Melbourne CC v Minister for Planning [2010] VCAT 1459

1. The decision of the Responsible Authority is varied.
   1. In permit application 20080983 a permit is granted and directed to be issued for the land at 70 Southbank Boulevard, Southbank. The permit will allow:
      • Use and development of the land, including partial demolition associated with the construction of a mixed use high rise building containing Dwellings, Offices, Gym and Retail (café, supermarket & shop - but not tavern or hotel - at basement and ground floor) and a reduction in car parking generally in accordance with the endorsed plans.

The permit is subject to the conditions set out in the Appendix.

Mr Matthew Townsend, Barrister, instructed by MCC Corporate Solicitors. Written and oral evidence given by:

• Mr Craig Czarny, Urban Designer and Landscape Architect of Hansen Partnership Pty Ltd.
• Mr David Hayes, Manager Strategic Planning, City of Melbourne.
• Prof Rob Adams, Director City Design, City of Melbourne.

Mr Stephen Leitch, Town Planner and Mr Adrian Salmon, Assistant Director Statutory Approvals.

Mr Ian Pitt, SC of Best Hooper Solicitors and Nick Tweedie, Barrister. Written and oral evidence given by:

• Mr Jamie Govenlock, Town Planner of Urbis Pty Ltd.
• Mr Tim Biles, Town Planner and Urban Designer of Message Consultants Australia Pty Ltd.
• Mr Stephen Calhoun, Landscape Architect of Tract Consultants Pty Ltd.
• Dr Graeme Gunn, Architect of Graeme Gunn Architects Pty Ltd.

Mr Nonda Katsalidis, Architect of Fender Katsalidis (Aust) Pty Ltd, attended at the beginning of the hearing to explain the proposal.

With the agreement of parties Mr Greg Tucker, Traffic Engineer of GTA Consultants Pty Ltd was not required to attend to give oral evidence and answer questions about his written evidence statement.

Mr Michael Lewin, on behalf of residents in Southside Gardens, made a written and verbal submission but was not joined as a party.

Partial demolition of existing buildings and retention of facade to City Road. Construction of a 70 storey, 226 metre tall building containing 532 dwellings, offices with a total floor space of 5,925m2, café and shops at ground level, shops including supermarket in a lower ground level food court, car parking for 565 vehicles and 236 bicycle parking spaces.

Section 82 Planning and Environment Act 1987.

Design and Development Overlays (DDO18, DDO27 and DDO39).

Cl. 32.04-1 (use of land for leisure and recreation (gymnasium), retail premises, shop and office in MUZ)

Cl. 32.04-5 & 7 (construction of two or more dwellings on a lot and buildings and works for section 2 uses in MUZ).

Cl. 43.01-1 (demolition and buildings and works in HO366).

Cl. 43.02-2 (vary plot ratio requirements for commercial uses in DDO18 and vary height and setback requirements in DDO39).

We undertook a site inspection of the review site and the locality after the hearing.

The review site is located on the south west corner of Southbank Boulevard and City Road and has an area of 2,640m2. It contains a two storey period style commercial building and a more modern commercial building, also of 2 storeys. The surrounding area comprises a mix of commercial and residential activities in low, medium and high rise buildings. Eureka Tower and Freshwater Pace are two very tall towers in close proximity to the site. Both Southbank Boulevard and City Road carry high volumes of traffic while Fawkner Street is a bluestone paved, minor street primarily providing secondary access to properties facing City Road and Kavanagh Street.

1. The Minister for Planning has agreed to give conditional support for a 226 metre high mixed use building on the south west corner of City Road and Southbank Boulevard. The site is currently occupied by an historic two storey commercial building facing City Road and a much more modern commercial building facing Southbank Boulevard.
2. The City of Melbourne opposes the Minister's decision and in essence would prefer approval of a lower tower building that more closely matches the 100-140 metres of other buildings approved or constructed along City Road within the area covered by Design and Development Overlay No 39. Council also has some concerns about design detailing including the façade treatment of the carpark, the vertical garden, control of wind at ground level, activation along Fawkner Street and the width to Fawkner Street of the loading bays. It does not object to the basic mix of uses proposed for the building, the retention of the historic façade along City Road, the podium and tower layout, off-site amenity impacts including overshadowing and overlooking, the amount of on-site car parking or traffic impacts on the road network.
3. Mr Lewin lives in the Southbank Gardens complex to the south of Kavanagh Street and he and his fellow residents are concerned about overshadowing impacts. The Southbank Gardens is a low rise, two storey group of buildings constructed around a central area of open space that includes an in-ground swimming pool.

Height and ground level interface are the key issues

1. Having heard submissions and evidence, we consider that the two main issues raised in the current proposal are:
   1. Does planning policy support a building of this height and design?
   2. Is the ground level interface an acceptable outcome?
2. In addition, we have considered other issues including Mr Lewin's submission about overshadowing impacts to Southbank Gardens and whether they are within acceptable bounds.

Does planning policy support a building of this height and design?

1. Unlike many height based Design and Development Overlays (DDOs) across the State, DDO39 which applies to this part of Southbank does not specify either a maximum height or a preferred maximum height. As a result of Amendment C122 gazetted on 10 June 2010, buildings below 100 metres in height (and achieving specified minimum setbacks) do not require planning approval under DDO39.
2. Provided the design objectives, built form objectives and local policy requirements are achieved (including consideration of such matters as specific site context, off-site impacts, car parking requirements and traffic implications) then there is no limit in how high buildings may be and the DDO does not suggest a preferred or maximum height.
3. The seven design objectives of DDO39 are as follows:
   • To provide for appropriate spacing between buildings so as to maximize light, air and outlook.
   • To create a high quality mixed use 'downtown' area with a high level of pedestrian amenity.
   • To encourage high rise and high density residential development mixed with low density commercial development to complement and support the function of the city and service the local area.
   • To ensure that the design of new development respects the development potential of adjacent sites.
   • To encourage exemplary architecture and innovative building design.
   • To orientate buildings to complement and respond to the unique Southbank streets system.
   • To maintain the visual dominance of and key views to the Arts Centre Spire from St. Kilda Road and from the south along Sturt Street.
4. The three built form outcomes set out in the Table to Schedule 39 are:
   • Higher tower building forms at street intersections and other landmark sites which improve legibility of the urban form.
   • Tower developments that are well spaced to equitably distribute access to an outlook and sunlight between towers.
   • Higher development which ensures adequate solar penetration at street level by provision of upper level setbacks, tower spacing and orientation.
5. Having heard submissions and evidence on these matters, we are satisfied that the proposal does achieve these objectives and outcomes to a high degree. The tower is at a major intersection and is in our view an example of exemplary architecture. The orientation and setbacks of the tower ensure that there is appropriate spacing between it and other nearby tall buildings so that light, air, and outlook is maximised - not only on the review site but on nearby sites as well. Subject to design changes improving pedestrian protection from winds (and weather generally) then there will be a high level of pedestrian amenity along the Southbank Boulevard frontage. We recognise that pedestrian amenity is less along City Road, but that reflects both the high traffic volumes flowing along this road and the constraints in retrofitting weather protection because of the intention to retain the historic façade along this street frontage.
6. The mix of uses achieves the objective encouraging high rise, high density residential development mixed with low density commercial development to service the area. We particularly support the provision of a supermarket/food hall in the ground floor/basement, together with ground floor retail areas/cafe and the gym at first floor level facing out over City Road. At ground level the building provides clear separation of the office and residential entrances in Southbank Boulevard. Retail areas face Southbank Boulevard and City Road and to that extent complement and respond to the Southbank streets system. Nothing we have seen suggests that the proposed building will affect the visual dominance and key views of the Arts Centre Spire either from St Kilda Road or from along Sturt Street.
7. Part 2.0 (buildings and works) of DDO39 also asks that an application demonstrate how the development will continue to achieve any local planning policy requirements. Relevantly these are set out in Clauses 21.02, 21.03, 21,.04, 21.05, 21.06, 21.08, 21.08-3, 22,02, 22.05 and 22.17, and parties made reference to these in their submissions and in evidence. Clauses 21.05, 21.08-3, 22.02, 22.05 and 22.17 are of particular relevance and we found Mr Govenlock's detailed assessment against these (and the DDO39 design objectives and built form outcomes) of particular assistance. Local policy at Clause 21.04, including Figure 5: Housing Opportunities, specifically identifies the Central City, Docklands and Southbank north of the City Link as areas that will accommodate significant population growth. We consider it is very significant that local policy draws attention to the area north of the City Link. We also note that the review site is within an area identified in Clause 21.05 as an area where a substantial change in built form character is envisaged. Table 4 of Clause 21.05 lists three built form amenity principles which replicate the provisions in DDO39 dealing with outlook, sunlight, spacing between towers and impacts on adjoining sites. It also seeks to ensure that development does not undermine the significance of any identified heritage place or precinct. We note that none of the parties raised heritage as an issue in dispute in this case. Clause 21.05-2 also seeks to ensure that the design, height and bulk of development (where a new built form character is envisaged) creates a new but high quality built form character. Although Prof Adams questioned whether the proposal falls under the category of 'exemplary architecture', his main concern was the extent to which the building exceeded what he described as the recommended height on this site (page 5 of his evidence statement). We cannot agree with his comment that the building exceeds the recommended height on this site given that DDO39 does not make any reference to recommended maximum height or preferred maximum height.
8. In contrast, Dr Gunn gave evidence that the proposed building does offer an exemplary standard of architecture and as such it will add to the lexicon of quality tall buildings in metropolitan Melbourne. There was also some debate at the hearing about whether a city can accommodate more than one 'iconic' building given the suggestion that the nearby Eureka Tower is iconic. We do not propose to pass judgement about whether the Eureka Tower is an iconic building, but it seems to us that there is no reason why a city should not have any number of so-called iconic buildings. Given the World Heritage status of the Royal Exhibition Building then Melbourne may well have exceeded its suggested quota of one iconic building. In any event, the Planning Scheme does not require buildings to be iconic - rather it encourages exemplary architecture and innovative building design. On that test alone we are satisfied. The proposed building displays a high level of design resolution and response to its context, both in terms of the immediate surroundings and the wider Southbank area.
9. Council expressed concern at both the podium setback proposed for the tower and at the design of the ramped car park and its facade treatment. Whilst acknowledging the constraint of the soil conditions, Council argued that a better solution was to 'sleeve' the car parking with a more active use, or at least ensure that the floor to floor heights allowed for future conversion to another use. The applicant argued that the ramped arrangement minimized the number of storeys required to house the cars, and that the open weave screen allowed the car park to be naturally ventilated. We cannot envisage that the car parking numbers will be reduced in future, rather that the location will give residents the opportunity to use their cars less.
10. Along City Road, the car park façade is set back 6.3 metres above that of the retained heritage façade. A gold mesh waved screen is proposed for both the City Road and Fawkner Street facades, ending at level 10. To Southbank Boulevard large, heavily vegetated planter boxes with substantial timber framing are proposed to mask the car park. They extend in part to level 16 and at times wrap around the corners of City Road and Fawkner Street. The timber framing device is again used to activate the junction of the screen and the adjacent building in City Road. It appears to us that the screen is an appropriate treatment of the carpark - a discrete, visually interesting element of the design, set at 90 degrees to the traffic flow in City Road, providing a level of vivacity to Fawkner Street and avoiding the potential glare from its use on Southbank Boulevard. We find the screen treatment acceptable.
11. Parties also made reference to various 'works in progress' including Amendment C162 which is currently on exhibition and the draft Southbank Structure Plan (2010) which has been endorsed by Council for public consultation purposes. While these provide insight into Council's thinking about future strategic and statutory planning in the area, they have not yet reached a point where they should outweigh or be given similar weight to the contents of the gazetted Planning Scheme. Whilst we have no reason to doubt the evidence of Mr Mayes that the new strategy would provide a new perspective for reassessing the strategic merit of proposals of this type, it is our understanding that these documents do not propose a mandatory height control for the area or that the discretion now available will be removed. Indeed, we would be surprised if the Minister approved any control introducing mandatory height limits in an area where both he and the Council have approved buildings higher than the 100 metres referenced in the Table to Schedule 39. As previously noted, Amendment C122 to the Melbourne Planning Scheme, in its removal of the need for planning approval under DDO39, has effectively made 100 metres the threshold for the consideration of height in this location.

Is the ground level interface an acceptable outcome?

1. The built form objectives of DDO 39 seek legibility of the urban form at street intersections, amongst other things. We acknowledge that at ground plane, this area at the intersection of City Road and Southbank Boulevard presents a challenge with the slip lane destroying the clarity of the intersection. The evidence suggests and is confirmed by our analysis of the proposal, that the organization of ground plane is a well considered and sophisticated response to this context.
2. We agree with Mr Biles that a walk around the ground level of the Eureka tower demonstrates that the pedestrian is more conscious of the street interface than the height of the tower above, particularly where, as in the case of Eureka, there is permeability through the building, a variety of uses and a diversity of spaces which can be experienced by the pedestrian. In the case of the subject proposal, the lobby off City Road which serves as the entrance to the supermarket and ground floor retail provides a pedestrian space which offers protection from the highly trafficked City Road. Activation of the windows along this interface will also improve the pedestrian experience. The observation contained in DOI's Plan for Southbank that buildings in Southbank are disconnected from the public environment cannot be applied to this proposal_._ The supermarket will have good pedestrian exposure to City Road as will the cafe which takes advantage of the more attractive streetscape of Southbank Boulevard. The integration of public and private realms achieved by the proposed extent of paving to the kerb line will serve to further enhance the pedestrian realm.
3. Our concern, shared by Council, is the efficacy of the measures proposed to mitigate the downdraft from the building into what is already a windy area. The wind assessment report tendered by the applicant and much criticized by Council, identified the retention of the heritage façade on the corner as exacerbating 'downwash flows' from the building. This may be so, but it is simply one of the design challenges to be addressed on this site. We will impose a condition requiring further wind analysis during design development and amendment to the proposal as necessary. We consider that this should also include a review of the weather protection offered to pedestrians.

1. Mr Calhoun explained the landscaping proposal that relies on the use of large planter boxes to create a vertical garden along the north eastern façade facing towards Southbank Boulevard and the City Road intersection. We consider the proposal interesting and innovative. We do not accept any suggestion that it should be rejected because Mr Calhoun, in answering a question from Mr Townsend, could not recall any other examples in the world. We find it refreshing that Melbourne may be leading the world and would certainly not reject a vertical garden provided that the vegetation can be successfully established and the gardens maintained safely and appropriately. We think that this façade planting will reinforce the greenery of Southbank Boulevard, providing a welcome green space in this part of the city.
2. While we understand why Council is dubious about the practicality of establishing the gardens and of potential safety issues arising from the dropping of fronds and other debris, we do not share those concerns provided steps are taken to prevent such debris falling below. We have therefore included a requirement that structures be included to prevent any such occurrence. In addition, we consider that the design and disposition of the planter boxes on the façade leave open an opportunity for an alternative, interesting, non landscape, treatment, should this ever be required.

Loading bays and vehicular access in Fawkner Street

1. The proposal includes two individual loading bays off Fawkner Street - one for the supermarket and the other for the residential component. Although Council was critical of this arrangement and suggested that the bays be combined into one, we consider that as proposed, it is a practical and sensible solution to loading and unloading on this site. We support the separation of loading/unloading activities as shown on the drawings. We also support the use of Fawkner Street for vehicular access to the building. It is by its nature and character a minor road and largely acts as a secondary access point to properties on either side that front City Road and Kavanagh Street. Vehicles entering and exiting the proposed building, including goods vehicles, will not compromise pedestrian amenity in this street.

Are the off-site overshadowing impacts within reasonable bounds?

1. Mr Lewin made a submission to us about overshadowing impacts and, although not invited to, submitted a supplementary submission concerning shadowing and sunlight. What then are those off-site impacts and are they acceptable having regard to the tests or guidelines contained within the Planning Scheme? Clearly this is not an application under ResCode but is instead to be assessed having regard to the Guidelines for Higher Density Residential Development (Clause 19.03-3). In some cases the Guidelines cross-reference ResCode standards to assess impacts such as overlooking or overshadowing and loss of daylight.
2. Shadow diagrams produced by the permit applicant are for the equinox which is the time specified for undertaking an overshadowing assessment. While it is often the case that objectors are concerned about overshadowing in the winter period between the March and September equinoxes, that is not the period specified in the Planning Scheme, and it only applies to secluded private open space. It does not apply to roofs and perhaps unfortunately, given the encouragement given to utilise solar power, does not address potential shadowing of solar panels. We agree with Mr Lewin that there will be shadowing of the internal courtyard/swimming pool in Southbank Gardens, but we consider that additional shadowing caused by a building on this site of 226 metres in height is within the bounds of what the Planning Scheme has deemed acceptable. In other words, at the equinox shadowing will occur at different times of the day and to different parts of the Southbank Gardens complex. Shadow is already cast into the internal courtyard by the approved tower building at 88 Southbank Boulevard. This shadowing begins at about 1.15pm and it is not until around 2pm that the proposed 226 metre high tower on the review site starts to shadow the edge the internal courtyard and does not start to impact the swimming pool until about 2.30pm. We note that it is the tower at 88 Southbank Boulevard which has the most overshadowing impact.

1. We have found that the proposal for a 226 metre high mixed use building is consistent with State and Local Planning Policy Frameworks and that it does achieve the design objectives and built form outcomes set out in DDO39. The site is located at the intersection of two major roads in Southbank and we are satisfied that the building is an example of exemplary architecture and innovative design. We are satisfied that car parking is sufficient and that the landscaping proposal will result in an attractive and unusual façade for the building. We also find that the extent of overshadowing is within acceptable bounds given the 'tests' set out in the Planning Scheme.
2. Subject to some relatively minor changes to conditions, we support the Minister's decision to approve the project. We therefore direct that a permit issue subject to the conditions set out in the Appendix.

Use and development of the land, including partial demolition associated with the construction of a mixed use high rise building containing Dwellings, Offices, Gym and Retail (café, supermarket and shop - but not tavern or hotel - at basement and ground floor) and a reduction in car parking generally in accordance with the endorsed plans.

1. Prior to the commencement of the development amended plans to the satisfaction of the Responsible Authority must be submitted to and be 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 generally be in accordance with the plans submitted with the application but modified to show:
   • (a) Improved activation of the ground floor frontages as shown on revised plans TP100-128 (inclusive), TP200, TP201 & TP220 prepared by Fender Katsalidis Architects dated 12/10/2009.
   • (b) Alteration to the car park screening to City Road and Fawkner Street as shown on revised plans TP100-128 (inclusive), TP200, TP201 & TP220 prepared by Fender Katsalidis Architects dated 12/10/2009.
   • (c) Introduction of a vertical garden to the car parking levels fronting Southbank Boulevard as shown on revised plans TP100-128 (inclusive), TP200, TP201 & TP220 prepared by Fender Katsalidis Architects dated 12/10/2009.
   • (d) Provision of structures (such as screens or permanent netting) to prevent vegetation debris falling to ground level.
   • (e) Deletion of the "70" supergraphic on the City Road façade as shown on revised plans TP100-128 (inclusive), TP200, TP201 & TP220 prepared by Fender Katsalidis Architects dated 12/10/2009.
   • (f) The side setbacks from to the south-east site boundary as shown on revised plans TP100-128 (inclusive), TP200, TP201 & TP220 prepared by Fender Katsalidis Architects dated 12/10/2009.
   • (g) Increase the total height from 214 metres to 226.4 metres as shown on revised plans TP100-128 (inclusive), TP200, TP201 & TP220 prepared by Fender Katsalidis Architects dated 12/10/2009.
   • (h) Decrease the number of dwellings from 545 to 532 as shown on revised plans TP100-128 (inclusive), TP200, TP201 & TP220 prepared by Fender Katsalidis Architects dated 12/10/2009.
   • (i) Alter the floor areas for the office and retail components of the development as shown on revised plans TP100-128 (inclusive), TP200, TP201 & TP220 prepared by Fender Katsalidis Architects dated 12/10/2009.
   • (j) Introduce wind mitigation treatments as shown on revised plans TP100-128 (inclusive), TP200, TP201 & TP220 prepared by Fender Katsalidis Architects dated 12/10/2009 and required by wind assessment 30B-08-0331-TRP-443468-3 carried out by Vipac Engineers & Scientists on 9 October 2009. If other wind mitigation treatments are required as a result of the further wind assessment required by Condition 9 they are to be incorporated on the amended plans.
   • (k) Alteration to the treatment to the top of the building as shown on revised plans TP100-128 (inclusive), TP200, TP201 & TP220 prepared by Fender Katsalidis Architects dated 12/10/2009.

(l) Any modifications required to the car parking areas required by conditions 28, 29and 30.

(m) The design details of the ground level treatments along City Road, Southbank Boulevard Street and Fawkner Street at a scale of 1:50.

(n) The design details of the car park screening and the vertical garden at a scale of 1:50.

(o) An alternative podium treatment to the car park levels to Southbank Boulevard in the event of the vertical garden failing, at a scale of 1:50.

(p) A demolition plan.

1. The development as shown on the endorsed plans must not be altered without the written consent of the Responsible Authority.
2. Once the development has started it must be continued and completed to the satisfaction of the Responsible Authority.
3. The café must not operate outside the hours of 7am to 11pm daily.

1. Prior to the commencement of the development (or any stages) hereby permitted, a detailed Construction Management Plan (CMP) must be prepared to the satisfaction of the Responsible Authority in consultation with City of Melbourne outlining how the development proponent will manage the environmental and construction issues associated with the development. The CMP is to be prepared in accordance with City of Melbourne Construction Management Guidelines and must address demolition, bulk excavation and management of the construction sites and land disturbance, hours of operation, noise, dust, vibration controls, traffic management, soiling of roadways, discharge of polluted waters and sediment control, improper disposal of waste contaminated soil / asbestos and pollution of ground water, waste and materials reuse and site accommodation for workers.

1. Prior to the commencement of the development a reflectivity assessment of external glazing area that reflects more than 20% of visible light when measured at an angle of incidence normal to the glass surface must be provided to the satisfaction of the Responsible Authority.

1. Demolition must not commence unless the Responsible Authority is satisfied that the permit holder has made substantial progress towards obtaining the necessary building permits for the development of the land generally in accordance with the development proposed under this permit and the permit holder has entered into a bona fide contract for the construction of the development, or otherwise as agreed with the Responsible Authority.

1. Prior to the commencement of the development, excluding demolition, bulk excavation, site preparation, soil removal, site remediation, retention works, footings, ground beams and ground slab, a sample board including a colour rendered and notated plan /elevation that illustrates the location and details of all external materials and finishes must be submitted to and be to the satisfaction of the Responsible Authority. All finishes and surfaces of all external buildings and works, including materials and colours must be in conformity with the approved schedule to the satisfaction of the Responsible Authority.

1. Prior to the commencement of the development, further assessment of wind conditions at ground level, including any additional mitigation treatments, must be undertaken to the satisfaction of the Responsible Authority. Any consequential mitigation treatments must be shown on the amended plans.

1. Prior to the commencement of the development, excluding demolition, bulk excavation, site preparation, soil removal, site remediation, retention works, footings, ground beams and ground slab, a report by an accredited professional must be submitted to the satisfaction of the Responsible Authority documenting the energy efficiency measures introduced into the building design. The performance outcomes specified in the report must be implemented prior to the occupation of the development to the satisfaction of the Responsible Authority.

1. Prior to the commencement of the development, excluding demolition, bulk excavation, site preparation, soil removal, site remediation, retention works, footings, ground beams and ground slab, a plan of consolidation into one title for the whole of the land must be lodged at the Land Titles Office.

1. Prior to commencement the development, or as may otherwise be agreed with the Responsible Authority, a qualified landscape architect is to produce a scaled and dimensioned detailed landscape plan that must be submitted to and be to the satisfaction of the Responsible Authority in consultation with the City of Melbourne. The plan must include a schedule of all soft and hard landscape materials and treatments including street trees, automatic irrigation, planting schedule, details of how the vertical garden will be constructed and operated, measures to prevent vegetation debris from falling to ground level, urban design elements including, but not limited to, paving, lighting, seating, and public art, and clear demarcation of public realm and private spaces including arrangements for pedestrian, bicycle, vehicular circulation in the development. The landscape plan must demonstrate how the project responds to water sensitive urban design principles including how storm water will be mitigated, captured, cleaned and stored for on site irrigation purposes. The City of Melbourne technical notes should form the basis for all public realm works.
2. Prior to the commencement of all landscaping works associated with the vertical garden a landscape management plan detailing the ownership, maintenance regime and management responsibilities of the vertical garden associated with the development must be prepared and submitted to the satisfaction of the Responsible Authority in consultation with the City of Melbourne prior to the commencement of all landscaping works associated with the vertical garden.
3. Should the vertical garden fail the alternative podium treatment is to be undertake to the satisfaction of the Responsible Authority in consultation with the City of Melbourne.

1. A landscape plan of the footpaths to the satisfaction of the Responsible Authority must be submitted to the Council and the Responsible Authority if any trees in the streets are affected by the development or any gantry, or are required to be removed to enable the development to take place. All works associated with the approved landscape plan including the replacement of any street tree must be at the cost of the owner of the land.
2. Prior to the removal of any street tree, further consent is required to be obtained from the City of Melbourne, and where practicable, a replacement tree may be required to be replanted to the satisfaction of the City of Melbourne, and all fees associated to the removal and replacement must be borne by the applicant requesting the removal of the street tree.

1. All building plant and equipment on the roofs are to be concealed to the satisfaction of the Responsible Authority. The construction of any additional plant machinery and equipment, including but not limited to all air-conditioning equipment, ducts, flues, all exhausts including car parking and communications equipment must be to the satisfaction of the Responsible Authority.
2. No Architectural features and services other than those shown on the endorsed plans must be permitted above the roof line without the permission of the Responsible Authority.
3. Except with the consent of the Responsible Authority, all external glazing must be of a type that does not reflect more than 20% of visible light when measured at an angle of incidence normal to the glass surface.
4. No building or works must be constructed over any easement without the written consent of the Relevant Authorities.
5. Not more then one telecommunications receivers/television aerial is to be erected without the consent of the Responsible Authority.
6. Satellite dishes must not be erected without the prior permission of the Responsible Authority.
7. There must be no air conditioning units, canopies or other permanent structures located on the balconies without the prior written consent of the Responsible Authority.
8. All service pipes, apart from roof downpipes must be concealed from the view of a person at ground levels within common areas, public thoroughfares and adjoining properties.
9. No advertising signs must be erected, painted or displayed on the land without the permission of the Responsible Authority unless in accordance with the provisions of the Melbourne Planning Scheme.

1. All public lighting should conform to AS1158, AS3771 and the Public Lighting Code September 2001 and must be designed, baffled and located to the satisfaction of the Responsible Authority.
2. Any requirement to temporarily relocate street lighting without first obtaining the written approval of the Council's Group Manager - Engineering Services.

1. The internal design of the car park and loading docks, the positioning of boom gates, card readers, control equipment, including car park control points must be generally in accordance with the Australian and New Zealand Standard 2890.1-2004 to the satisfaction of the Responsible Authority.
2. The areas for the parking of vehicles must be clearly indicated on the floor and the boundaries of all car parking spaces and access lanes and the direction in which vehicles should proceed along the access lanes must be in conformity with the endorsed plans. The car parking spaces must not be used for any other purpose and all access aisles must be kept clear. There must be no vehicular reversing out of the development's loading dock.
3. A warning device/sign should be installed at the car park entry alerting pedestrians when vehicles are exiting the building, to the satisfaction of the Responsible Authority.
4. The areas set aside for the parking of vehicles within the site must not be operated as a public car parking facility.
5. The car parking area must be lit to the satisfaction of the Responsible Authority, if in use during hours of darkness and all lights must be designed, fitted suitable baffles and located to prevent any adverse effect on adjoining land.

1. After the completion of the development the loading or unloading of vehicles of goods, plant and materials or other items delivered to or despatched from the land must take place within the boundary of the land and be accessed from Fawkner Street.
2. The headroom in the area located between the building lobbies must be sufficient to accommodate waste collection and delivery/furniture vehicles off-street.

1. The owner of the subject land must not alter the existing footpath/road levels in City Road, Southbank Boulevard or Fawkner Street without first obtaining the written approval of the Council's Group Manager - Engineering Services.
2. The owner of the subject land must reconstruct the footways in City Road, Southbank Boulevard & Fawkner Street adjacent the subject land in sawn bluestone paving together with associated works including the renewal and/or relocation of kerb and channel and the relocation of all service pits and covers as necessary at the cost of the Owner/Developer in accordance with plans and specifications first approved by Council's Group Manager - Engineering Services.
3. The owner of the subject land must construct all necessary vehicle crossings and demolish all unnecessary vehicle crossings adjacent to the subject land in accordance with plans and specifications first approved by the Council's Group Manager - Engineering Services.

1. The owner of the subject land must construct a drainage system within the development and make provision to connect this system to Council's underground stormwater drainage system in accordance with plans and specifications first approved by the Council's Group Manager - Engineering Services.
2. Details engineering drawings, including plan, long section and cross sectional information 1:200 horizontal and 1:20 vertical scales should be submitted a minimum of 21 days before works are due to commence for approval by Council's Group Manager - Engineering Services.
3. All projections must be drained to legal points of discharge in accordance with plans and specifications first approved by the Council's Group Manager - Engineering Services.

1. The owner of the property must seek a tenure/authorisation under the Land Act from the Department of Sustainability and Environment for the building projections over Crown Land. That tenure/authorisation must indemnify Council against any claims regarding the projections. Should the owner of the property seek to commence works prior to the issue of this tenure/authorisation, the owner must enter into a legal agreement under Section 173 of the Planning and Environment Act, 1987, concerning the liability of those parts of the development projecting into airspace or sub-soil of land under the care and management of Council. The owner of the property to be developed must pay all of Council's reasonable legal costs and expenses of this agreement, including preparation, execution and registration on title.

1. Sufficient garbage storage facilities must be provided within the property boundary. Garbage facilities must be to the satisfaction of the Group Manager - Engineering Services (City of Melbourne).
2. No garbage bin or surplus materials generated by the permitted use may be deposited or stored outside the site and bins must be returned to the garbage storage areas as soon as practicable after garbage collection to the satisfaction of the Responsible Authority.
3. The waste collection arrangements must be to the satisfaction of the Group Manager - Engineering Services (City of Melbourne).
4. The area shown on the endorsed plans as garbage storage must contain a floor waste tap and the area must only be used for garbage storage.

1. Prior to the commencement of the development, excluding demolition, bulk excavation, site preparation, soil removal, site remediation, retention works, footings, ground beams and ground slab, a report from a qualified acoustic engineer, must be submitted to the satisfaction of the Responsible Authority certifying that the residential components of the development will achieve a maximum noise level of 45dB(A) in habitable rooms with windows closed.

1. Prior to the occupation of the residential component of the development a Green Travel Plan must be prepared by a suitably qualified person to the satisfaction of the Director of Public Transport. The GTP must:
   • (a) Describe the location of the development site in the context of alternative modes of transport and objectives of the GTP.
   • (b) Outline GTP measures for the development including, but not limited to:
     • (i) Household welcome packs for dwellings;
     • (ii) Possible incentives (e.g. provision of Metcards through rental/ownership of a dwelling);
     • (iii) Cycle parking and facilities included; and
     • (iv) GTP management responsibilities, including ongoing monitoring and review.
2. Once approved the GTP must form part of the planning permit or any ongoing Management Plan for the site to ensure the plan continues to be implemented by residents/owners to the satisfaction of the Responsible Authority.

1. In accordance with section 68 of the Planning and Environment Act 1987, this permit will expire if one of the following circumstances applies:
   • (a) The development and use are not commenced within two years of the date of this permit.
   • (b) The development is not completed within four years of the date of this permit.

In accordance with section 69 of the Planning and Environment Act 1987, the Responsible Authority may extend the periods referred to if a request is made in writing before the permit expires, or within three months afterwards.

[1] Ms Bogusz was struck out as a party pursuant to our order dated 3 August 2010.