Mance Properties Pty Ltd v Darebin CC [2012] VCAT 654

1. Pursuant to section 127 and clause 64 of Schedule 1 of the Victorian Civil & Administrative Tribunal Act 1998 the permit application is amended by the substitution of the application plans with plans by Carabott Holt Architects (Drawings 04 to 21 all VCAT REV C).
2. The decision of the Responsible Authority is set aside.
3. In permit application D/75/2011 a permit is granted and directed to be issued for the land at 161-195 High Street, Preston.
4. The permit allows:
   • (a) The demolition of existing buildings;
   • (b) the development of a seven level building (including the level described as basement on the substituted plans);
   • (c) the use of the land for dwellings (including 5 home offices) and shop:
   • (d) a reduction in the required car parking; and
   • (e) a waiver of the required loading and unloading facility;

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

Mr Trent Burgess, Mr Philby Bigg, Mr Bo Li, Ms Madeline Maitri and Ms Miriam Schilling.

The proposal is to demolish existing buildings and construct an eight storey building over a "basement" level. The building is to contain 128 dwellings and one shop. Five of the dwellings will incorporate a home office on the High Street frontage.

Application under section 77 of the Planning and Environment Act 1987 to review a decision to refuse a permit.

Mr Nikas submitted that the relevant aspects of the LPPF were:

Clause 22.10 (Mixed use development of four or more storeys)

The tribunal inspected adjoining properties to the west in the company of parties and also independently inspected the wider locality.

The subject land is an irregular lot located on the north-west corner of the intersection of High and Gertrude Streets in Preston a short distance south of the Preston Principal Activity Centre (PAC). The land has a frontage to High Street of 62.45 metres, a frontage to Gertrude Street of 44.49 metres and an area of 2731 m².

1. This is an application to review the decision of the responsible authority to refuse permission for replacement of existing buildings with a primarily residential, 8 storey[1], building at 161-195 High Street, Preston. The responsible authority issued a Notice of Refusal to Grant a Permit for the reasons set out in appendix B.
2. At the commencement of the hearing Mr Peake applied to amend the permit application by the substitution of amending plans as foreshadowed by notice given in accordance with the Tribunal's practice requirements. No person opposed the amendment of the permit application in this way, and the Tribunal ordered the amendment of the permit application in accordance with Mr Peake's request.
3. The parties and the witnesses at the hearing of the application for review relied on both written and oral submissions and a number of photographs, plans and other documents were tendered to the Tribunal.

1. The subject land is occupied by the Windsor Smith factory warehouse and factory outlet, although manufacturing on the site ceased some time ago. The existing industrial buildings are built to all site boundaries other than the shared boundary with 4 Gertrude Street. The land falls by approximately 2metres from East to West.

1. The land directly abuts the residential property at 4 Gertrude Street, and is separated from the residential properties at 1/31 and 2/31 Garnet Street by a laneway. The dwelling at 4 Gertrude Street is a contributory building in the Bell Railway Heritage Precinct, the dwelling at 2/31 Garnet Street is a non-contributory, relatively modern, single-storey dwelling built to the rear of an older dwelling at 1/31 Garnet Street.
2. The Preston Principal Activity Centre is a short distance to the north. High Street proximate to the land is fronted by a mix of low scale industrial, commercial and retail buildings interspersed with more recent larger scale buildings predominantly used for residential purposes. To the west of the site is a residential area characterised by modest single-storey dwellings sited behind front gardens within tree lined streets. These dwellings were predominantly developed during the first half of the 20th century and this residential area is within the Bell Railway Heritage Precinct[2].

1. The proposal is to demolish existing buildings and construct an eight story building over a basement level. The building is to contain 128 dwellings and one shop. Five of the dwellings will incorporate a home office on the High Street frontage.
2. Viewed from High Street the building adopts a podium and tower form. The lower floor levels are built to the Street with facades featuring glazed black brickwork. The upper levels are inset from the podium and feature curvilinear balustrades finished with gold coloured metal battens.

1. This podium form extends around the corner into Gertrude Street but changes as the building is designed to step away from the Western interface with low scale residential properties. The relationship of the proposed development to its Western boundary is discussed in greater detail later in these reasons.

1. Proposed car parking is provided in part within the basement and in part at ground floor level, 129 car spaces and 19 bicycle spaces are provided. The car parking areas are accessed via a single crossover to Gertrude Street located close to the Western boundary of the land.

1. This proposal is for a large multilevel, primarily residential building in an area which is undergoing substantial change. The area is known within the planning scheme as The Junction, and is the subject of a specific planning policy at clause 22.02. The Junction area is immediately to the south of the Preston PAC, and is centred on High Street and Plenty Road between Bell Street in the North to Miller Road and Dundas Street in the South. As a consequence of these factors there is no real debate that this is a site suited to some form of more intensive and predominantly residential development.
2. Council and the respondent objectors all argue that the proposed 8 storey building is an overdevelopment of the land and in particular is too high. Mr Nikas for the Council suggested that a 5 to 6 storey development would be more appropriate, the respondent objectors at the hearing, other than Ms Maitri argued for a 4 storey building. Ms Maitri preferred a 3 storey maximum based on arguments relating to the effects of the proposed development on the Bell Railway Heritage Precinct.
3. We deal with the heritage issues first, not because they are the most decisive issues but rather because the remaining issues tend to be more closely intertwined.

1. Part of the subject land is affected by the heritage overlay (HO170). However, this is almost certainly a result of a mapping error, as the affected portion of the land is occupied by a small part of the larger complex of industrial buildings on the land, all of which have no connection to the heritage values identified in the statement of significance. The more important heritage question relates to whether or not the overall development of the entire site has sufficient regard to the heritage significance of the overlay area as a whole.
2. Ms Maitri argues that the heritage significance of the overlay area is to be understood by reference to the historic cultural context of the heritage area. For this reason, the redevelopment of nearby commercial and industrial sites raises heritage concerns because of this cultural connection. On this basis Ms Maitri expressed some reservations about this largely residential development because in her view there was inadequate reference to the commercial and industrial uses historically associated with the heritage overlay area.
3. More importantly, Ms Maitri argued that the Bell Railway Heritage Precinct was representative of suburban residential development informed by the garden suburb movement, a characteristic of which is low scale combined with a relatively unfettered outlook to the surrounding areas. In her view, the proposed building would create a boundary or barrier on the edge of the "suburb" inconsistent with the cultural context fundamental to the heritage significance of the place. Ms Maitri advocated that a building of no more than three storeys should be permitted on the land for this reason.
4. There was considerable debate at the hearing about the merits of this heritage analysis[4], however, it is not necessary for us to determine these questions. Heritage considerations are part of the overall assessment of a particular proposal against the provisions of the planning scheme. And in each case the decision maker must balance competing policies to arrive at the preferable outcome.
5. In this case, to the extent that it is important, the subject land is not affected by the relevant heritage overlay. While the impact of the proposed development of the subject land on the significance of the adjoining heritage place is a relevant consideration we think that the argument that development on the land should be restricted to a maximum of three stories disregards other important policy considerations such as those applying to The Junction area and the pattern of development already occurring on the periphery of the heritage area.

1. The core of The Junction area is to the south of the subject land and is generally south of Raglan Street. The core is centred on the triangle formed by High Street, Plenty Road and Raglan Street which contains former industrial sites without any residential interfaces. Much of this area is affected by the design and development overlays establishing preferred height limits of up to 8 stories. These DDOs were introduced into the planning scheme with clause 22.02 The Junction, as part of the implementation of The Junction Integrated Development Plan - Dec 2001.
2. Council and respondent objectors argued that the fact that the subject land and other commercial and industrial sites within The Junction area are not affected by these DDOs implies a policy that the intensity of development, more particularly the height of development, should be less than that which can be anticipated on sites affected by these DDOs which specifically contemplate higher buildings. Moreover, it is argued that it is the context of the land, in particular its sensitive interface to the West, which should determine the height and intensity development possible on the land.
3. We disagree with the first of these propositions and agree with the second. The appropriateness of the proposed development is to be determined by consideration of the physical and strategic context of the land - a proposition supported by the applicant for review.
4. Mr Nikas was unable to refer us to any clear evidence of an intention within The Junction Integrated Development Plan - Dec 2001 which would support any implied policy for a lesser intensity and height of development on sites within The Junction but not affected by the DDOs. There is no basis for speculating on the unstated intentions of those responsible for the implementation of the plan in the planning scheme. Therefore, we believe that the planning scheme must be taken as it is, there is no preferred height specified for the subject land and the preferable intensity and height of development of the land must be ascertained by contextual analysis, considering both the physical and strategic contexts.

1. We have formed the view that having regard to the physical and strategic context of the site the overall height of the proposed building should be reduced from 8 stories to 6 stories. Factors which informs our decision include:
   • the Junction area policy supports more intensive redevelopment of land within The Junction area and the subject land is a large site capable of making a significant contribution to this planning objective;
   • it is evident that buildings arising from this recent wave of redevelopment which have an interface with a sensitive residential neighbour tend to have maximum heights in the order of 5 to 6 stories - recent buildings proximate to the land have a maximum height of five stories;
   • the subject land is larger than nearby sites and importantly the east west dimension of the land is significantly larger allowing for more generous setbacks to higher elements of the proposed building - a factor supporting higher and more intensive development than found on these nearby sites;
   • the land falls from east to west, therefore any new building on the land tends to loom above adjoining dwellings to the west - a factor which militates against very intensive or high development forms;
   • the preferred height limit of six stories on the South side of Bell Street adjoining the Bell Railway Heritage Precinct to the north of Garnet Street does directly imply the possibility that a 6 story building adjoining this sensitive residential precinct is regarded as a potentially appropriate outcome.
2. During the course of the hearing we were asked to view the land from Bell station. We think that our inspection from this viewpoint confirms our conclusion that a 6 storey development of the land is an appropriate outcome in this context.
3. From this viewpoint recent developments along High Street and along Bell Street ranging from 8 to 5 stories were readily evident. The scale of this new development is quite different to the low scale character of the Bell Railway Heritage Precinct also visible in the foreground. In our view this is not a fundamentally unacceptable outcome and is an outcome supported by planning policy and the character of this built form already emerging in this cityscape.

1. Like the industrial building which it replaces, the proposed building has zero setbacks for the first four levels from High Street and Gertrude Street and from the adjoining building in the Business 2 zone to the north. From these interfaces the upper levels are inset to various degrees to create a podium tower building form, although perhaps it is a misnomer to call a six or eight storey building a tower.
2. To the west the building has a stepped interface with the residential properties at 4 Gertrude Street and 31 Garnet Street. The setbacks from this interface broadly comply, and in most cases exceed the setback envelope defined by standard B17 of ResCode[5]. At fourth floor level and above the building is setback between 16 and 19 metres from these adjoining residential properties[6].

Fig 4b - Section through the rear open space of 4 Gertrude Street[7]

Fig 4c - Section through open space of 2/31 Garnet Street

1. The design also proposes a large communal open space above the car park at ground floor level. This open space is located to the western side of the proposed building. The open space has been sited so that it coincides with the rear garden of 4 Gertrude Street. The effect of this is that for the extent of this open space, the first, second and third floor levels are also setback between 17 and 19 metres.
2. The proposed building replaces a large and, from the west, relatively imposing industrial building. Nevertheless the proposed building is larger than the building it is replacing. We acknowledge that the proposed building will undoubtedly be a very imposing structure viewed from the nearby residential properties, even at a reduced height of 6 storeys. Nevertheless we consider that the proposed building reduced in height to six storeys is both consistent with the strategic context of the land, and the emerging built form character resulting from this strategic context. The design of the western interface of the proposed building, the proposed setbacks and the siting of the communal open space, is in our view a sufficiently appropriate response to this sensitive interface.

1. The direct amenity impacts not dealt with separately in these reasons are overshadowing and overlooking. In both cases the development has been designed to achieve the ResCode standards relating to these issues, even though ResCode does not directly apply to this proposed development.
2. In relation to overshadowing, the proposed building is east of the potentially affected residential properties. Consequentially the building will overshadow residential properties to the west during the morning period. The shadow diagrams prepared in respect of the proposed development demonstrate compliance with ResCode Standard B21. We think that this is a satisfactory outcome.
3. In relation to overlooking all windows which could potentially overlook within 15 metres of the adjoining residential properties are screened in accordance with ResCode, although ResCode would only require windows within 9 metres to be screened. West facing windows or balconies beyond 15 metres of secluded open space or habitable windows are setback between 16 and 19 metres.
4. The landscape edge to the communal open space described above will filter views from these more unscreened balconies and windows. These measures comply with ResCode Standard B22, and again we are of the view that this is an appropriate outcome having regard to the encouragement for higher and more intensive residential development found within the planning scheme.

1. The sole car park entry to the proposed development is on Gertrude Street close to the west boundary on the land. Mr Fairlie estimates that the eight storey development, with the mix of land uses proposed, will generate approximately 48 vehicle movements in the peak hour.
2. Responding to concerns expressed during the permit consultation process, the permit applicant proposes that vehicles leaving the car park be required to turn left and leave Gertrude Street via High Street. Mr Fairlie assessed the impact of this additional traffic on the performance of this intersection, and concluded that the intersection would perform satisfactorily[8].
3. The respondent objectors argue that it is likely that there will be a high level of non-compliance with the left turn only requirement, and that a significant proportion of the future residents of this building will travel west in Gertrude Street to leave the area via Railway Place East and Oakover Road to St Georges Road.
4. It is undoubtedly the case that leaving the area via a signalised intersection onto St Georges Road would be for many a preferable option than using an uncontrolled intersection onto High Street. We also agree that without some form of physical barrier the left turn only restriction will be hard to enforce.
5. The first observation to make about this situation is that even if all the traffic associated with the subject development arrived at and left the site via Gertrude Street, Railway Place East and Oakover Road, traffic volumes in Gertrude Street would remain within acceptable limits, notwithstanding the very significant degree of change in what are currently very low volumes. Nevertheless, we agree that if it is possible to avoid such a significant increase in traffic volumes in a quiet local street then it is appropriate to do so.
6. There was discussion during the course of the hearing about the use of physical measures, such as a narrow median in Gertrude Street, to enforce this compulsory left turn movement. On our inspection we formed the view that a short narrow medium designed to prevent right turns out of the site may be feasible. However, this is ultimately a matter for council as the road authority, and the question of whether or not such a measure would be acceptable is complex, there is a curve in the road and there are nearby driveways and a right of way all closely associated with the proposed car park entry and exit point.
7. We propose to impose a condition (no 12) on the permit requiring the applicant to implement and fund such a traffic management measure in the event that council as road authority determines that such a measure is appropriate and should be implemented within a reasonable timeframe.

1. The proposal is for 128 dwellings and one shop. Five of the dwellings will incorporate a home office on the High Street frontage. In detail the land use mix comprises:
   • 23 one bedroom apartments;
   • 19 one bedroom apartments with study;
   • 81 two bedroom apartments;
   • 1 one bedroom apartments with home office;
   • 4 two bedroom apartments with home office; and
   • a shop with leasable area of 100 m²
2. It is proposed to provide 129 car spaces on site. Mr Fairlie proposed to allocate the available car parking as follows:
   • 30 spaces for 43 one bedroom apartments;
   • 83 car spaces for 83 two bedroom apartments;
   • 4 spaces for 2 two bedroom apartments with home offices; and
   • 2 spaces for the shop.
3. The rate of which car parking is to be provided is less than that required by clause 52.06, and less than that which would be required if the ResCode standard was applied. The applicant argues that a reduction in the required car parking is warranted because of:
   • the location of the land in relation to public transport facilities and the Preston PAC, and;
   • an empirical assessment of demand based on car ownership data from the 2006 census.
4. Respondent objectors criticised this empirical assessment, principally on the basis of the age of the census data relied on. Mr Fairlie in his evidence indicated that car ownership data for census collector districts from the 2011 census is expected to be made available shortly. The 2006 data is all that it is available at this time.
5. We accept that there have been very substantial increases in population since 2006, but this does not mean that there have been equally significant changes in car ownership of individuals and households.
6. We note that council's traffic engineers accepted the proposed car parking provision, we accept Mr Fairlie's analysis of car parking, and note that our decision in respect of the building height will in any event likely lead to an increase in the rate of which car parking is provided per dwelling.
7. The substituted plans show 19 bicycle spaces as against a planning scheme requirement of 39 spaces. At the hearing Mr Peake suggested that, in response to draft conditions 2a) and b), 20 spaces or a combination of spaces and a contribution to facilities could be provided to make up the shortfall. Our deletion of two levels will result in a reduction in the bicycle parking requirement. We therefore consider that the full quota of bicycle spaces should be provided and have included a condition - 2(b) - that bicycle parking is to be provided in accordance with the planning scheme.

1. It follows from the above reasons that it is the Tribunal's conclusion that the decision of the responsible authority should be set aside and a permit be granted.
2. In deciding the conditions to be included on the permit the Tribunal has had regard to the draft conditions provided to the Tribunal by the responsible authority and the submissions and evidence of the parties in addition to the matters which arise from these reasons.

The demolition of existing buildings, the development of a seven level building (including the level described as basement on the substituted plans), the use of the land for dwellings (including 5 home offices) and shop, a reduction in the required car parking and a waiver of the required loading and unloading facility in accordance with the endorsed plans.

1. As part of the consultant team Carabott Holt Architects or an experienced architect must be engaged to oversee the design intent and construction quality to ensure that the design and quality and the appearance of the approved building is maintained to the satisfaction of the Responsible Authority.
2. Before the development starts, amended plans must be submitted to and approved by the Responsible Authority. Three copies of the plans drawn to scale with dimensions must be provided. When approved, the plans will be endorsed and will then form part of the permit. The plans must generally in accordance with the plans by Carabott Holt Architects (Drawings 04 to 21 all VCAT REV C), but modified to show:
   • (a) A reduction in height of the building by the deletion of 2 levels between ground floor level and the seventh floor level;
   • (b) The provision of bicycle parking in accordance with the planning scheme;
   • (c) All air conditioners, plant and equipment;
   • (d) Any modifications resulting from the endorsed Environmentally Sustainable Development Management Plan (ESD Management Plan);
   • (e) Any modifications required by the Acoustic Assessment provided in accordance with condition 6;
   • (f) Sign(s) to reinforce the intention that all vehicles leaving the car park on the land must turn left into Gertrude Street; and
   • (g) A schedule of colours materials and finishes demonstrating that all vertical metal surfaces are not unreasonably reflective.
3. Before development starts:
   • (a) an arboricultural report considering any measures required during construction to protect trees within 5 metres of the land must submitted to and approved by the Responsible Authority; and
   • (b) any tree protection measures required by the approved arboricultural report must be implemented

1. Before the development starts, a Landscape Plan must be submitted to and approved by the Responsible Authority. When approved, the plan will be endorsed and will then form part of the permit. The Landscape Plan must be generally in accordance with the landscape concept plan prepared by MEMLA P/L and must incorporate:
   • (a) Semi mature canopy trees (1.5m at time of planting) adjacent to the west boundary shared with 4 Gertrude Street, Preston;
   • (b) Details of overhanging trees on adjoining properties with the genus, species, height and spread of all trees to be specified;
   • (c) A planting schedule of proposed vegetation detailing the botanical name, common name, size at maturity and quantities of all plants;
   • (d) Details of all surfaces including lawns, mulched garden beds and hard paving (such as asphalt, concrete, brick or gravel);
   • (e) Street trees within the nature strip/s adjacent to the property;
   • (f) All constructed items including retaining walls, letter boxes, garbage bin receptacles, outdoor furniture, lighting, clotheslines etc;
   • (g) An outline of the approved building/s including any basement, the location of entry doors, windows, gates and fences. An outline of buildings on adjoining land, including the location of windows and doors which face the subject site also to be shown;
   • (h) The location of both existing and proposed overhead and underground services. Conflicts of such services with the existing and proposed planting must be avoided;
   • (i) Clear graphics identifying trees (deciduous and evergreen), shrubs, groundcovers and climbers; and
   • (j) A scale, North Point and appropriate legend.

The species of all proposed plants selected must be to the satisfaction of the Responsible Authority.

1. Before the development starts, an Environmentally Sustainable Development Management Plan (ESD Management Plan) prepared by a suitably qualified professional must be submitted to and approved by the Responsible Authority.
   • (a) The ESD Management Plan must address:
     • (i) Energy Management;
     • (ii) Water Conservation and Re-use; and
     • (iii) Demolition and Construction Waste Management.
   • (b) Where appropriate, the ESD Management Plan should:
     • (i) Identify relevant statutory obligations, strategic or other documented sustainability targets or performance standards;
     • (ii) Document the means by which the appropriate target or performance will be achieved;
     • (iii) Identify responsibilities and a schedule for implementation, and ongoing management, maintenance and monitoring; and
     • (iv) Demonstrate that the design elements, technologies and operational practices that comprise the ESD Management Plan can be maintained over time.

A schedule for implementing and monitoring the ESD Management Plan must be included. The approved ESD Management Plan must be implemented 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 treatments of the development and/or the adoption of appropriate measures to ensure that noise emissions from the development (including the operation of plant) do not impact adversely on the amenity of neighbouring residential properties. This must include measures to minimise noise associated with vehicle access and the car park upon the adjoining dwellings, including:
   • (a) the height, construction and cladding of the first floor wall to the north and west of car space 47, car space 48 and their associated access aisle to minimise escaping from the car park and / or absorb noise from the car park;
   • (b) appropriate paving materials for relevant car spaces, access aisles and access ramps to minimise skidding / noise of vehicle movement;
   • (c) any other relevant measures to limit / absorb noise car noise (e.g. ground floor car park roofing materials to limit noise reflection, speed control measures etc);
   • (d) a low noise type of basement roller door; and
   • (e) the type of ventilation louvers.

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

1. Before the development starts, a Construction Management Plan (CMP) must be submitted to and approved in writing by the Responsible Authority. The CMP must include:
   • (a) hours of demolition and hours of construction;
   • (b) traffic movement of all workers' vehicles and construction vehicles;
   • (c) works timetable;
   • (d) any impacts upon adjacent roads, footpaths and the carriageway easement. Provision must be made for adequate movement and circulation of vehicles and pedestrians adjacent to the land during the construction phase;
   • (e) access routes for construction vehicles;
   • (f) proposed parking and standing locations for construction vehicles and construction workers vehicles;
   • (g) temporary fencing works;
   • (h) number of workers expected to work on the site at any time;
   • (i) methods for limiting escape of dust and litter from the land;
   • (j) a communication strategy for advising the Responsible Authority and residents of key stages/events (including their timing and duration) in the construction program of the development; and
   • (k) a liaison officer for contact by residents and the Responsible Authority in the event of relevant queries or problems experienced.

The development must be undertaken in accordance with the approved CMP to the satisfaction of the Responsible Authority.

1. Before the construction or carrying out of buildings and works in association with the use commences, either:
   • (a) A certificate of environmental audit must be issued for the land in accordance with Part IXD of the Environment Protection Act 1970, or
   • (b) An environmental auditor appointed under the Environment Protection Act 1970 must make a statement in accordance with Part IXD of that Act that the environmental conditions of the land are suitable for the use.
2. Before the development starts, a revised Waste Management Plan (WMP) to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. The WMP must be generally in accordance with the plan which accompanied the application.

The WMP must demonstrate the means by which garbage and recyclables will be stored on the site. Collection must be undertaken by a private contractor with bins collected by the contractor from the site, with no bins placed along High Street, Gertrude Street or the Right of Way for collection. Garbage and recyclables storage and collection must be undertaken in accordance with the approved WMP to the satisfaction of the Responsible Authority.

Conditions requiring action before occupation or otherwise:

1. 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 1 to the Development Contribution Plan Overlay.
2. Floor levels shown on the endorsed plans must be confirmed. The confirmation of the lowest 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.
3. If within 6 months of development commencing the responsible authority notifies the owner of the land that traffic management measures are required in the Gertrude Street road reserve to reinforce the intention that all vehicles leaving the car park on the land must turn left into Gertrude Street the owner must implement such measures to the satisfaction of the responsible authority. The measures to be implemented must be to the reasonable satisfaction of the responsible authority. The measures must be implemented prior to the occupation of the building. The measures must be implemented at the owner's cost.
4. Before the use starts, a sustainable transport display must be provided in a visually prominent location near both front entrances of the apartment entry foyer and must include public transport route maps and timetables and maps of walking and cycling routes to and from the site. The display must be regularly monitored and kept up to date to the satisfaction of the Responsible Authority.
5. Prior to the occupation of the permitted building, a car parking allocation plan must be submitted to and approved by the Responsible Authority. The plan must set out the allocation of onsite car parking to the occupants of and if appropriate visitors to the building.

The plan must not be revised without the consent of the Responsible Authority. The car parking must be used in accordance with the plan to the satisfaction of the Responsible Authority.

1. Before the dwellings are occupied, a report from the author of the ESD Management Plan approved under this permit or similarly qualified person or company, must be submitted to the Responsible Authority. The report must be to the satisfaction of the Responsible Authority and must confirm that all measures specified in the ESD Management Plan have been implemented in accordance with its requirements.
2. In the event that a statement is issued in accordance with Part IXD of the Environment Protection Act 1970, before the development is occupied all conditions of the Statement of Environmental Audit must be complied with to the satisfaction of the Responsible Authority. Written confirmation of compliance with the conditions of the Statement of Environmental Audit must be provided by a suitably qualified environmental professional.
3. If the conditions of the Statement of Environmental Audit require ongoing maintenance or monitoring, before the development is occupied the owner of the land must enter into an Agreement with the Responsible Authority under Section 173 of the Planning and Environment Act 1987 to the satisfaction of the Responsible Authority to the effect that:
   • (a) without the written consent of the Responsible Authority all conditions of the Statement of Environmental Audit issued in respect of the land will be complied with to the satisfaction of the Responsible Authority; and
   • (b) written confirmation of compliance with the conditions of the Statement of Environmental Audit must be provided by a suitably qualified environmental professional.

A memorandum of the Agreement must be entered on the Title to the common property and the owner must pay the costs of the preparation and execution of the Agreement and entry of the memorandum on Title.

1. The development as shown on the endorsed plans must not be altered without the prior written consent of the Responsible Authority.
2. The layout of the uses as shown on the endorsed plans must not be altered without the prior written consent of the Responsible Authority.
3. This Permit will expire if either:
   • (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 has 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. All external lighting must be designed, baffled and/or located to ensure that no unreasonable loss of amenity is caused to adjoining and nearby land to the satisfaction of the Responsible Authority.
2. Boundary walls must be cleaned and finished to the satisfaction of the Responsible Authority.
3. The land must be drained to the satisfaction of the Responsible Authority.
4. 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 ensure views are limited to the satisfaction of the Responsible Authority.
5. No plant, equipment, services or architectural features other than those shown on the endorsed plans or located within the roof top plant enclosure shown on the endorsed plans, are permitted above the roof level of the buildings without the prior written consent of the Responsible Authority.
6. Provision must be made on the land for letter boxes and receptacles for newspapers to the satisfaction of the Responsible Authority.
7. Disabled access to the shop must be provided to the satisfaction of the Responsible Authority and all work carried out to provide disabled access must be constructed in accordance with the relevant Australian Standards for Access and Mobility.
8. Not more than one (1) communal television antennae may be erected on the site. Individual antennae for individual dwellings/tenancies must not be erected.
9. Before the dwellings are 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.
10. All privacy screening measures shown on the endorsed plans along the building must be fixed and permanent in line with the requirements of clause 55.04-6 of the Darebin Planning Scheme to the satisfaction of the Responsible Authority.

1. Before the commencement of works, or other time agreed in writing with the Director of Public Transport, the bus stop and shelter in High Street including all associated infrastructure, must be relocated at a cost born by the permit holder to the satisfaction of the Director of Public Transport and deemed compliant the disability Discrimination Act - Disability Standards for Accessible Public transport 2002.
2. The permit holder must take all reasonable steps to ensure that disruption to bus operation along High Street is kept to a minimum during the construction of the development. Foreseen disruptions to bus operations and mitigation measures must be communicated to the Director of Public Transport fourteen days (14) prior.
3. Before the use of the land commences, a Green Travel Plan must be prepared to the satisfaction of the Responsible Authority following consultation with the Department of Transport (Public Transport Division). The Plan must be prepared by a suitably qualified person and must encourage the use of non-private vehicle transport modes by the occupiers of the land. The Plan must include the following:
   • (a) A description of the location in the context of alternate modes of transport and objectives for the Green Travel Plan;
   • (b) Outline Green Travel Plan measures for the development including, but not limited to:
     • (i) Household welcome packs - tram, train and bus timetables relevant to the local area must be included in the pack of information provided to purchasers upon a purchaser's occupation of an apartment;
     • (ii) Include a minimum of 10 by 2 hour Metcard (zone one / two) within the household welcome pack or a Myki pass (of equivalent value) and registration information;
     • (iii) Bicycle parking and facilities available on the land
     • (iv) Pedestrian routes to key destinations.
   • (c) Monitoring & review; and
4. The Green Travel Plan must not be amended without written consent of the Responsible Authority following consultation with the Department of Transport (Public Transport Division).
5. Once approved the Green Travel Plan must form part of the planning permit and any ongoing Management Plan for the land to ensure the Green Travel Plan continues to be implemented by residents / owners to the satisfaction of the Responsible Authority.

1. The height and setbacks of the development are contrary to the residential character of the area.
2. The heights and setbacks of the development will result in visual bulk impacts and will be detrimental to the amenity of adjacent properties' secluded private open spaces.
3. The development does not comply with the Clause 15.01 (Urban Environment) including the following elements of the Design Guidelines for Higher Density Residential Development (2004):
   1. Height and massing - The design does not provide sufficient graduation in building height and is contrary to the character of the area.
   2. Relationships to adjoining buildings - The design impacts detrimentally upon the amenity of adjacent dwellings' secluded private open space.
4. The development does not comply with the following objectives and design guidelines of Clause 22.10 (Residential and Mixed Use Development of 4 or More Storeys):
   1. Building Heights - The design does not provide sufficient graduation in building height and is contrary to the character of the area;
   2. Amenity Impacts - The design impacts detrimentally upon the amenity of adjacent dwellings' secluded private open space.
5. The proposal is an overdevelopment of the site through its excessive height, bulk and scale.

[1] Eight levels over a "basement", approximately 2 metres out of the ground at its western edge.

[2] Included in Heritage Overlay (HO170).

[3] Montages have a very wide angle view, images show some edge distortion and the wide angle emphasises foreground elements.

[4] Including an interesting discussion on the "garden city" versus the "garden suburb".

[6] That part of the building east of the communal open space is setback at least 18m to balconies at first floor level and above. Refer to fig 4b.

[7] The first floor dwelling closest to 4 Gertrude Street shown in this cross section is beyond the communal open space and approximately aligns with the rear boundary of 4 Gertrude Street.

[8] Mr Fairlie's SIDRA analysis demonstrates that the intersection will have a relatively low degree of saturation after development. There would need to be a very radical change in volumes used in this assessment to result in a less satisfactory outcome. Additional traffic count surveys are unlikely to reveal variability sufficient to alter this conclusion. It may be the case that at some point in the life of this intersection that 'Keep Clear' markings on High Street may be warranted.