1. Leave is granted to substitute the plans that are the subject of the Application for Review for those prepared by Fraser Paxton Architects and referred to as Revision O.
2. The decision of the Responsible Authority in relation to permit application no. PLN11/1077 is set aside.
3. A permit is granted in relation to land at 250 Gore Street and 221 Moor Street, Fitzroy. The permit will allow demolition and development of the land with a seven storey building comprising dwellings and a food and drinks premises, use of the land for dwellings, reduction in the car parking provision, waiver of loading bay requirements, removal and construction of crossovers and removal of easements (instrument numbers N542588M and N542587Q) generally in accordance with the endorsed plans.
4. The permit is subject to the conditions contained in Appendix 1 to these reasons.

Mr Cicero called expert evidence from Chris Goss (visualisation) of Orbit Solutions, Bryce Raworth (heritage consultant) of Bryce Raworth Pty Ltd, Jason Walsh (traffic engineer) of Traffix Group, John Patrick (landscape architect) of John Patrick Pty Ltd, Jan Talacko (sustainability consultant) of Ark Resources and Catherine Heggen (town planner) of Message Consultants.

David Gold (town planner) of Planned FX Pty Ltd provided an explanation at the commencement of the hearing of a number of errors within the plans, and was made available for questions of clarification from the other parties.

Mr Rantino called expert evidence from Andrew Hutson (architect) and Robyn Riddett (heritage consultant) from Anthemion Consultancies.

Jane Sharp, Barrister appeared by direct brief for Paul Beekman, David Fox, Jane Allardice, P Caldon and B Walker, Pauline Ryan & K Johns, Trudie Fraser, Sue Wheatley, Nola Rushford, Susannah Dax, and Carol Butters.

Terry Glenane, Michael McManus, Louise Elliot, Charles Sowerwine and Marc Banks all appeared in person.

Demolition of the existing buildings, and development of the land with a six to seven storey building[1] comprising a food and drink premises, gymnasium and 54 dwellings. A basement will provide 55 car parking spaces predominantly in stackers as well as storage and bicycle parking facilities.

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

Clause 34.01-1 to use land within the Business 1 Zone for a dwelling.

Clause 34.01-4 to construct a building or construct or carry out works on land within the Business 1 Zone.

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

Clause 52.06-3 to reduce the standard amount of car parking required under that Clause.

Clause 52.07 to waive the loading bay requirements.

Clauses 10, 11, 13, 15, 16, 17, 18, 21, 22.02, 22.03, 22.05, 22.12, 34.01, 43.01, 52.02, 52.06, 52.07 and 65.

The land is an irregular shaped allotment of some 1405 square metres with frontages to Hodgson Street of 45.04 metres, to Gore Street of 36.15 metres and to Moor Street of 30.22 metres. The land presently supports a two storey office building that presents to all three street frontages and a single storey detached dwelling that presents to Moor Street. Car parking to the site is currently available via both Hodgson and Moor Streets.

The Tribunal conducted an accompanied inspection of the subject site and surrounding area on 7 December 2012.

Virgon Constructions Pty Ltd v Boroondara CC [2011] VCAT 2296; JCT v Bayside CC [2009] VCAT 2064; Lawonnue PL v Port Phillip CC [1999] VCAT 695.

1. Mohr Nominees (the 'Applicant') has lodged an Application for review against the failure of the Yarra City Council to grant a permit within the prescribed time. The matter relates to a proposed six and seven storey apartment building, with one ground level café, comprising 54 dwellings on land at 250 Gore Street and 22 Moor Street in Fitzroy.
2. Prior to the hearing the Applicant circulated amended plans of the proposal which while addressing the external appearance of the building, including a range of setbacks to the upper levels, does not change the description of the proposal set out above.
3. The Yarra City Council determined that if it were not for the lodgement of the Application for Review, it would have decided to refuse to grant a permit due to concerns relating to the demolition of a contributory heritage building, the urban design response to the broader heritage and neighbourhood character context, and the amenity impacts on the adjoining residential properties.
4. The Application for Review is also being contested by a considerable number of surrounding residents, who raise a broad cross section of concerns with the proposal. None of the parties that oppose the proposal raise any concerns in relation to the internal amenity of the apartments within the proposed development.
5. The key issues or questions for determination are:

1. Is the demolition of the contributory heritage building at 221 Moor Street appropriate? 2. Is the building an appropriate built form response to its heritage and character context?

1. Will unreasonable off-site amenity impacts occur?

1. Are car parking and traffic impacts appropriately resolved?
2. The Tribunal must decide whether a permit should be granted and, if so, what conditions should be applied. Having considered all submissions and evidence presented with regard to the applicable policies and provisions of the Yarra Planning Scheme, we have decided to set aside the Council's decision, and direct the grant of a planning permit, albeit for a slightly modified development. Our reasons follow.

Is the demolition of the contributory heritage building at 221 Moor Street appropriate?

1. The success of this Application for Review relies upon the demolition of the dwelling at 221 Moor Street in order to allow the proposed development to proceed. This is therefore a threshold issue in this matter. That is, if we decide that the dwelling should not be demolished, then the Application for Review must fail.
2. Mr Rantino for Yarra City Council submitted that the Edwardian style dwelling at 221 Moor Street should be retained as it is part of a collection of contributory dwellings which contribute to the significance of this heritage precinct. While recognising that on its own the dwelling makes a limited contribution to the heritage place, Mr Rantino referred to the importance of the fairly intact group of Victorian and Edwardian dwellings in this precinct, and the damage to the significance of this precinct that would be caused by the incremental loss of individual contributory dwellings.
3. These submissions were supported by those of the residents, in particular those of Professor Sowerwine and Ms Elliot. Both of these submitters impressed upon the Tribunal the distinctly Edwardian characteristics of the existing dwelling at 221 Moor Street, which they say is mostly intact today. Professor Sowerwine and Ms Elliot also highlighted the history of the warehouse that fronts Hodgson Street on the review site, arguing that it should have been identified as a contributory building by Council and retained within a development proposal on the review site. Ms Elliot in particular submitted that this warehouse has local historic value based on its design by John Gawler, and early use as a warehouse for Ackman's, a local industry and retail outlet.

To ensure the conservation of places of heritage significance.

1. Such policy is supported by those at a local level which seek[4]:

To encourage the preservation, maintenance, restoration and where appropriate, reconstruction of heritage places.

1. In terms of demolition specifically, policy states:

Generally encourage the retention of a building in a heritage place, unless

• The building is identified as being not contributory.
• The building is identified as a contributory building, and
  • new evidence has become available to demonstrate that the building does not possess the level of heritage significance attributed to it in the incorporated document, City of Yarra Review of Heritage Overlay Areas 2007, Appendix 8 (Graeme Butler and Associates), revised March 2011 and
  • the building does not form part of a group of similar buildings.

Note: The poor condition of a heritage place should not, in itself, be a reason for permitting demolition.

1. This policy must of course be read in conjunction with the Heritage Overlay, which seeks:

To conserve and enhance heritage places of natural or cultural significance.

To conserve and enhance those elements which contribute to the significance of heritage places.

1. For all the tests that apply under the Yarra Planning Scheme, we are of the opinion that one of the comments by Ms Riddett in her oral evidence carries an appropriate question in this matter. In response to some questions regarding the importance of the former 'Ackman's' building that sits on the review site facing Hodgson Street, Ms Riddett advised that buildings should be considered for retention based on their contribution, or what they say, in heritage terms to the passer by.
2. On our view of the dwelling at 221 Moor Street, we read very little of heritage significance. The dwelling is a plain example of late Edwardian architecture that is presently overwhelmed in a streetscape view by the Victorian terraces to its east and a more modern office building to its west. Indeed, we adopt Mr Raworth's description of this dwelling currently being 'uncomfortably sandwiched' between the buildings to its east and west. Mr Raworth in response to questions went one step further and described it as a 'clunky, dull building with no interesting details, its pretty boring really.'
3. We don't go so far as to share, word for word, the thoughts expressed by Mr Raworth. However we do note that it's lack of presence in the streetscape, and that the original red brick walls have been painted over. While we accept the submissions made that such paint can be removed, we cannot compel that outcome. In short, it is a dwelling which one views in the streetscape and is thoroughly underwhelmed.
4. We make the comparison with the Victorian terraces immediately to the east, which we consider 'speak' much more clearly to the history of this area, as do the Victorian dwellings at 211 to 221 Gore Street, and many other local examples. We do not compare these other heritage dwellings because they are from the Victorian era, but because of the presence they have in the streetscape, and the obvious heritage qualities they impart to the passer by.
5. As a result, we agree with Mr Raworth's evidence that the demolition of the dwelling at 221 Moor Street would represent a minor loss to the significance of the heritage precinct. As directed by Clause 10.02 of the Yarra Planning Scheme, we then need to weigh that minor loss with the significant contribution that is proposed to urban consolidation policies in a location where they are pronounced, that is within a Major Activity Centre. While we acknowledge that urban consolidation can be achieved on the remainder of the site without the demolition of 221 Moor Street, the loss of that site from the development as a whole will have a significant effect on yield, as would the need to provide an appropriate transition to the single storey Edwardian dwelling, if it were to be retained.
6. We acknowledge that the presence of the site within a Major Activity Centre is not sufficient reason of itself to reason the loss of a contributory building. We were referred by nearly all parties to the decision of Virgon Constructions Pty Ltd v Boroondara CC[5] where the Tribunal determined to not allow the demolition of a contributory building within the boundary of a Major Activity Centre. We have viewed that dwelling and consider the comparison to the dwelling at 22 Moor Street to be like chalk and cheese. The dwelling that was the subject of the Virgon decision, while also being a contributory building, is far more instructive to the passer by of the heritage of that precinct, than the dwelling at 221 Moor Street. It also being on a prominent corner site has far more presence within the heritage precinct, than the dwelling we are dealing with here in Moor Street, and sits comfortably within a street, that is Crystobel Crescent, of similar dwellings. Aside from the activity centre context, the comparison between the two dwellings is not a reasonable one.
7. In our view, the balancing of policy that we need to undertake in this matter weighs in favour of the demolition of the dwelling at 221 Moor Street. In reaching this conclusion we simply compare the minor loss in heritage terms with the resultant significant achievement of urban consolidation policies in a location where such policies gain significant traction. For these reasons we find that the demolition of this dwelling is supported.
8. Mr Rantino in his submission argued that the building should only be removed if the replacement building makes an equal or greater contribution to the heritage conservation of the precinct than the building being demolished. Mr Raworth in making this submission relied upon the Tribunal decision of Lowonnue PL v Port Phillip CC[6] which applied this test. However we do not consider that in this Major Activity Centre Context that is not a fair or reasonable test. Indeed, we wonder how, in this context, a new building could make any contribution to the heritage conservation of the precinct. Instead, we consider that the appropriate test is that the proposal should make an equal or greater contribution to the overall objectives of the relevant planning scheme, being in this case the Yarra Planning Scheme. Given the balancing assessment we have just undertaken, we find that in this case the demolition of the heritage dwelling and construction of a development consisting of 54 dwellings does advance the broad objectives of the Yarra Planning Scheme for this location.
9. We then turn our attention to the former Ackman's warehouse on the Hodgson Street side of the review site. We were usefully provided with copies of the original architect's drawings by Ms Elliot. These drawings show that the building as exists presently cannot be said to be intact according to its original construction. All of the original windows have been removed, and other modifications have occurred over time. Photographic evidence was presented of a first floor pedestrian gantry connecting to a building over Hodgson Street to the north, which has since been removed.
10. Ms Elliot referred to this building as part of a precinct of buildings designed by Mr Gawler, and other buildings that were built for and used by Ackman's. In our view, this building, in its highly modified form, does not assist one to appreciate the grouping of either Gawler designed buildings or Ackman's used buildings in this precinct. This is due to its modified form, as well as the inherent differences between this building and the others that have been retained.
11. We are also persuaded by and give significant weight to the evidence of both Ms Riddett and Mr Raworth, both of whom are of the opinion that the Gawler building on the review site is highly modified and was properly identified as a non-contributory building. Both of these heritage experts support the demolition of this building, as do we.

Is the building an appropriate built form response to its heritage and character context?

1. The parties opposed to the grant of a permit submitted that the built form was too robust for this review site, having a direct interface with a low scale residential area within a Heritage Overlay, and being itself located within a Heritage Overlay. These parties viewed the response on character/context grounds and on heritage matters as being two separate layers of considerations which should result in a more tempered built form on the review site.
2. Mr Hutson gave architectural evidence that the building was not an appropriate design response due to the street wall heights, setbacks and visibility to the upper levels, materials used and lack of a vertical rhythm in the podium form to Gore Street. Ms Riddett, aside from her primary position that the dwelling at 221 Moor Street should not be demolished, was similarly critical of certain elements of the built form.

1. While we recognise the site's location at the interface to a residential precinct with well defined heritage values, the most important facet of the site's strategic and physical context is its location within a Business 1 Zone inside the boundaries of the Smith Street Major Activity Centre (SSMAC). Planning policy for such locations is clear. At a State level policy seeks to:

Encourage a diversity of housing types at higher densities in and around activity centres.[7]

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

1. We consider that the review site, being within a Major Activity Centre, accessible to a wide range of services and facilities, and within easy walking distance of a tram route, that provides convenient access to the Melbourne CBD, is clearly a location favoured by State policy for the achievement of higher density housing.
2. At a local level policy at Clause 21.05-2 seeks to achieve the following outcome:

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

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

1. The review site being both a strategic redevelopment site and within a Major Activity Centre, and containing a proposal with 'best practice' environmental sustainability objectives[9], in our view enjoys policy support for development that exceeds 5-6 storeys in height.
2. The review site therefore enjoys considerable support for the achievement of higher density housing which would involve a fairly robust built form. The key question in this dispute is how should one achieve these policy objectives, in the context of this site at the interface to a residential neighbourhood, and one with such well defined heritage qualities.
3. Firstly, we need to identify that we do not consider one can so cleanly separate the character/context considerations and the heritage considerations that must influence an appropriate design outcome on the review site. The character of the surrounding residential neighbourhood is so heavily influenced and defined by its heritage buildings, that in this case a response to character and context constitutes a response in heritage terms as well.
4. During the hearing many of the parties opposing the grant of a permit compared the proposed development with the surrounding built form, and in particular with the recent development at the south-eastern corner of Gore and Charles Streets, referred to us as the 'Union Club Hotel' development. In our view however all such comparisons miss an important starting point, that is the review site's location within the SSMAC. Save for the properties that corner Johnson Street, only the review site and that immediately adjoining to the north in this section of Gore Street are located within a Business 1 Zone and the SSMAC.
5. Given the purposes of the Business 1 Zone to encourage intensive development, and the policy objectives to achieve substantial urban consolidation in activity centre locations, it follows that the built form proposed will not repeat that already found elsewhere in Gore Street. In terms of the Union Club Hotel redevelopment, we note the location of that site in a Mixed Use Zone and outside of the SSMAC. In strategic terms, it is understandable then that this proposal is taller and more robust than the development that has recently been constructed on that site.
6. That does not mean that the development should ignore its residential interface, and nor does it. In most respects we consider that the proposed development has achieved the right balance of proposing a large scale development as encouraged in the SSMAC, while mitigating and articulating that built form to the residential interface. We consider that the site context assists in this endeavour as the land does not have a direct abuttal to surrounding properties within the Residential 1 Zone, such abuttals being at all times separated by either Gore or Moor Streets.
7. We make the finding that, on the whole, the proposed built form is appropriate for the following reasons.
8. The proposed built form steps down to Gore Street, presenting a podium of three to four storeys. This streetscape appearance is broken into three elements, comprising a stronger central element which is four storeys high, and two elements that sit either side to three storeys in height and with various setbacks to the levels above. Some parties and experts were critical of two elements of the design, being the cantilevering of the first and second floors closer to the street edge than the slightly recessed ground floor, and the creation of two large 'C's (one reversed) framing the first and second floors. In contrast, we consider these design techniques to be a clever reference to the Victorian verandahs in the surrounding residential area, while adding elements of depth, light and shade to the overall façade.
9. We do not share Mr Hutson's criticism of the lack of vertical rhythm in the façade to Gore Street. Instead we consider the breaking of the façade into three distinct elements to represent a suitable breaking down of the elevation, while recognising that a larger and therefore more consolidated built form is an appropriate expectation in this activity centre context.
10. Other criticisms were made of the setbacks to the upper levels, and the use of a mansard type treatment to enclose the upper three levels. We accept that what is proposed is not a true mansard style roof in a historical sense. That is not what is intended or expected in this location. However we do find that the mansard style treatment to the upper levels in a dark material will assist to draw the eye to the lower levels and make the upper levels appear more recessive in streetscape views.
11. We do consider however that two changes should be made to the Gore Street elevation in order to ensure that an appropriate transition is made between the development and the adjacent residential area. Firstly, we accept the evidence of Mr Hutson in part, and consider that greater setbacks should be employed to the upper levels of the development as viewed in the northern half of the Gore Street elevation. We consider that such increased setbacks would achieve a much more appropriate and contextually relevant transition in heights within the street. In our view an appropriate setback for level 3 would be to match the depth of the recesses provided to either side of the central four storey podium feature. These setbacks should also be achieved on the southern portion of level 3, where part of Apartment 311 steps towards Gore Street. Above this setback, levels 4 and 5 should be further setback in line with a sightline diagram drawn from the opposite side of Gore Street. We have sought to quantify these setbacks and set them out in the drafted Conditions.
12. Secondly, we are concerned about the success of the proposed white concrete central podium element, in terms of the integration of this material in the surrounding streetscape. We prefer this section of the building to instead be finished in a render, as a clear reference to the strong use of render in the surrounding built form context. With these changes we are satisfied that an appropriate interface to Gore Street is achieved.
13. To Moor Street the building steps down with the slope of the land, to provide a 'street edge' that respects the height of the adjacent two storey Victorian forms to the east. Along this elevation the façade treatment also changes from a largely uniform façade at the Gore Street end which highlights horizontal forms, to a more rhythmic vertical expression at its eastern end in a clear reference to the vertical Victorian facades. Again the upper levels are clad in a mansard style roof material and form. Such a treatment will not mean that the upper levels will not be visible in the streetscape, but rather will be an appropriately recessive element.
14. We are concerned by the extent of plain concrete walls at ground floor and the elevated 'basement' to both the southern and northern elevations. Much discussion was had during the course of the hearing as to alternative methods of cladding this section of the building. In the end we agree with the suggestion from Mr Cicero that a rough cut bluestone finish would be appropriate.
15. A more robust and taller built form is proposed to the northern elevation, which is appropriate given the site's context to the Safeway car park to the north, a potential future redevelopment site itself. We do not share Mr Hutson's concerns regarding the extent of stepping down to the eastern side of this northern façade. This is an interface to development sites[10] within the SSMAC which similarly enjoy policy support for, at least, developments of 5 to 6 storeys in height. We therefore consider that the provision of a podium of five storeys in height with two recessed levels above will likely intergrate well with the future built forms in this part of the SSMAC.
16. Criticisms were also made of the palette of materials proposed within the development. We have already made comment about why we find the mansard roof style finish to the upper levels to be appropriate, and why we find the white concrete finishes to the lower levels should be replaced with more appropriate materials. The remainder of the building is proposed to be clad primarily with patterned concrete and perforated metal finishes. We consider such materials to be an appropriate modern translation of the heavy use of masonry walls and iron decorative detailing found in the many surrounding Victorian buildings. We also consider that the interesting form and arrangement of these materials within the overall façade composition creates an appealing and interesting built form. For these reasons we are comfortable with the choice of materials and their integration into the overall architectural language of the building.
17. We are therefore of the opinion that this proposal is an appropriate response to the context of the site within a Business 1 Zone and the SSMAC, albeit on the interface to the surrounding residential areas. Yes, this building is larger, taller and more robust than those that surround it. That outcome is the direct result of the successful application of planning policy to this Major Activity Centre and the achievement of urban consolidation. However at the same time we also find that the building appropriately manages its built form and external presentation to the various streetscapes, and with some relatively minor changes will achieve an appropriate and reasonable built form response to the opportunities and constraints that present to the review site.

1. Mr McManus submitted that the proposed development achieves an inappropriate outcome in relation to his property at 225 Moor Street, in terms of overshadowing, overlooking and off-site amenity impacts. To assist his submission Mr McManus, who is an architect, prepared a series of shadow diagrams, cross sections and other diagrams to demonstrate what he considered to be an unreasonable amenity impact from the proposed development.
2. Ms Sharp on behalf of the residents of 224 Gore Street also raised concern with the solar access to the side elevation of that dwelling.

1. Mr McManus resides in a two storey Victorian dwelling located within the Business 1 Zone and the boundaries of the SSMAC. Further to the east on the corner of Smith Street is an approved seven storey development. We were also taken to other similarly sized development proposals nearby at 7 Hodgson Street and 237 Smith Street.
2. The issue of residential amenity for dwellings within an activity centre context and a Business 1 Zone is one that is raised regularly in this Tribunal. In the decision of JCT v Bayside CC[11] the Tribunal remarked:

In considering these issues, it is important to recognise that the subject site and the residential development to the west of the subject site are all in the Business 1 Zone. The test for unreasonableness is different in a business zone situation in Major Activity Centre compared to residential street in Hampton. There are different purposes of the zone and different strategic concepts that direct more intensive development and different level of commercial activity to these areas. Similarly, there is no requirement on the application to meet Rescode Standard although they sometimes are useful for comparative purposes.

In attempting to place some perspective of the issues at and near a residential interface I refer to the words of an often repeated decision of Martin Stuart[12]:

The owners and occupiers of allotments at such zone interfaces must both make compromises. The occupier of the residential allotment must accept a lower residential amenity. The occupier of the business zone allotment must accept a possible requirement that the height and intensity of development that may be appropriate elsewhere in the zone be softened or scaled down at the boundary.

In this case the subject site does not abut a residential zone. Whilst it is close to a residential zone, it abuts a residential development that is built up to the side laneway in a hard-edged form within a Business 1 Zone. The applicant has compromised, to a certain degree, in its expectation for development close to the residential interface in an appropriate manner by setting the upper level of the building back 6.8 metres from that rear boundary. The building is also set back at a lower level to accommodate balconies. This seems to be is a reasonable design response in a Major Activity Centre

Residents living next to or inside a Major Activity Centre should temper their expectations of what is appropriate in terms of neighbourhood character and amenity standards because State and Local Planning policies direct a higher form of development of the kind proposed in this application, into the Hampton Street Activity Centre, and that this activity centre will be the focus for a change.

1. We adopt this approach and consider that in this context, the amenity expectations of Mr McManus need to be tempered against the fact that his dwelling is located within the SSMAC where policy encourages, and indeed anticipates, built form of at least 5-6 storeys in height. In our view the anticipated amenity outcomes also need to be tempered against the existing site conditions. Mr McManus' property has an interface to the north, that is to the review site, with a boundary wall which is approximately 6.12 metres high[13], behind which sits a building with a ridge height of 11.87 metres at a setback of approximately 1.8 metres. The rear yard of Mr McManus' property was visited during the accompanied on-site inspection. It is clear that this area is presently subject to high levels of visual bulk and overshadowing.
2. In response the proposed development seeks to reduce the boundary wall to a height of 3.27 metres, and construct a built form with a height of up to 20.77 metres setback some 5.0 metres from the northern boundary, with the levels below setback 3.6 metres. In our view, while the proposed building will be substantially higher, the reduction of the height of the boundary fence and the increased setbacks to the built form will actually improve the receipt of daylight into this area, as well as reduce the appearance of visual bulk. Aside from our view that these aspects will be improved, we find that, when considering the heights and setbacks involved, and having viewed and appreciated the layout of Mr McManus' property, the proposed development will not present with unreasonable levels of visual bulk. In the context of two sites that sit side by side within a Major Activity Centre, we consider this to be a good outcome.
3. In terms of overshadowing, the area of secluded private open space at Mr McManus' property currently is completely overshadowed at the equinox between 9.00am and 3.00pm. That is confirmed by the shadows that form a part of the plans prepared by the Applicant, as well as those prepared by Mr McManus himself. In difference, the proposed development will provide for some solar access at 9.00am. While this does not sound much, we note that the area of secluded private open space in question is a very small area, at ground level, surrounded by structures on all four sides. We consider that in the context of a Major Activity Centre, small enclosed spaces at ground level cannot be expected to receive significant solar access. Considering the existing level of solar access to this space, we consider the outcome to be acceptable.
4. The final issue to address then is one of overlooking. We consider that more should be done to restrict overlooking into Mr McManus' property than is presently provided for in the plans. Our preference would have been to require by way of Conditions the provision of a planter box at the 'ground level' courtyard within the development to ensure that people within this courtyard cannot peer over the boundary fence and look into Mr McManus' property, and that adjoining at 223 Moor Street. We consider that such a planter box would have the combined benefits of restricting overlooking, in a manner which does not increase the height of the boundary fencing and thereby cause additional overshadowing, while providing a filtered view from these two properties to the upper levels of the development.
5. Mr McManus was absent from the hearing when the option of the planter box was discussed. All parties consented to us discussing this option, and the alternative of requiring a higher boundary fence, with Mr McManus, at our accompanied site inspection. At that inspection, Mr McManus requested a couple of days to consider the options, and by e-mail on 12 December he advised the Tribunal that he preferred a 1.8 metre high fence on top of the 2.27 metre high wall, rather than a planer box with a resultant lower boundary wall/fence height. We will accede to this request and require it by way of conditions as a means of restricting what would otherwise be unreasonable levels of overlooking. However in respect of 223 Moor Street we will require by way of conditions the planter box treatment, which we consider to be a better option from an amenity perspective.
6. We will also require the open walkways in front of apartments 106, 107, 206, 207, 306 and 307 to be screened to a height of 1.7 metres. With these changes we are satisfied that an inappropriate level of overlooking will not occur.
7. While none of the parties raised any concern with the amenity impacts on 223 Moor Street, we put questions during the hearing to Ms Heggen about the extent of these impacts. After hearing the evidence, we are satisfied that the property at 223 Moor Street will be appropriately screened from overlooking, have adequate solar and daylight access, and appropriate setbacks to built form.
8. The other external amenity issue raised during the course of the hearing was the solar access to be enjoyed by the north facing windows in the side elevation of the property at 224 Gore Street, on the corner with Moor Street. The shadow diagrams prepared by the Applicant depicts that there will be no overshadowing to these windows at the equinox. While we understand the concern expressed about the extent of shadows during winter, the provisions of the Yarra Planning Scheme direct us to only consider the shadows at the equinox in assessing such amenity impacts.
9. We therefore consider the proposal avoids creating any unreasonable off site amenity impacts.

Are car parking and traffic impacts appropriately resolved?

1. Mr Walsh gave traffic and car parking evidence in relation to the proposed development. It was his evidence that the development provides appropriately in terms of the amount of car parking, turning movements and ramp grades within the site, and traffic movements external to the site. In relation to these matters Mr Walsh's evidence was unchallenged by the parties and is accepted by ourselves.
2. The residents sought to question Mr Walsh on the ability for trucks receiving waste from the site to turn around in Hodgson Street, or reverse in or out of the street. Mr Walsh stated that the waste management plan had been prepared on the basis of the collection of waste by a Council service. He also conceded that the Council truck cannot turn around within Hodgson Street, as occurs when servicing adjacent sites at present. Alternatively, Mr Walsh gave evidence of a private contractor who uses a smaller truck that could use the proposed entry to the basement car park on site to perform a three point turn, and thus enter and exit Hodgson Street in a forward manner.
3. Ultimately, we don't consider that this is a matter which we need to determine. The Conditions as drafted by Council require the endorsement of a waste management plan, and for the pros and cons of Council vis a vis private collection to be determined at that stage. Mr Rantino advised that, after hearing Mr Walsh's evidence, Council would still prefer that approach. We consider that to be the desirable approach, which will allow the Applicant and Council to come to an agreement, to Council's satisfaction, as to the method of waste collection from the review site.

1. Within the remarks above are some changes to the built form and materials which we consider will result in the achievement of an appropriate built form outcome for the site. We will provide for these matters within the Conditions which are set out at Appendix 1. During the course of the hearing some more minor matters arose which we address below and include in the drafted Conditions:

1. The ramp grades for the pedestrian entries off Gore Street are currently too steep to allow for disabled access, and should be redesigned at a grade of 1 in 14, which we are satisfied can be achieved within the present design; 2. At our site inspection it became clear that the plans do not propose to follow the splayed alignment of the existing building to the corner of Gore and Moor Streets. As a result, some of the existing footpath would be lost. We consider it beneficial to the enjoyment of the public realm for this splay to be continued. We note that during our site inspection the Applicant confirmed that was their intention.

1. It was the evidence of Mr Patrick that the depth of the planter beds in the courtyard should be increased to 750mm.

1. We have agreed with Mr Cicero that Condition No 5 should be simplified to allow greater flexibility in the methods employed and described within the Sustainable Management Plan.

1. For the forgoing reasons the decision of the Responsible Authority will be set aside. We will direct that a permit be granted.

Demolition and development of the land with a seven storey building comprising dwellings and a food and drinks premises, use of the land for dwellings, reduction in the car parking provision, waiver of loading bay requirements, removal and construction of crossovers and removal of easements (instrument numbers N542588M and N542587Q) generally in accordance with the endorsed plans

1. Before the development starts, 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 corrected plans (TP113 to TP504, Revision P, prepared by Fraser Paxton Architects Pty Ltd) but modified to show:

1. bicycle parking signage as per clause 52.34-4 of the Yarra Planning Scheme; 2. the window treatments depicted on plan TP312 to restrict overlooking from the south facing windows in apartments 1.08, 2.08 and 3.08 must also be shown o the other relevant plans;

1. any of the following treatments to dwelling 109, 209, 405 and 406 terraces/balconies and the dwelling 309 habitable room windows, where views could be provided within a 9m radius and 45 degree arc of private open spaces and/or habitable room windows: 1. opaque glazing to a minimum height of 1.7m; or 2. fixed screens (maximum 25% transparent) to a minimum height of 1.7m.

1. all dwellings with a primary balcony or roof terrace with a minimum dimension of 1.6m; 2. all communal corridors with a minimum width of 1.5m; 3. a pedestrian zone (with bollards or similar) adjacent to the lift, ensuring the vehicular aisle does not become less than 6.4m; 4. any relevant changes as a result of the endorsed waste management plan; 5. any relevant elements detailed in the endorsed Sustainable Management Plan; 6. any relevant changes as a result of the endorsed acoustic report; 7. a schedule of colours and materials, including samples, with the facades modified to incorporate rough cut bluestone to the ground and basement external walls, and a render finish to the western façade of apartments 101, 201 and 301; 8. provision of 1.0 metre high and 1.5 metre wide planter boxes to the internal courtyard on the north and western sides of the interface to the adjoining property at 223 Moor Street;

1. provision of a 1.8 metre high fence as measured from the ground floor courtyard finished level to the northern boundary of the adjoining property at 225 Moor Street;

1. provision of a minimum 750mm planter depth to all garden beds in the internal courtyard; 2. deletion of the mesh on the northern side of the interface to the internal courtyard; 3. provision of 1700mm high screening to restrict overlooking to 223 and 225 Moor Street along the common corridor adjacent to apartments 106, 107, 206, 207, 306 and 307, in a material which architecturally sits well alongside the design of the balustrades to this side of the internal courtyard. A gap should be provided between the top of the planter box at level 1 and the screen to allow for the landscaping to fall down the side of the planter box; 4. an increase in the setback of apartments 311 and 302 so that they align to the west with the recessed louvred windows located either side of apartment 301; 5. the provision of a 10.0 metre setback to apartment 401 from the western boundary of the site; 6. the provision of a 15.0 metre setback to apartment 501 from the western boundary of the site; 7. provision of a 1 in 14 grade to the pedestrian entry ramps off Gore Street either side of the café; 8. the identification of the location of the roller door entry to the basement on the basement floor plan; 9. extent the outdoor deck area along the southern side apartment 406 to align with the western edge of this apartment;

1. a notation to provide for an external render or alternative finish to the two eastern walls of the development. The notation is to state that such a render or alternative finish is not needed on the eastern wall in the northern half of the site if a new building at 7 Hodgson Street is constructed prior to or concurrently with this building which covers all of this eastern wall. In the event that a new building at 7 Hodgson Street covers only part of the eastern wall, then the render or alternative finish need only be applied to the exposed part of the wall; and,

1. provision of a splay to the south-western corner of the ground floor to match the splay in the existing building on the site, so that no current footpath area is lost.
2. All development and use must accord with the endorsed plans. Any alterations must be approved in writing by the Responsible Authority.
3. Floor levels shown on the endorsed plans must not be altered or modified. Any alterations must be approved in writing by the Responsible Authority.
4. Before the development starts, the easements (instrument numbers N542588M and N542587Q) must be removed from the title.
5. Before the plans are endorsed, an amended Sustainable Management Plan [SMP] to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the SMP will then form part of this permit. The plan must be generally in accordance with the SMP prepared by Fraser Paxton Architects Pty Ltd (dated 28 November 2011).
6. Before the plans are endorsed, an acoustic report prepared by a suitably qualified expert must be submitted to and approved by the Responsible Authority. Once approved, the acoustic report will be endorsed and will then form part of the permit. The report must include an assessment of how the requirements of State Environment Protection Policy N-1 and relevant Australian Standards will be met and must prescribe the form of acoustic treatment to the following (addressing on-site and off-site amenity impacts):

1. the proposed air conditioner units; 2. café plant and equipment;

1. on-site residential amenity to protect against noise from nearby commercial uses.
2. The recommendations and any works contained in the approved acoustic report pursuant to condition 6 must be implemented and completed and where they are recommendations of an ongoing nature must be maintained all to the satisfaction of the Responsible Authority.
3. The area set aside for the parking of vehicles, together with the associated access lanes as delineated on the endorsed plan must:

1. be provided and completed to the satisfaction of the Responsible Authority prior to the commencement of the development hereby permitted; 2. thereafter be maintained to the satisfaction of the Responsible Authority;

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

1. be properly formed to such levels that it can be used in accordance with the endorsed plan; and 2. be drained and sealed with an all weather seal coat

all to the satisfaction on the Responsible Authority.

1. The car stackers must be installed and maintained in accordance with manufacture requirements by a suitably qualified person.
2. The design and construction of the new vehicle crossing must comply with the following:

1. The vehicle crossing shall be constructed in accordance with City of Yarra Standard Drawings and Specifications; 2. The development's finished floor levels relative to footpath and road levels must be such that pedestrian and vehicular access accord with the Australian/New Zealand Standard AS/NZS 2890.1:2004;

1. Council may permit the adjustment of Building Line levels to provide access in accordance with AS/NZS 2890.1:2004. The designer may also need to alter finished floor levels just inside the property in order to provide satisfactory access; and

1. The design and construction of the vehicle crossing must also satisfy the requirements of Council's Community Amenity unit's Vehicular Access into Properties (Info Sheet and Application Form) before a vehicle crossing permit can be issued.
2. All redundant vehicle crossings along the property's road frontages must be demolished and reinstated with paving, kerb and channel of the surrounding area. The cost of these reinstatement works shall be borne by the developer.
3. The trenching and excavation for underground utility service connections by service authorities on Public Highways (Gore Street, Moor Street, Hodgson Street and any other road directly linked with service provisions) will require the reinstatement/rectification of Council road infrastructure to the satisfaction of Council's Engineering Services Unit and at the expense of the Permit Holder.
4. Upon completion of all building works and underground service connections, the footpaths extending along the property's Gore Street, Moor Street and Hodgson Street road frontages must be re-sheeted by the developer in accordance with Council standards.
5. The costs of all of road infrastructure reinstatements and rectification works associated with utility service provision and building works shall be borne by the developer.
6. Any damaged road(s) and footpath(s) adjacent to the development site as a result of the development must be reinstated to the satisfaction of the Responsible Authority and at the expense of the Permit Holder.
7. The development's finished floor levels relative to the existing footpath and road levels must be such that pedestrian and vehicular access accord with the Australian/New Zealand Standard AS/NZS 2890.1:2004.
8. All existing kerb and channel, and road pavement surface levels must not be altered. Council may permit the adjustment of Building Line levels to provide access in accordance with AS/NZS 2890.1:2004.
9. All buildings must be maintained in good order and appearance to the satisfaction of the Responsible Authority.
10. Noise emanating from the development, including plant and other equipment, must comply with the State Environment Protection Policy N-1 and N-2 to the satisfaction of the Responsible Authority.
11. Before the landscape plans are endorsed, an arborist report prepared by a suitably qualified expert to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. The arborist report must:

1. outline measures required to protect the Plane trees along Gore Street during construction; 2. specify any limb removal of the Plane trees along Gore Street. Roots cannot be disturbed within the drip line and the canopy cannot be touched without consent of Council's arborist; and

1. confirm that street trees will be protected in accordance with AS 4970 'Protection of Trees on Development Sites'.
2. Before the plans are endorsed, amended landscape plans prepared by a suitably qualified expert to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the landscape plans will then form part of this permit. The landscape plans must be generally in accordance with the plans prepared by John Patrick Pty Ltd (dated November 2012), but modified to show:

1. The addition of new planter boxes in the internal courtyard as shown on the endorsed plans; 2. The provision of an increased planting area adjacent to apartment 311 as shown on the endorsed plans;

1. Deletion of reference to new street trees (Council will determine the species and location(s) of any new street trees as per condition 24);

1. grades of all ramps shown on plan; 2. detailed planting plan with plant schedule (common and botanical plant names, density, quantities, size at planting and maturity height). The schedule must include the recommendations outlined at paragraphs 9.34 and 9.44 of the John Patrick Pty Ltd witness statement (dated November 2012); 3. planter depths, confirming a minimum depth of 750mm above the basement; 4. recommendations as per paragraphs 9.43, 9.44 and 9.47m of the John Patrick Pty Ltd witness statement (dated November 2012); 5. planter materials, acknowledging that levels 1 and above will require materials that can tolerate the full sun and wind exposure; 6. maintenance details of all landscaping, including: 7. drip irrigation to external landscaping to Gore and Moor Streets; 8. planter box irrigation and drainage;

1. details of the installation methodology for the green walls, including planting and initial establishment requirements and details of the proposed maintenance regime to ensure the integrity of the green wall over its operation life, including plant replacement, irrigation and fertilisation and guidelines for monitoring;

1. ongoing maintenance and management details of all publically accessible spaces; and 2. a detailed lighting plan for all publically accessible areas, ensuring lighting is baffled to minimise light spill.
2. Before the occupation of the development, the landscaping works shown on the endorsed plans must be carried out and completed to the satisfaction of the Responsible Authority.
3. The landscaping shown on the endorsed plans must be maintained to the satisfaction of the Responsible Authority including that any dead or diseased or damaged plants are to be replaced.
4. Prior to commencement of the development the permit holder must make a one off contribution of a maximum of $4140.19 to the Responsible Authority to be used for street tree plantings in Gore and Moor Streets.
5. The development must be provided with external lighting capable of illuminating access to each car parking spaces, storage, rubbish bin, recycling bin, pedestrian walkways, stairwells, lift, dwelling entrances and entry foyer. Lighting must be located, directed, shielded and of limited intensity so that no nuisance or loss of amenity is caused to any person within and beyond the site, to the satisfaction of the Responsible Authority.
6. Privacy screens as required in accordance with the endorsed plans must be installed prior to occupation of the building to the satisfaction of the Responsible Authority and maintained to the satisfaction of the Responsible Authority thereafter.
7. All new on boundary walls must be cleaned and finished to the satisfaction of the Responsible Authority.
8. All piping and ducting, other than for drainage above the ground floor storey of the building must be concealed.
9. Before the plans are endorsed, an updated Waste Management Plan to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. Once approved, the Waste Management Plan will then form part of this permit. The Waste Management Plan must be generally in accordance with the Waste Management Plan prepared by Waste Min (dated February 2012), but must:

1. address OH&S issues associated with waste collection; 2. outline collection methods so as to not block residential streets; and

1. investigate the potential for Council collection through a modified bin store layout/location and management plan (not mandatory).
2. The collection of all waste must be in accordance with the approved Waste Management Plan. Rubbish, including bottles and packaging material, must at all times be stored within the building and screened from external view and be managed to the satisfaction of the Responsible Authority in accordance with the approved Waste Management Plan.
3. Before any development commences, a Construction Management Plan to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the plan will be endorsed as evidence of its approval. The plan must provide for or include the following:

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

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

1. containment of dust, dirt and mud within the site and method and frequency of clean up procedures in the event of build up of matter outside the site; 2. on site facilities for vehicle washing; 3. the location of loading zones, site sheds, materials, cranes and crane/hoisting zones, gantries and any other construction related items or equipment to be located in any street; 4. site security; 5. management of any environmental hazards that the activities on-site pose including but not limited to: contaminated soil, materials and waste, dust, stormwater contamination from run-off and wash-waters, sediment from the site on roads, washing of concrete trucks and other vehicles and machinery, spillage from refuelling cranes and other vehicles and machinery; 6. construction program; 7. preferred arrangements for trucks delivering to the site including delivery and unloading points and expected frequency; 8. parking facilities for construction workers;

1. measures to ensure that sub-contractors/tradespersons operate in accordance with the Construction Management Plan;

1. an outline of requests to occupy public footpaths or roads, or anticipated disruptions to local services; 2. an emergency contact that is available for 24 hours per day for residents and the Responsible Authority in the event of relevant queries or problems experienced; 3. the provision of a traffic management plan to comply with provisions of AS 1742.3-2002 Manual of uniform traffic control devices - Part 3: Traffic control devices for works on roads; 4. a noise and vibration management plan showing methods to minimise noise and vibration impacts on nearby properties and to demonstrate compliance with Noise Control Guideline 12 for Construction (Publication 1254) as issued by the Environment Protection Authority in October 2008, to the satisfaction of the Responsible Authority. In this regard, consideration (amongst other matters) may be given to: 1. using lower noise work practice and equipment; 2. the suitability of the site for the use of an electric crane; 3. silencing all mechanical plant by the best practical means using current technology; and 4. fitting all pneumatic tools operated near a residential area with an effective silencer on their air exhaust port.
2. During the construction, the following must occur:

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

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

1. the cleaning of machinery and equipment must take place on site and not on adjacent footpaths or roads; 2. all litter (including items such as cement bags, food packaging and plastic strapping) must be disposed of responsibly; and 3. all site operations must comply with the EPA Publication TG302/92.
2. Except with the written consent of the Responsible Authority, demolition or construction works must only be carried out between: 7.00 am - 6.00 pm, Monday-Friday (excluding public holidays) and 9.00 am - 3.00 pm, Saturday and public holidays. No work is to be carried out on Sundays, ANZAC Day, Christmas Day or Good Friday without a specific permit. All site operations must comply with the relevant Environmental Protection Authority's Guidelines on Construction and Demolition Noise.
3. The development once commenced, must be completed to the satisfaction of the Responsible Authority.
4. This permit will expire if one of the following circumstances applies:

1. the development is not started within two years of the date of this permit; 2. the development is not completed within four years of the date of this permit; and

1. the uses are not commenced within four years of the date of this permit.

The Responsible Authority may approve extensions to these time limits if requests are made before the permit expires or within three months afterwards.

[1] As the basement partly protrudes above ground at some locations it is officially a storey and so makes the development seven storeys high.

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

[5] [2011] VCAT 2296.

[6] [1999] VCAT 695.

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

[9] We accept the evidence of Mr Talacko that the building achieves such a standard.

[10] We note that two planning permit applications have been lodged to develop tall buildings on the two adjoining properties to the east. While we have not give weight to the pictured built forms, we consider the applications to demonstrate the intent to redevelop these sites.

[11] [2009] VCAT 2064, at paragraphs 35-38 inclusive.

[12] Martin Stuart Pty Ltd v Port Phillip CC [2000] VCAT 887

[13] As measured from the existing ground level within Mr McManus' rear yard according to the survey information submitted by the Applicant.