number of specific references to ESD initiatives for higher density development in the planning scheme, including in the DDO. Ultimately, although I have some fundamental queries about the level of detail the Tribunal should descend to in drafting ESD conditions, I propose to adopt the agreed position between the parties as a pragmatic and appropriate way forward.
6. In terms of the substance of the ESD requirements, it appears to me that they focus on operational improvements that would facilitate the more sustainable ongoing use of the building.[11] To my mind, if reasonable constraints arise that prevent the full suite of Green Star initiatives from being implemented, these measures should be prioritised.

Opportunities for redevelopment of land to the east

1. I have considered the statement of grounds from the owners of the adjoining property. The concerns they raised on the last occasion gave rise to amendments to the plans before their endorsement.
2. These changes provided for more uniform, increased side setbacks to facilitate improved levels of amenity for balconies and living areas in the event that the property to the east may be developed with a building of generally comparable height.
3. I am satisfied that the taller proposal is an appropriate design response. The building floorplate for the additional level proposed adopts the same general setbacks and would not alter this balance unreasonably.

1. Having regard to urban design and strategic planning issues, I am prepared to support an increase of one storey in height for this mixed use development. I consider that internal amenity would be acceptable if certain bedrooms were modified by permit condition to facilitate increased light penetration.
2. I have also found parking and traffic to be reasonably accommodated, with suitable ESD measures resolved by agreement. I regard the interface with the adjoining property to the east as appropriate having regard to the potential for the latter to be redeveloped in future.

[1] Mr Fairlie was not called to give evidence before the Tribunal by agreement between the parties and Member Cook.

[2] Maison the Development Pty Ltd v Moreland CC & Ors [2011] VCAT 219.

[3] and that it accepted Mr Fairlie's evidence in this regard.

[4] (Red Dot) [2011] VCAT 520, a decision of Deputy President Dwyer and Member Naylor.

[5] See, for example the recent decision of Marone Pty Ltd Joint Venture v Glen Eira CC (Red Dot) [2011] VCAT 1650, a decision of Senior Member Baird.

[6] Using the terminology of section 87A.

[7] Per Blue Earth Group Pty Ltd v Moreland CC & Ors [2011] VCAT 1211, albeit in a different DDO area (Schedule 13).

[8] That is, 22 one bedroom apartments would not be provided with on site parking.

[9] As per the evidence, stackers would facilitate taller vehicles of up to 1.8 metres on both upper and lower platforms.

[10] Following on from that submitted to the responsible authority in June 2011.

[11] As opposed to materials to be used in construction.