A permit applicant may propose an alternative solution. If so, the proposal must demonstrate to the floodplain management authority's satisfaction that the relevant guiding principles and objectives can be achieved.

Solutions should be feasible and not pose a burden on future occupants or impact other properties.

1. At first look, a proposal to intensify the number of people residing (as hotel guests) and working on the subject land may seem at odds with risk management steps that seek to avoid intensifying use and development of flood prone land and exposing more people to hazardous flood conditions.
2. However, what persuades us that this risk can be managed under this proposal is the fact that those working or residing (as guests) in the proposed development will be subject to one overarching set of management rules, implemented by one responsible manager, through the auspices of the FRMP. This we see as a strong positive in achieving real and meaningful risk management compared to intensification of the land use by the likes of a multi-dwelling development of the land or an office use and development which would result in a disparate number of people on the land who cannot be easily or readily managed. Such an outcome would likely result in an additional burden on emergency services and possibly putting emergency personnel at risk. A single entity, properly managing the entirety of the site and its occupants can avoid such outcomes.
3. Drawing the above matters together, we find that:
   • The FRMP provides the ability to quickly respond to the flash flooding to prevent egress from the site and even offer shelter to those in the public area. The development therefore offers an opportunity for refuge from the flood and reduce the exposure of people to the flood hazard. There would therefore be a reduction in the risks posed by such flood events.
   • The response to flash flood events would be of limited inconvenience to people in light of the evidence that such events are not expected to extend for periods of 20 minutes or so.
   • Under a longer-term river flood event, the actions under the FRMP to close the hotel and relocate guests is a response that would remove people from the hazard, thereby eliminating the risk. That this can be achieved with no substantive social or economic impact to the wider community and to emergency services is a positive planning outcome that aligns with planning and flood guidelines to avoid developments and land use that increase the burden on emergency services. In effect, the FRMP response would reduce the onsite population to near zero prior to the Yarra River flood event materialising as a hazard to the workers and guests at the hotel. Only nominated hotel management staff would stay onsite to secure the building and ensure all guests have been evacuated. The FRMP provides for such staff to stay in place with the necessary level of provisions and communications to do so safely. Contingency plans for their evacuation, including the use of an inflatable water craft, while of some concern to Melbourne Water, we consider to be an acceptable 'last resort' form of contingency if evacuation of such staff is required.
   • While an evacuation of the hotel may be inconvenient to guests, the only material and substantive consequences are to the hotel operator. As a form of accommodation that is in fact temporary, the inconvenience of being transferred to another hotel pales in comparison to the potential issues from a multi-storey residential apartment building or a multi-tenanted office complex.
   • Implementing the FRMP means that there will be no consequences to other people. People will not be isolated or subject to failed services because there will not be any people on the site over the course of the flood event. The FRMP also remove the risk of people on the site exercising impulsive behaviour to enter hazardous flood water or other such consequences arising from being trapped within a building by the flood.
4. Melbourne Water questions whether the FRMP would be effective and would be implemented. We think that sufficient checks and balances can be in put place through the permit conditions to ensure an effective outcome. As we have noted there is a meaningful benefit in the fact that the site is not under the control of multiple parties that need to be co-ordinated. The use avoids the scenario of resistance from multiple property owners or permanent residents.
5. Our findings about the efficacy of the FRMP and the ability to reduce the level of risk from the flood hazard to an acceptable level leads us to conclude that this particular proposal results in an acceptable outcome in terms of relevant to the objectives of the LSIO and flood management guidelines and policies.

1. As we have noted earlier, the subject site is located in the Chapel Street Activity Centre and subject to the Activity Centre Zone - Schedule 1 (ACZ1). Further the land falls within the Forest Hill precinct. We were taken through the ACZ1 control and its requirements and guidelines in considerable detail. We do not intend to repeat these details here. Nor do we intend to recite applicable policy in detail. This is because the issues with the design, the evidence and submissions have focussed on a limited number of design elements. We record here however that much of what is set out in local policy in terms of design and other planning outcomes are set out in the ACZ1 as design objectives, requirements and guidelines.
2. In respect to land use, relevant objectives include:

To provide a premier shopping, business, civic, cultural and entertainment destination in a local, metropolitan and national context.

To provide a diversity of retail, hospitality, entertainment, medical and community and cultural uses and a range of employment choices including corporate, boutique and incubator offices.

To encourage innovative, high quality and well-designed buildings which complement the existing urban fabric and mixed use character of the Activity Centre.

To manage potential and existing conflicts between residential amenity and hospitality and entertainment uses.

To protect and enhance amenity within the Activity Centre and surrounding established residential neighbourhoods.

1. Part 4 of Schedule 1 sets out centre-wide provisions. Amongst other relevant matters, part 4.4 sets out that a permit cannot be granted to vary a mandatory requirement, while all other requirements are to be met 'unless the responsible authority is satisfied that an alternative proposal is acceptable'. It is also set out that guidelines should be met. All parties agree that this part of schedule means that apart from designated mandatory requirements, all other requirements and guidelines are discretionary. What is in contest in this application are requirements and guidelines about height and massing, interface setbacks and overshadowing. We discuss these further below.
2. Clause 5.1 of Schedule 1 contains a precinct map. The map indicates the subject site to lie in sub-precinct Forrest Hill 9 (FH-9), designated for side street uses, with an interface to River Street where removal of vehicle crossing conflict are encouraged to be removed. Laneway movements are to be improved.
3. Precinct objectives include:
   • Reducing car dependency and car parking rates within Forrest Hill and reduce vehicle congestion by encouraging amongst other outcomes, car free development.
   • Encourage appropriate scale, setbacks, built form, materials, articulation, landscaping and integration with surrounding built form.
   • Develop a predominantly higher density precinct where new buildings are of a pedestrian friendly scale and design at ground floor, with upper levels setback where necessary so as to minimise off site amenity impacts.
   • Ensure street walls of new buildings create a sense of street closure by being parallel to the street alignment.
   • Ensure development is well articulated through variations in forms, materials, opening, colours and vertical design elements, incorporates continuous awnings and provides continuous, visible and active (commercial) frontages.
   • Encourage site amalgamation and intensive development on large sites and provide tall, slender building forms rather than bulky monolithic buildings to minimise visual bulk.
   • Within FH-9, precinct guidelines seek buildings that:
     • Create a continuous, well defined street wall to complement a high level of street activity by requiring vehicle access to the rear laneways;
     • Provide a transition between higher built forms to the west and lower built forms to the east; and
     • Provide a sensitive response to the lower scale residential areas adjoining the subject land.
4. To this end, the building requirements for the subject site are a preferred maximum of 18 metres (5 storeys) with a Type 2 interface to River Street and the north and south laneways and a Type 5 interface to the eastern residential area. A Type 2 interface means a 12 metre street wall, a setback of 3 metres above 12 metres and 6 metres above 21 metres. The Type 5 means a 9.5 metre wall abutting residential interfaces with a 45 degree building envelope angled away from the interface above 9.5 metres. No built form is to protrude through this envelope.
5. We take these height and setback requirements when read together with the precinct objectives to be the means by which amenity to the sensitive interfaces are to be acceptably addressed. We therefore do not agree with the Council and Tivoli Road residents that Clause 55 overshadowing or other setback requirements have currency in assessing the design response. If this was intended, then the standards and objectives of these provisions could have been specified. To adopt these additional clauses would make the requirements and guidelines of the ACZ Schedule superfluous.
6. Further we note that under the design guidelines, where the built form has a sensitive interface, greater setback than that specified should be provided.
7. In addition to the increase in height above the preferred minimum, which we discuss below, the design seeks variations that would see some of the built form protrude through the Type 5 interface envelope. There is a resulting increase in shadows to private open space along the interface.
8. This outcome along with the visual bulk of a building above the preferred height limit are the basis of the grounds of the Council and Tivoli Road residents for objecting to the grant of a permit.

Increase in height above the preferred height limit

1. The proposed development extends to ten storeys (or approximately 35.4 metres) at its interface with River Street. It then steps down in two "wings" towards the existing houses in Tivoli Road, which are a mix of one to three storeys adjacent to the review site.
2. The height of the proposed building along this boundary is proposed to be no more than 8.2 metres, below the maximum of 9.5 metres. However, the height addressing River Street is almost twice the preferred maximum height of 18 metres or 5 storeys.
3. Council acknowledges that this requirement is discretionary, albeit on a conditional basis. It says the height at effectively double the preferred height will result in excessive visual bulk and is arguable that the conditions to exercise such discretion have been met. It says that while the building includes community benefits, it believes these are not significant because the benefits are what the scheme requires. This suggests that what the scheme means by 'significant' is in addition to the benefits sought by the planning scheme.
4. The Council's position is supported by the Tivoli Road residents, who say that the effective doubling of the preferred height will result in excessive visual bulk when viewed from their rear facing windows and private open space areas.
5. The applicant says the increased height is acceptable and is necessary to provide for the hotel use and achieve the benefits they say will flow from the proposed use. It says that the increasing scale from east to west, from its two storey scale to ten storeys provides an effective mediation between the taller buildings to the west in the Forrest Hill precinct, and the lower form of the residential buildings in Tivoli Road. Mr Milner and Mr Pagliaro observe that the tower opposite the subject land (on the west side of River Street) is 20 storeys. It is their opinion that the 10 storey scale along this interface provides an appropriate transition.
6. We agree that one design objective of the precinct is to provide for a transition in scale. This we believe at first instance to be the role of the preferred maximum building height in combination with the designated building setbacks and interface envelope. However, the maximum height is not mandatory and there is discretion to increase this height if a significant community benefit can be demonstrated and the objectives, requirements and guidelines about visual impact and overshadowing for can be met with increase upper level setbacks.
7. For the reasons that follow, we find that the proposed height of 10 storeys will provide a satisfactory transition between the higher forms to the west and the lower forms in Tivoli Road:
   • In the present case, the proposal with the modifications proposed by the applicant during the hearing (Revision D) would be entirely within this envelope save for a two storey element of the upper level lift shafts set against the main tower and minor intrusions by roof top elements of various wings. The Tribunal finds that this intrusion is acceptable given that this portion of the built form is set back approximately 18.5 metres from the nearest residential abuttal at 9 and 7 Tivoli Road. Other properties with a direct abuttal, from 11 to 15 Tivoli Road, are set back a further 14.14 metres for a total of more than 22 metres).
   • The existing boundary wall to the residential abuttal (now to be retained) together with the relatively shallow depth of the open spaces results in limited views from the ground level of the residences to the upper levels of the proposed building.
   • No 9 Tivoli Road has a raised deck forming its open space, limiting the height of the solid boundary wall at this point to 4.67 metres from the height of the deck; however this has been augmented with a fence extension and extensive planting so that view to upper levels from the deck level are still likely to be limited.
   • From second level west facing rooms of the Tivoli Road residences, views to the upper levels will be possible however we observed these were generally from bedroom windows. Main living spaces are located at ground levels and would have limited views to the higher elements due to the common boundary wall.
   • Under the amendments included in Version D plans, the changes in shadow casts over the private open space of the Tivoli Road residences is reduced to an acceptable level, an outcome which we address below.
8. We also consider that the exercise of discretion to allow the increase above the preferred height and incursions into the interface envelope to be available to us. We give weight to the fact that the proposed use as a residential hotel there is a significant benefit in introducing a use that will assist in stimulating economic activity within the precinct.
9. The Council disputes that this would qualify as significant since it is merely achieving an objective of the planning scheme. However we agree with the applicant that the proposed use as a residential hotel would result in a significant community benefit because it would contribute to the overall precinct objectives of encouraging employment opportunities diverse development within the Forrest Hill precinct.
10. Mr Dimasi's evidence has been helpful in identifying that the proposed use does qualify as a significant community benefit. It is his evidence that despite the objectives set for the Forrest Hill Precinct to achieve diverse development with a significant emphasis on employment in a "true mixed use precinct", what has been achieved is in fact heavily biased towards residential development. He has tabled statistics for the period 2011 to 2016 that indicated within the total Activity Centre, the number of dwellings increased by 81.3%while the residential population increased by 88.5% in comparison to the number of workers that increased by just 22.1%. For the Forrest Hill precinct the comparison was more stark, with the number of dwellings increased by 338% and the residential population increased by 335%, while the number of workers increased by only 18.6%.
11. In Mr Dimasi's view, this trend has if anything worsened since 2016. He said that his site inspections carried out over the period May to September of 2019 indicates a significant number of commercial vacancies within the Centre, while recent approvals will lead to a further 25% growth in residential apartments.
12. We agree with Mr Dimasi that the proposed use for the review site including its entertainment and meeting facilities would provide a significant source of long-term employment for the precinct, which we agree is an objective of the scheme. However, a residential hotel would also support retail, hospitality and other commercial activity by providing appropriate residential and meeting/conference facilities and attracting tourist and visitors to the activity centre.
13. An additional influx of guests to a residential hotel is more likely to support local retail and commerce than permanent residents, since it will provide a regular turnover of "high value" visitors that are potential customers for precinct.
14. While we are not persuaded that community benefits must be direct and local to qualify as "significant", in this instance we find however that this is likely to be the case.
15. Finally, we are not persuaded that contributing to the diversity of uses within the Forrest Hill precinct should not be regarded as significant since it is simply meeting the objectives set for the precinct. The evidence that these objectives are not being achieved was not challenged by the parties.
16. For the reasons outlined above, we find that the proposed use will result in a significant community benefit and we have given this some weight in concluding that the additional height sought is acceptable.
17. In respect to the second limb of the conditional warrant to vary the exceeding the preferred maximum building height, we rely on our findings about the amelioration of visual impact and overshadowing through the adopted setbacks and lowered wall heights at the sensitive interface to the Tivoli Road residences.

1. The shadow analysis provided in the application drawings indicate that the proposed building would cause some additional overshadowing to No.s 7 and 9 Tivoli Court, with no further impact on the residences to the north.
2. The Council submitted that the additional overshadowing is unacceptable, given the limited amount of open space available to these residences and the degree of shadowing already occurring due to the height of the boundary walls. Council cited Standard B21 of Clause 55 as an indication that the additional overshadowing would be unacceptable, while acknowledging that this standard does not apply in the present case.
3. The applicant said there is no basis to apply Standard B21 in the planning scheme, and instead we should be guided by the Type 5 interface guideline that they say is intended to deal with the overshadowing between the activity centre and adjacent residential lots. They say the implication of this measure is that overshadowing should be minimised, not eliminated altogether. Mr Milner gave evidence that the extent of additional shadowing to No. 7 and No. 9 was relatively minor and in his opinion, would be acceptable.
4. For the reasons we set out earlier, we agree that Standard B21 is not a relevant guide given the planning scheme provides a recommended interface conditions through the auspices of the ACZ1.
5. We observe that the review site is a little unusual in that the eastern boundary is irregular, with No.'7 and 9 Tivoli Road extending further westward than the residences to the north. This results in two interfacing boundary conditions along the north and west boundaries of No. 9 Tivoli Road. The effect is that the northern interface from No. 9 Tivoli Road has minor incursions into the 45 degree setback that are contributing to the overshadowing. Notably the lift overruns and service areas of the main tower addressing River Street that also intrude into the 45 degree setback are not contributing to the overshadowing. Mr Pagliaro identified that the overshadowing would be due to built form along the northern wing of the proposal.
6. Subsequent to this evidence, the applicant provided additional analysis to indicate where the additional shadowing was arising from and possible adjustments to reduce this impact. These were illustrated in Drawings marked Revision D and include changes to the room layout at Level 03 to eliminate three standard guest rooms and replace them with two shallow rooms, increasing the setback from the south (shown in plan TP-155, Revision D); a consequential change to the shape of the roof top landscaped terrace at level 04 (in plan TP-156, Revision D); and a minor adjustment to the two eastern most rooms on level 05 (TP-157, Revision D) to increase the setback from the south.
7. Section K-K (TP-310, Revision D) illustrates that this effectively eliminates any intrusion into the 45 degree interface measure from this part of the building.
8. The revised shadow analysis provided in Revision D indicates that additional overshadowing to No.'7 and 9 Tivoli Road is almost completely eliminated through to 1pm and with only a minor increase at 2pm.
9. We consider that the changes provided in Revision D plans are required in order to bring this part of the development into conformance with the interface measure and so support the increased height. We accept that the remaining additional overshadowing is relatively minor and is acceptable for an interface between residential development and an activity centre.

1. The Council argues that the width of the building facing River Street results in a "slab-like" form that has the result of increasing the visual impact of the building when viewed from the residential abuttal to the east, and also from River Street.
2. Council referred to the precinct objectives set out in Clause 5.1-2 of the ACZ1 which, in addition to objectives generally encouraging "a vibrant, higher density, true mixed use precinct", contains objectives we set out earlier about the scale and building, notably, the provision of tall, slender forms rather than bulky monolithic forms 'in order to minimise visual bulk'.
3. The applicant relies on the evidence of Mr Hutson who was of the opinion that the building is sufficiently articulated from both the perspective of River Street and Tivoli Road. His evidence was that the composition of materials and details are responsive to the setting and will result in a very high standard of architectural design.
4. He considered that the limited width of River Street along with the canopy above the second level, would limit direct views to the front façade, so that the predominant view to the development would be an angled view from the north and south approaches. From this view, the building would appear to be relatively narrow, with the pedestrian scale base well defined by an elegantly detailed canopy.
5. From the east (Tivoli Road) his opinion was that the stepped "wings" adequately broke up the width of the building. He did not think further articulation by material change was necessary but offered the opinion that a change to a more reflective surface for the upper levels of the lift core could be made if we came to a view that further articulation was required.
6. We find the evidence of Mr Hutson persuasive. We agree that the River Street image will largely be established from diagonal views as the site is approached from either the north or south.
7. We also agree that the clear delineation of the pedestrian level provided by the canopy together with the change of material at this level to provide a distinctive colour to the base, will further reduce the apparent visual bulk of the tower. We are therefore satisfied that from River Street, the proposed building will satisfy the objective of avoiding a bulky monolithic building and instead achieving a slender form, at least form the main pedestrian approaches.
8. We agree that the stepped wings to the east will adequately break up the broad form to the tower when viewed from the residential abuttal. We are also mindful that views from the private open spaces and living spaces of the residences are somewhat limited.
9. We acknowledge that there are longer distance views to the development possible from the south-east, as illustrated in the photo-montages. In these views the development may well tend to be read as a whole; however we are satisfied that it is sufficiently articulated so that it will read as a collection of related vertical built forms rather than a single bulky mass.
10. Taking into consideration the extensive stepping of the two wings, and the setback of the upper parts of the tower, we consider further changes to the upper level materials is not necessary.
11. For these reasons we find that the presentation of visual bulk of the proposed development to be acceptable.

1. The proposal includes a 211m2 function area and a 95m2 pre-event/bar area, both located in the north-western wing of the building. A restaurant and bar of some 329m2will cover much of the ground floor of the main, eastern wing of the building. These components of the proposal are apprehended by the adjoining residents to be a source of amenity impacts (noise, vibration, patron behaviour and traffic). They oppose the proposal on the basis that the amenity impacts have not been properly addressed in the application and that because planning permission for liquor licences covering the entertainment areas has not been included in the application, it is piecemeal.

1. Submissions for Mr Welsh and Ms Blundy contend that:
   • The entertainment facilities are said to a substantive area of some 635m2, that the applicant acknowledges will require planning permission to operate as licensed premises.
   • The applicant further has made it clear that it intends to operate these facilities as licensed premises.
   • The lack of details about the operation of the entertainment facilities and a failure to apply for the liquor licence concurrent with the use and development permit prevented the Council and now prevents the Tribunal from being able to properly consider the application.
2. The residents contend therefor that the application is piecemeal and is either invalid, or in the alternative incomplete, failing to put forward a holistic and integrated proposal before the decision maker. Submissions refer to and rely on the High Court decision in Pioneer Concrete[7] to support the view that the use had not been fully defined in the application and is therefore an invalid application.
3. In short, the submissions for Welsh and Blundy put forward the proposition, relying on the reasons in Pioneer Concrete,[8] that severing the application for a liquor licence from this application prevents a full and proper consideration of the planning issues (in this case the amenity related impacts of licenced venues) and, if it were to be approved, may compromise a full and properly independent assessment of a later liquor licence application in light of such a previous approval.
4. The applicant's response is that a residential hotel includes by way of definition of its use, a function area and associated activities such as dancing and entertainment. Thus, the use does not require a separate permission. It agrees that when it does apply for a liquor licence, that will necessarily require a permit application under clause 52.27. It says that this is when matters relevant to liquor licensing will be assessed and dealt with. Until such time as it does, the space can be used for unlicensed activities such as conferences or other activities, as can the restaurant.
5. We were presented with a series of decisions from other divisions of the Tribunal that support both points of view. It is clear to us that on reading these decisions, each case must turn on its facts and circumstances.
6. Here, the use of the land being sought (and its development) is for a residential hotel. The definition of such a land use is:

Land used to provide accommodation in serviced rooms for persons away from their normal place of residence. If it has at least 20 bedrooms, it may include the sale of liquor for consumption on, or off, the premises, function or conference rooms, entertainment, dancing, amusement machines, and gambling

1. There is no substantive dispute that by its definition this land use definition includes the activities that the residents apprehend will be a source of amenity impact. In our view, this definition in part distinguishes the permit application from that considered in Pioneer Concrete. In the latter, what was argued before the court was the fact that important activities and development necessary for the operation of the quarry for which planning approval was being sought had not been included in the permit application.
2. Here there is no argument that the convention centre and restaurant, along with various associated uses of these facilities are included in the application by the encompassing nature of the land use definition and within the plans that are relied on over the course of the permit application. What is applied for at the moment is unlicensed venues. And that is what we can consider and assess.
3. Licensing of the venues is a separate planning permission. While there may be some overlap in terms of the forms of amenity impacts that can arise from these venues when licensed or not, the matters to be considered in respect to licensing these venues can nevertheless be separately considered. The purposes of Clause 52.27 and the decision guidelines emphasise that what is under consideration in a liquor licensing permit application are matters relating to the licensing of the venue and the effects on amenity due to the consumption of alcohol. The balance of outcomes in such an application will be for others to consider and weigh up. Our findings in respect to the use of these unlicensed venues should not be taken as a tacit approval of these facilities being licensed.
4. Given the above we do not consider that the application is piecemeal in the circumstances before us.
5. In terms of the potential amenity impacts that could arise from the unlicensed venues that are incorporated into this proposal, it may be true that the initial application material was deficient in information. However this is a de-novo review. We are satisfied that the information before us is sufficient to determine whether the function area and restaurant uses included in this residential hotel could lead to adverse and unreasonable amenity impacts.

Can noise and other potential amenity impacts be reasonably managed?

1. The residents acknowledge that while ancillary to the principle 'residential hotel' use, they submit that insufficient details about the function centre and restaurant's hours of use and other management controls have been provided. They assert that there will be 'substantive' area given over to 'entertainment' and there has been insufficient information provided about their operation to assess the potential impacts from loud voices, music and 'back of house activities'.
2. As we have set out above, we disagree that insufficient information is before us to assess the potential amenity impacts on the neighbouring residential areas. We have the benefit of expert acoustic evidence, along with submissions of all the parties about the potential for adverse amenity impacts and proposed conditions to regulate the venue activities. Having considered the submissions and evidence, we are persuaded that the risk of unreasonable amenity impacts on the residential areas is low. Our reasons follow.
3. The primary concern of the residents is the function venue. This has an area of 211m2, with a further pre-event/bar area of 96m2. Entry to the latter is from the Porte Cochere. These areas are contained within the ground floor level of the north-east wing of the building which backs onto the common boundary with the residences along Tivoli Road. Internally, the function area is separated from the common wall with these residences by areas allocated for kitchen preparation, storage stairs and back of house facilities and circulation. We are told that food preparation will occur in the main kitchen contained within the basement level of the main building. Staff and other back of house services will occur via a defined path between the two wings. During such events an acoustic curtain is to enclose the circulation path between the main building and north-eastern wing.
4. The design layout and other feature are shown in the extract of TP-152 below. This extract is from Exhibit PA42 - Version D Plans, which was circulated to show amendments to the substituted plans that could be included by way of conditions to address the design and amenity issues raised by the residents and the Council.

Figure1: Layout of ground floor showing restaurant, function area and pre-event/bar area.

1. The amendments included the inclusion of lifting platforms to assist in moving furniture, food or other materials between the two buildings and the inclusion of a bicycle store for staff. The plan also nominates that the existing common boundary wall will be retained and a new wall built inside the boundary.
2. It is Mr Tardio's evidence that the combination of design and management factors will limit the escape of noise and control vibrations. These include:
   • The separation of the event space from the common boundary walls by the intervening kitchen preparation and storage spaces and the back of house circulation corridors would attenuate noise transmission to a very high degree.
   • The orientation of the function and pre-event/bar area entrances into the Porte Cochere and away from the residences.
   • An acoustic curtain, constructed using specified material of particular density would reduce noise higher frequency noise from back of house activities between the two buildings. It will also assist in reducing patron noise along the easement corridor/lane from the Porte Cochere and event space entry but will not be as effective for lower frequency bass noise.
3. In addition to the geometry and layout of the event spaces, the floor above will contain employee facilities and other hotel service spaces. This floor serves to separate the event space from the upper guest rooms. The version D plans also indicate that the double skin wall would be built on the boundary to this level.
4. We think it is appropriate to first adopt the Version D plans. We consider that the addition of a double skinned wall to the common boundary and additional means to manage back of house activities between the two buildings are sensible and appropriate means of reducing noise and vibration transmissions. It was an assumption inherent to Mr Tardio's assessment.
5. We also put to Mr Tardio that additional steps such as a further internal door in the back of house circulation corridor around the function area might be necessary to form an airlock. His evidence is that there would be sufficient control over noise transmission along this route to not warrant such a step. We accept this evidence. His estimates of reduction in noise transmission without such a door indicate that significant reductions, in the order of 45dB to more than 85dB for low and high frequencies respectively, are achieved already.
6. Mr Tardio's has also calculated the upper music noise limit to be of the order of 103dB(A) in order to achieve compliance with SEPP N-2 levels. While his evidence is that such a noise level is unlikely to be reached in a hotel event space, being akin to a nightclub, we have a adopted a more cautious approach that will require that all recorded or live music be transmitted through amplification control to ensure sound power levels are below this limit.
7. We agree with his evidence and the submissions of the applicant, that to some degree the control of noise from the function centre will in any event have to be regulated by the hotel in order to manage the amenity of resident guests staying within the rooms above and around this venue.
8. We accept that the restaurant will for similar reasons be managed in order to maintain a restaurant amenity suitable to patrons and hotel guests and so not be a source of amplified music above background levels. We have included a condition to ensure that this will be the case.
9. Overall, we are satisfied that the amenity of residential areas has been or can be addressed through the design in conjunction with appropriate permit conditions that will manage amplified music levels. We consider that the design layout directs patron noise away from the residential areas, and that patron behaviour can be managed to reduce impacts to local residents and guests of the hotel. We have included requirements in the permit conditions to ensure this will occur.
10. Apart from music, patron or back of house noises, the residents apprehend that events held at the function centre could lead to increased traffic along Tivoli Road. Particular concern was expressed about guests departing eastward who may use Tivoli Road to return to Toorak Road.
11. This was not a traffic circulation issue that Mr Walsh had considered specifically in his traffic impact assessment. His evidence has, however, addressed general traffic circulation and movements.
12. We draw from this evidence that even when there are vehicles parked in the porte-cochere, there is sufficient room for other vehicles to circulate through this access. We therefore accept that as patrons leave the venue, the vast percentage of vehicle movements will be via the River Street and Toorak Road path. If some vehicles were to avoid the Porte Cochere, we consider that those travelling east bound may indeed use Tivoli Road to regain access to Toorak Road. However, we do not consider that the volume of traffic will be so great as to be detrimental to an amenity in the context of a residential neighbourhood that is some 200 metres from Chapel Street and lies on the boundary of the Chapel Street Activity Centre.
13. For these reasons we conclude that the proposal would not have an unacceptable impact on the amenity of the residential areas by way of noise or traffic movements associated with the function centre and restaurant.

1. Although not a ground of refusal, the Council submitted that if a permit were to be granted the proposed use of off-site car parking facilities should be secured by formal arrangements. It also raised concern about the operation of the porte-cochere for access into and out of the hotel, principally that its operation and provision of car spaces may result in queueing within River Street.
2. The applicant relies on the evidence of Mr Walsh about such matters. He estimates a demand for no more than 39 car parking spaces[9] on a comparative basis with other hotels that his firm has surveyed. The Council does not dispute this estimate. Nor does it dispute that spaces can be provided for off-site. The issue for the Council is that this number of spaces should be secured by the hotel operator for use by its guests to maintain availability.
3. The applicant opposes any suggestion of entering into a lease that would require it to secure these spaces. It maintains that there is sufficient capacity in a number of commercially operated car parks and that it should be allowed to operate on a pay-for-service or other commercial arrangement like other hotels in the area do.
4. It relies on the evidence of Mr Walsh that the porte-cochere, with its capacity of three parked car parks while others can pass freely through the accessway to be sufficient.
5. In the hearing, the operation of the porte-cochere was not hotly pursued. We consider that it is not a determinative issue here. Mr Walsh's evidence about vehicle movements in and out of the hotel's porte cochere for guest movements was not challenged.[10]
6. We find Mr Walsh's evidence on this point generally supportive of the operation. He empirically estimates a peak hour movement rate of 0.3 movements per room, equating to 23 cars moving through the porte-cochere. At an average parking duration of two minutes per drop off, the three spaces would appear to be able to accommodate such a peak. His queueing analysis is said to support this without any queueing in River Street, the principle concern of the Council.
7. We consider that with proper management of the porte-cochere, sufficient parking and passing capacity has been provided for to accommodate the predicted demand for vehicle movements. We see no reason to question these vehicle movements rates. We have included conditions for a porte-cochere / traffic management plan to be in place to manage this aspect of the hotel's operation.
8. The issue most hotly pursued by the Council was the need for the hotel to have secured the 39 car parking spaces for guests. The primary response of the applicant is that to a large extent the demand for such parking will be self-regulating. This means that the hotel will advertise its rooms on the basis of there being no on-site car parking and then prospective guests will make a choice of whether to stay at the hotel. It also points to the fact that some other hotels in the area rely on local commercial car parks to provide guest spaces, though details of the commercial arrangements was lacking.
9. We first note that what is in issue here is not whether car parking should be provided for. The applicant accepts that its operation may result in demand for up to 39 car parking spaces while the Council is comfortable with the provision of spaces off-site and the estimated demand for such spaces. What is in dispute here is whether or not the use component of this permit should be tied to the hotel operator securing such spaces regardless of demand by its guests. The Council says the operator should lease the spaces. The hotel says provisions of the spaces should be on a demand basis given what it says is the ample capacity of facilities in the area.
10. We put to Mr Walsh and he agreed that the use of sharing off-site car parking is essentially a centre wide parking approach. We are comfortable with such an approach given that there are a number of 24-hour car parking facilities in the area convenient to the hotel site or by a valet service. We also acknowledge the availability of alternative transport to the site via rail and tram and its accessibility by taxi or other transport operators. The relatively low demand is likely to be realistic.
11. What is lacking in the car parking demand assessment however is an assessment of the availability of spaces in the local car park facilities. Mr Walsh's written evidence lacks any empirical data and in oral evidence it is limited to remote observations he made of available spaces on the roof top deck of one of the nearby commercial car parks.
12. While we accept that a centre wide basis is appropriate to address the car parking demand, we are not persuaded by the applicant that it is not necessary to demonstrate it has secured some off-site parking arrangements to support this approach. At the very least, we consider that it is appropriate for the operator to be able to demonstrate it has agreements with one or more car parking operators; agreements which it says it would be entering into in any event. We do not think it is necessary to require that these agreements be for leased spaces, as put forward by the Council, given the capacity in and around this activity centre.

1. For the record, the amended plans have increases setbacks along the northern boundary to 4.5 metres. On this basis the Council and adjoining land owners no long rely on the grounds of equitable development. In fact, the adjoining landowners, represented by Metropol Planning Solutions Pty Ltd, indicated their support for the proposal.

1. As we have set out above, during the hearing the applicant tabled further revisions to the plans labelled "Revision D". These address a number of changes to address overshadowing that were discussed previously, but also incorporate a number of corrections and clarifications that were discussed during the hearing. These include heights of service lifts and other elements to protect property from flood inundation.
2. The relevant drawing numbers are TP-000; TP-152; TP-153; TP-155; TP-156; TP-157; TP-158;TP-159; TP-160; TP-161; TP-200; TP-201; TP-202; TP-203; TP-300; TP-301; TP-302; TP-303; TP-400; TP-401; TP-402; and TP-403.
3. Our decision relies on the amendments shown in these plans. Accordingly, we have included conditions to amend the plans in accordance with these revisions. We do so on the basis that the only people materially affected by these changes are the residents of Tivoli Road, who had an opportunity to view and respond to these plans.
4. Other conditions follow from our reasons as well on the basis of the extensive submissions made in response to the draft conditions of the Responsible Authority and the permit applicant. We do not intend to recite these here but record that we have given due consideration to them in the course of preparing the conditions set out in Appendix A of this order.

1. We have noted several times in these reasons that planning seeks to balance a variety of planning outcome to deliver a net community benefit. Our reasons have explained why we have concluded that this is achieved under this proposal. Our findings highlight that the flood risks posed by the types of flood events which the land is subject to can be effectively managed. We have found that subject to some further amendments, the design response is acceptable when assessed against the DDO requirements, notwithstanding the fact that the building exceeds the preferred maximum height. We also have found that the design response and management of the hotel operations addresses the potential for amenity impacts from the restaurant and function centre. We have accepted evidence that the proposed use supports many of the economic objectives and community benefits sought under the scheme from a mix of land uses with the Forest Hill Precinct and more broadly the Chapel Street Activity Centre.
2. Given these findings we conclude that it is appropriate to set aside the decision of the Responsible Authority and direct that a permit be granted subject to the permit conditions that we have included in this order.

• Use and development of the land for a residential hotel in an Activity Centre Zone and Land Subject to Inundation Overlay, with associated reduction in car parking and reduction in the bicycle parking requirement.

1. Before the commencement of the use and development, one (1) electronic copy of plans drawn to scale and fully dimensioned, must be submitted to and approved by the Responsible Authority. The plans must be generally in accordance with the plans prepared by Carr Design Group (Project No. 17071, Drawings No. TP-150 Rev B, TP-151 Rev B, TP-152 Rev C, TP-153 Rev C, TP-154 Rev B, TP-155 Rev C, TP-156 Rev C, TP-157 Rev C, TP-158 Rev C, TP-159 Rev C, TP-160 Rev C, TP-161 Rev C, TP-162 Rev B, TP-200 Rev C, TP-201 Rev C, TP-202 Rev C, TP-203 Rev C, TP-300 Rev C, TP-301 Rev C, TP-302 Rev C and TP-303 Rev C, TP-304 Rev A and TP-305 Rev B, TP-307 Rev A, TP-308 Rev A and TP-309 Rev B (all dated 28 August 2019 and marked 'Amended Plans') but modified to show:
   • (a) Dimensions of the porte-cochere and the associated vehicle crossings (including splays / sight triangles);
   • (b) Gradients within the porte-cochere in accordance with Design Standard 3 of Clause 52.06-9;
   • (c) At least 16 on site bicycle parking spaces;
   • (d) Dimensions of the bicycle parking facilities (including rack spacing) generally in accordance with the Australian Standards to the satisfaction of Council;
   • (e) Screening of any east-facing habitable room windows, windows to the common hallways and terraces that are located within 9m of adjoining secluded private open spaces in accordance with Standard B22 of Clause 55;
   • (f) Privacy screening to the south-eastern hotel room at level 3 to prevent unreasonable overlooking from its northern windows to the northeast, or a sightline diagram indicating there will be no unreasonable views;
   • (g) The following changes as required by Melbourne Water, without any increase in the overall building height and wall height:
     1. The 'fixed windows' on the proposed western elevation must be shown to be flood proofed/tanked to the satisfaction of Melbourne Water.
     2. The floor level for the entrance to the goods lift set no lower than 5.18 m to Australian Height Datum.
     3. The floor level for the employee entry set no lower than 5.18 m to Australian Height Datum.
   • (h) A schedule of proposed external finishes (including roofing materials) and colours of all buildings (including colour swatches) generally in accordance with the advice of Carr Architect document dated October 2019 presented in the VCAT proceeding P2386/2019;
   • (i) Modification of the Gas Meter Cupboard door opening so that the door does not open into the proposed easement along the south boundary of the site (this may include a secure sliding door or inward opening doors);
   • (j) Setback of any structures on the northern ground floor and level 1 walls, including the louvres or architectural detailing, so that they do not protrude into the sewerage and carriageway easement along the north boundary of the site;
   • (k) Correction of the East Elevation to show the 'security' structure;
   • (l) Provision of doorways to the central guest rooms at Level 9;
   • (m) Clarification on the East and North Elevation to clearly show all details of Level 1 and 2 of the building;
   • (n) The lift core clearly shown on all elevations;
   • (o) Clarification of the material to be used across the lower part (below ground floor level) of the West Elevation;
   • (p) Consistency between the floor plans, elevations and sections in respect to the location of terraces;
   • (q) An acoustic curtain with a density of not less than 500gsm adjacent to the porte-cochere generally in accordance with Appendix B - sketch plans attached to the statement of evidence of Darren Tardio dated September 2019 in VCAT proceeding P2386/2018;
   • (r) Correction of the depicted height of the goods lift on TP-201 and TP-304 to have the floor height of the lift at 5.180 AHD;
   • (s) Correction of the plans to delete the word 'carport' in the south-western corner of 11 Tivoli Road;
   • (t) Retention of the existing wall adjacent to the eastern boundary with numbers 15, 13A, 13, and 11 Tivoli Road and construction of a new inner wall at the ground floor and first level along this interface;
   • (u) Changes to the plans in accordance with the plans TP-000; TP-152; TP-153; TP-155; TP-156; TP-157; TP-158;TP-159; TP-160; TP-161; TP-200; TP-201; TP-202; TP-203; TP-300; TP-301; TP-302; TP-303; TP-400; TP-401; TP-402; and TP-403, all revision D, as tabled in VCAT proceeding P2386/2019, to address overshadowing to Tivoli Road residences;
   • (v) Any changes required by endorsed or approved plans or assessments completed in accordance with conditions 5 (SMP), 8 (WSUD), 10 (WMP), 12 (Landscape Plan), 14 (Acoustic Report), 35 (Wind Climate Assessment Report), 38 (Porte-Cochere Management Plan) and 34 (Flood Risk Management Plan) of this permit; and
   • (w) Miscellaneous services identified at the eastern boundary of the site (adjacent to 11 - 15 Tivoli Road) in TP-153 to be properly described with a notation that such services are to comply with SEPP N-1.

All to the satisfaction of the Responsible Authority.

1. The layout of the site and the size, levels, design and location of buildings and works shown on the endorsed plans must not be modified without the prior written consent of the Responsible Authority.
2. Except with the written consent of the Responsible Authority, Carr Design Group Pty Ltd must be retained to complete and provide architectural oversight during construction of the detailed design as shown in the endorsed plans and endorsed schedule of materials to the satisfaction of the Responsible Authority.

1. Prior to the use commencing details of off-site car parking arrangements it has secured for the use by guests must be provided to the Responsible Authority.

1. Concurrent with the endorsement of plans, a Sustainable Management plan (SMP) must be submitted to and approved by the Responsible Authority. Upon approval the SMP will be endorsed as part of the planning permit and the development must incorporate the sustainable design initiatives outlined in the SMP to the satisfaction of the Responsible Authority. Amendments to the SMP must be incorporated into plan changes required under Condition 1. The report must address but is not limited to the following:
   • (a) Demonstrating how Best Practice measures from each of the 10 key Sustainable Design Categories of Stonnington Council's Sustainable Design Assessment in the Planning Process (SDAPP) have been addressed.
   • (b) Identify relevant obligations, strategic or other documented sustainability targets or performance standards.
   • (c) Document how the appropriate targets or performance standards are to be achieved.
   • (d) Identify responsibilities and a schedule for implementation, and ongoing management, maintenance and monitoring.
   • (e) Demonstrate that the design elements, technologies and operational practices that comprise the SMP can be maintained over time.
   • (f) Demonstrate how the policy objectives of clause 22.18 of the Stonnington Planning Scheme are to be achieved, including details on plans of how each impervious area is treated, and that all toilets and the irrigation system are connected to the water tank.
   • (g) Commitment to the development of a construction phase stormwater pollution reduction strategy.
   • (h) Achieve a Green Star certified rating of 4 Stars as a minimum.
2. All development must be undertaken in accordance with the endorsed SMP to the satisfaction of the Responsible Authority. No alterations to the SMP may occur without written consent of the Responsible Authority.
3. Prior to commencement of the use, a report from the author of the Sustainable Management Plan (or similarly qualified person) must be submitted to the Responsible Authority. The report must be to the satisfaction of the Responsible Authority and must confirm that all measures specified in the SMP have been implemented in accordance with the approved plan.

1. Concurrent with the endorsement of plans, the permit holder must provide a Water Sensitive Urban Design Response (WSUD) addressing the Application Requirements of the Stormwater Management (Water Sensitive Urban Design) Policy to the satisfaction of the Responsible Authority.
2. The development must incorporate the Water Sensitive Urban Design initiatives detailed in the endorsed site plan and/or stormwater management report.

1. Concurrent with the endorsement of plans, a Waste Management Plan (WMP) must be submitted to and approved by the Responsible Authority. The Waste Management Plan must be generally in accordance with the plan prepared by Leigh Design (dated 9 May 2018), but modified to show:
   • (a) Changes as required by condition 1 of this permit.
   • (b) Any other changes required to waste management in order to comply with noise or other use conditions of this permit.

When approved, the WMP will be endorsed and will then form part of the permit.

1. Waste collection from the development must be in accordance with the WMP, to the satisfaction of the Responsible Authority.

1. Concurrent with the endorsement of plans, a landscape plan to be prepared by a landscape architect or suitably qualified or experienced landscape designer, must be submitted to and approved by the Responsible Authority. When approved, the landscape plan will be endorsed and will then form part of the permit. The landscape plans must be generally in accordance with the plans prepared by ACRE (advertised by Council in July 2018), but modified to show:
   • (a) Any changes as required by condition 1 of this permit.
   • (b) A planting schedule of all proposed trees, shrubs and ground covers, including botanical names, common names, pot sizes, sizes at maturity, quantities of each plant, and soil volume detail of any planter box.
   • (c) Dimensions of the planters and soil volume of the planters.
   • (d) An irrigation design to accompany the landscaping planted in situ.

All to the satisfaction of the Responsible Authority.

1. Prior to commencement of the use, the landscaping works as shown on the endorsed plans must be carried out and completed to the satisfaction of the Responsible Authority. Landscaping must then be maintained to the satisfaction of the Responsible Authority, including that any dead, diseased or damaged plants are to be replaced.

Acoustic assessments, reports and noise management

1. Concurrent with the endorsement of the plans, an Acoustic Report to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the Acoustic Report will be endorsed and will form part of this permit. The Acoustic Report must be generally in accordance with the expert witness statement of Darren Tardio dated 30 September 2019 in VCAT proceeding P2386/2019 but adapted as appropriate for an endorsed permit document, and updated to include/address each of the following:
   • (a) The impact on nearby sensitive receivers from the operation of the proposed development (including noise emission from plant and equipment) as revised in accordance with condition 1 of this permit.
   • (b) The impacts of noise and vibration in guest rooms as may be generated from internal activity areas, including but not limited to gyms, restaurants and function areas, and from plant and equipment or by footfall.
   • (c) Recommendations to address any levels of internal noise or vibration identified to be unacceptable to the amenity of guest rooms.
   • (d) Recommendations to calibrate the music noise limiter to be installed in the function/events space;
   • (e) Recommendations for the construction of the acoustic curtain to address potential patron noise emanating from the porte-cochere area and movements of staff and equipment along the nominated Back of House (BOH) access-way; and
   • (f) Recommendations setting out the details for a noise monitoring system in the function/events space.
2. Before commencement of use, all noise attenuation measures in accordance with the provisions, recommendations and requirements of the endorsed Acoustic Report must be constructed and implemented to the satisfaction of the Responsible Authority.
3. Within 3 months of commencement of use, an Acoustic Compliance Report must be submitted to and approved by the Responsible Authority. The Acoustic Compliance Report must be prepared by a suitably qualified acoustic engineer to the satisfaction of the Responsible Authority. Once approved, the Acoustic Compliance Report will be endorsed and will form part of the permit. The Acoustic Compliance Report must address the following:
   • (a) Patron noise assessment;
   • (b) Asses whether the use complies with the State Environment Protection Policy N-1 (Control of Noise from Commercial, Industrial or Trade Premises);
   • (c) Asses whether the use complies with State Environment Protection Policy N-2 (Control of Music Noise from Public Premises); and
   • (d) As necessary make recommendations to bring the use into compliance with SEPP N-1 and N-2, or otherwise address unacceptable nuisance noise from patrons.
4. Within 3 months of the endorsement of the Acoustic Compliance Report, or within a time agreed to in writing by the Responsible authority, the operator shall have fully implemented all recommendations made in that report to the satisfaction of the Responsible Authority.
5. The level of noise emitted from the premises must comply with State Environment Protection Policy N-1 (Control of Noise from Commercial, Industrial or Trade Premises) and N-2 (Control of Music Noise from Public Premises).
6. Any handling of waste receptacles which include glass bottles and which occurs outside the buildings or the acoustic curtain shall not involve the tipping of bottles from one receptacle to another after 10pm or before 6am.
7. All music from the restaurant, pre-event and any external areas shall be restricted to background music levels only.
8. Before commencement of use of the function/events area, the amplification and loudspeaker system of the function/events area must be fitted with a Noise Limiter and calibrated by a suitably qualified acoustic consultant.
9. Amplified music is not permitted to be played in the function/events area other than through a permanently installed sound system that is calibrated to operate with the Noise Limiter.
10. The Back of House circulation door to the Function Room shall remain closed during events, except for the normal ingress and egress of staff.
11. The main entry door to the Pre-Event area or the doors to the Function Room shall remain closed when live entertainment, including live music and DJs are operating in the Function Room.
12. Patrons must be advised to take account the needs of local residents for peace and quiet after 10.00pm on any day, by displaying a prominent notice at the main exit point(s) with words to the effect of "Please respect our neighbours and leave the area quietly", to the satisfaction of the Responsible Authority.

1. All truck deliveries (other than waste collection) shall only be permitted between the hours of 7am-10pm Monday to Saturday and 9am-10pm Sundays and public holidays.
2. All waste collection shall only be permitted between the hours of 7am-8pm Monday to Saturday and 9am-8pm Sundays and public holidays.

Noise and Amenity Action Plan and use of the function centre

1. Before the use starts, a Noise and Amenity Action Plan (NAAP) to the satisfaction of the Responsible Authority and prepared by a suitably qualified consultant for the whole of the premises must be submitted to and approved by the Responsible Authority. When approved, this plan will be endorsed and will then form part of the permit. The NAAP must address/include:
   • (a) The identification of all noise sources (including, but not limited to, patrons on the premises, patrons entering and leaving the premises) likely to impact on adjoining residents;
   • (b) Measures to be undertaken to address all noise sources identified, including on and off-site noise attenuation measures;
   • (c) Measures to be undertaken in the event of complaints by a member of the public, the Victoria Police, an "authorised officer" of the Responsible Authority;
   • (d) Details of staffing arrangements including numbers and working hours of all security staff, bar staff, waiters/waitresses, on-premises manager, and other staff;
   • (e) Measures to be instituted when dealing with patrons;
   • (f) Hours of operation for all parts of the premises;
   • (g) Lighting within the boundaries of the site;
   • (h) Security lighting outside the premises;
   • (i) Security arrangements including a security policy and security management plan comprising queuing, overcrowding and patron management;
   • (j) Details of operating procedures for appropriate patron management throughout the premises when the function/events space closes;
   • (k) Details of operating procedures for patron management in the event of Flood Relocation in accordance with the Flood Response Plan;
   • (l) Details of operating procedures for appropriate patron queuing, monitoring and access control into the premises;
   • (m) Details of operating procedures for patrons exiting the premises including external monitoring and security patrols of the laneway to the south of the subject land and along Tivoli Road at appropriate intervals including during functions/events after 10pm and immediately after closing on any night;
   • (n) Details of the provision of music including the frequency and hours of entertainment provided; and
   • (o) Any other measures to be undertaken to ensure minimal amenity impacts from use of the function/events space.
2. The function/events space must operate and be managed in accordance with the conditions and provisions of the approved NAAP referred to in condition 27, to the satisfaction of the Responsible Authority.
3. The function/events space must only be operated by the owner of the hotel.
4. The events/function space must only operate at the following times:
   • (a) from 6:00am on any day of the week;
   • (b) until 11.00pm on a Sunday to Wednesday night; or
   • (c) until 12.00am the following Thursday morning, Saturday morning or Sunday morning, or until 12:00am on the morning of a public holiday.
5. Not more than 200 patrons are permitted to use the function/events space and pre-event/bar area at any one time.

1. Concurrent with the endorsement of the plans, a Flood Risk Management Plan to the satisfaction of the Responsible Authority and Melbourne Water must be submitted to and approved by the Responsible Authority and Melbourne Water. When approved, the Flood Risk Management Plan will be endorsed and will form part of this permit. The plan must be generally in accordance with the plan appended to the evidence of Mr Michael Cawood in VCAT Proceeding P2386/2018 titled "Flood Risk Management Plan Hyatt Centric Hotel" dated 20 September 2019, but modified to include/address each of the following:
   • (a) The addition of measures to ensure the relocation of hotel guests who may be away from the hotel following the issue of a Level 1 alert in a Yarra Flood Event.

All to the satisfaction of the Responsible Authority.

1. Any requirements of the Flood Risk Management Plan endorsed under this permit must be implemented to the satisfaction of the Responsible Authority and Melbourne Water at all times.

1. Concurrent with the endorsement of plans, a suitably qualified person must undertake a comprehensive wind tunnel test of the entire development and a Wind Climate Assessment Report that is generally in accordance with the report prepared by Mel Consultants (Report No. 116-18-DE-EWA-00, dated 16 July 2018) must be provided for the written endorsement of the Responsible Authority. Any modifications required to the development in order to ensure acceptable wind conditions must be submitted to and approved by the Responsible Authority as part of the plans for endorsement. The design details of any wind mitigation works must receive the endorsement of the owner/applicant's wind climate experts, referencing the use of architectural features and planting to resolve any identified issues.
2. Prior to the occupation of the development, a report from the author of the Wind Climate Assessment Report, approved pursuant to this permit, or similarly qualified person or company, must be submitted to the Responsible Authority. The report must be to the satisfaction of the Responsible Authority and must confirm that all measures specified in the Wind Climate Assessment Report have been implemented in accordance with the approved Plan.

1. Concurrent with the endorsement of plans, a detailed functional layout plan prepared by a suitably qualified traffic engineer must be submitted to and approved by the Responsible Authority in relation to the widened laneway along the southern boundary of the subject land. The layout plan must include, but not limited to:
   • (a) Dimensions and levels of the widened laneway.
   • (b) Details of any proposed ramp, including the length and gradient.
   • (c) Swept path diagrams showing loading egress movement not relying on adjacent land for circulation.

All to the satisfaction of the Responsible Authority.

1. Concurrent with the endorsement of plans, a porte cochere Management Plan prepared by a suitably qualified traffic engineer must be submitted to and approved by the Responsible Authority. The Management Plan must include, but not limited to, the following:
   • (a) Provision of sufficient circulation space to allow vehicles to pass vehicles parked within the porte-cochere.
   • (b) Measures to minimise the potential for any on-site queuing or the potential for vehicles to queue back towards River Street.
   • (c) Installation of removable bollards or alternative methods to separate the path of travel between vehicles and pedestrians.

All to the satisfaction of the Responsible Authority.

1. The existing footpath levels must not be raised or altered in any way to facilitate access to the subject land without the prior written consent of the Responsible Authority.

1. Prior to a building permit being issued, a report for the legal point of discharge must be obtained from Council and a drainage design for the development must be prepared by a suitably qualified Engineer in accordance with all recommendations and requirements contained in that report. All drainage must be by means of a gravity-based system except for runoff from any basement ramp and subsurface drains which may be pumped. All drainage must be constructed in accordance with the Engineer's design.
2. Prior to an 'Occupancy Permit' being issued, a suitably qualified Engineer must carry out a detailed inspection of the completed stormwater drainage system and associated works, including all water storage tanks to ensure that all the works have been constructed in strict accordance with the Engineer's design and the relevant planning permit conditions.

1. Prior to commencement of use, any existing vehicular crossing made redundant by the building and works hereby permitted must be removed and re-instated as standard footpath and kerb and channel at the permit holders cost to the approval and satisfaction of the Responsible Authority.
2. Prior to the commencement of the development hereby approved, the permit holder must obtain approval from the Responsible Authority to construct or modify any vehicle crossover/s providing access to the subject land.
3. Prior to the occupation of the building, the walls on the boundary of the adjoining properties must be cleaned and finished to the satisfaction of the Responsible Authority.
4. Prior to occupation, access for persons with disabilities must be provided in compliance with the Disability Discrimination Act 1992 and such access must be maintained at all times the building is occupied or in use.
5. Any poles, service pits or other structures/features on the footpath required to be relocated to facilitate the development must be done so at the cost of the applicant and subject to the relevant authority's consent.
6. All utility services to the subject land and buildings approved as part of this permit must be provided underground to the satisfaction of the Responsible Authority by completion of the development.
7. All plant and equipment (including air-conditioning units) must be located or screened so as to minimise visibility from any of the surrounding footpaths and neighbouring properties and must be baffled so as to minimise the emission of unreasonable noise to the environment in accordance with Section 48A of the Environment Protection Act 1970 to the satisfaction of the Responsible Authority.

1. Before a sensitive use (residential use, child care centre, pre-school centre or primary school) commences or before the construction or carrying out of buildings and works (except for remediation) in association with a sensitive use commences, either:
   • (a) A certificate of environmental audit must be issued for the land in accordance with Part IXD of the Environment Protection Act 1970, or
   • (b) An environmental auditor appointed under the Environment Protection Act 1970 must make a statement in accordance with Part IXD of that Act that the environmental conditions of the land are suitable for the sensitive use.

Before the occupation of the building, all the conditions of the Statement of Environmental Audit must be complied with to the satisfaction of the Responsible Authority.

1. The use and development allowed by this permit must comply with the directions and conditions of any statement of environmental audit issued for the land.
2. All the conditions of the Statement of Environmental Audit must be complied with to the satisfaction of the Responsible Authority, prior to commencement of use of the site. Written confirmation of compliance must be provided by a suitably qualified environmental professional or other suitable person acceptable to the responsible authority. In addition, sign off must be in accordance with any requirements in the Statement conditions regarding verification of works.

1. Prior to commencement of use, the owner of the land must enter into an agreement with the Responsible Authority under section 173 of the Planning and Environment Act 1987 to covenant that it will:
   • (a) allow free and unimpeded public access over the private footpath along River Street, and the private land abutting the southern laneway (excluding private land affected by the drainage easement) (the "public access land") at all times;
   • (b) indemnify the Council for any damage to the development by reason of, or in connection with, the use of the "public access land" by the public;
   • (c) not make any claim for damages or loss of any kind against the Council for any damage or injury caused to the "public access land" or to any person using the "public access land";
   • (d) maintain public liability insurance for the use of the "public access land";
   • (e) provide adequate lighting to the "public access land" at the owner's cost; and
   • (f) maintain the "public access land" in accordance with the endorsed plans and to a standard that is safe and fit for public access to the satisfaction of the Responsible Authority.

The agreement must be registered with the Registrar of Titles in accordance with section 181 of the Planning and Environment Act 1987 and will run with the land, including any common property that may be created as part of the subdivision of the land. All costs (including legal costs) associated with the preparation and review of the agreement and the registration of the agreement on the Certificate of Title for the land must be paid by the owner.

1. Prior to the commencement of the development, an amended constructability report, to the satisfaction of Melbourne Water, must be submitted to and approved by Melbourne Water. When Melbourne Water has approved the constructability report, it will be endorsed by the Responsible Authority and will form part of this permit. The amended constructability report must be generally in accordance with the report titled "2-10 River Street South Yarra - Melbourne Water Drain Replacement Construction Methodology & Maintenance" prepared by Spiire dated August 2019, but modified to include the following:
   • (a) a detailed breakdown, including supporting information, of the construction cost and timeframe comparisons between replacing the Prahran Main Drain under the pre-development and post-development scenarios. The breakdown should identify whether, and by how much, the post-development scenario/conditions will result in an additional cost imposition to Melbourne Water (if any);
   • (b) a description of the potential impacts and risks to the Prahran Main Drain associated with construction of the development, including the use of heavy machinery in proximity to the Prahran Main Drain. The amended constructability report must specify control measures to manage the identified potential impacts and risks;
   • (c) a description of potential impacts and risks to the development (once constructed) as a result of maintenance and repair works to, or the reconstruction of, the Prahran Main Drain;
   • (d) a description of the potential impact and risks associated with dewatering of excavations if required (including the impact on settlement) and specified control measures to manage the identified potential impacts and risks;
   • (e) the extension of the bored piles on the eastern side of the Prahran Main Drain to accommodate excavation works to a level of 1 metre below the Prahran Main Drain or to a depth at which drain replacement works will not impact on the proposed building, whichever is greater; and
   • (f) confirmation of the accessibility of the fire booster and fire control points during maintenance, repair or replacement of the Prahran Main Drain.
2. Prior to the commencement of the development, the author of the constructability report must hold a 'risk & opportunity' workshop with Melbourne Water to discuss potential risks and opportunities associated with the proposed drain replacement works.
3. Prior to the commencement of the development, detailed engineering drawings, calculations and specifications for the design of basements including temporary and permanent ground support systems prepared by a suitably qualified engineer must be submitted to the satisfaction of Melbourne Water. The detailed engineering drawings must be accompanied by a peer review prepared by an independent, suitably qualified engineer to Melbourne Water's satisfaction and at the owner's cost. This assessment must also include consideration of:
   • (a) dewatering and the settlement prediction;
   • (b) the construction methodology for the excavations and basement works; and
   • (c) the location of any existing retaining wall or protective structures abutting the Prahran Main Drain reliever in River Street and the associated design implications for the permanent ground support systems.
4. A CCTV inspection in accordance with WSA 05-2013 Conduit Inspection Reporting Code of Australia of the portion of the Prahran Main Drain and the Prahran Main Drain reliever that runs through or adjacent to the Land, and 20 metres upstream and downstream of the Land must be provided to Melbourne Water as follows:
   • (a) 1 month prior to the commencement of the development, and
   • (b) prior to the issue of a Certificate of Occupancy for the development.
5. Prior to the commencement of the development, an inspection and condition assessment of the Prahran Main Drain (both branches) must be completed by an appropriately qualified expert, to the satisfaction of Melbourne Water. The condition assessment must determine the remaining asset life of the Prahran Main Drain within and adjacent to the Land.
6. If the Prahran Main Drain (or any part of it) is damaged either directly or indirectly as a result of the development of the Land, then the owner of the Land must restore the drain to at least the condition of the drain prior to the development of the Land, to the satisfaction of Melbourne Water.
7. Prior to the commencement of the development, the owner of the Land must enter into an agreement pursuant to Section 173 of the Planning and Environment Act 1987 with the Responsible Authority and Melbourne Water Corporation. All costs associated with the creation, review, execution and registration of the agreement by Melbourne Water and the Responsible Authority, including legal fees, must be borne by the owner of the Land. The agreement must be registered on title and run with the land, and must provide, to the satisfaction of the Responsible Authority and Melbourne Water, for the following:
   • (a) No modifications may be made to the building envelope of the development unless with the written consent of Melbourne Water which shall be obtained before any modification is made;
   • (b) No reduction in the vertical and horizontal clearances around the Prahran Main Drain and the drain that runs along the perimeter of the Land, including through the addition of services, decorations or awnings, unless with the written consent of Melbourne Water which shall be obtained before any reduction in the specified clearances may occur;
   • (c) The owner of the Land will consent to the provision of access to the Land to Melbourne Water at any time for the purpose of conducting investigations and works to maintain, repair or replace the Prahran Main Drain;
   • (d) Where, under condition 53(a), the constructability report shows that the cost to replace the Prahran Main Drain in the post-development scenario is more than the pre-development scenario, then the owner of the Land will be liable to pay any additional cost to Melbourne Water.
   • (e) Before entering into any lease relating to the Land, the owner of the Land agrees that it will provide written notice to any potential lessee of the owner's obligations pursuant to conditions 59(a) to 59(c) above; and
   • (f) The owner of the Land will provide suitable indemnities and releases in favour of Melbourne Water regarding:
     1. any claim for loss suffered by the owner or any occupier of the Land as a result of future works relating to the maintenance, repair or renewal of the Prahran Main Drain; and
     2. any claim at common law or applicable legislation arising from disturbance associated with the conduct of future works relating to the maintenance, repair or renewal of the Prahran Main Drain;
     3. any claim if the approved development is damaged during works relating to the maintenance, repair or renewal of the Prahran Main Drain; and
     4. the costs of any repairs deemed necessary by Melbourne Water should the basement and excavation works for the development have a detrimental impact on Melbourne Water's assets.
8. Prior to the commencement of works, the owner must obtain all necessary approvals under the Water Act 1989 for any proposed works over or near Melbourne Water's drain.

1. Any new or modified stormwater connection to Melbourne Water's drainage system must obtain separate approval from Melbourne Water.

1. Prior to the issue of an Occupancy Permit, a certified survey plan, showing finished floor levels (as constructed) reduced to the Australian Height Datum, must be submitted to Melbourne Water to demonstrate that the floor levels have been constructed in accordance with Melbourne Water's requirements.

1. Prior to the commencement of the use, the owner must obtain permission from Melbourne Water for the installation of a flood gauge for the Land at a location on the Yarra River to be approved by Melbourne Water and install the approved flood gauge to Melbourne Water's satisfaction.

1. The implementation of the FRMP must be audited on the anniversary of its approval, or such other times as agreed in writing by Melbourne Water, by a suitably experienced and qualified professional with expertise in emergency and flood risk management. The FRMP audit report must be provided to Melbourne Water and the Responsible Authority. The auditor's report must:
   • (a) Confirm that the requirements of the FRMP have been implemented over the audit period.
   • (b) Provide any recommendations for improvements to the FRMP.
   • (c) If it is recommended to change any requirement in the FRMP a risk assessment that addresses the consequences of that change in requirement must be undertaken and provided to Melbourne Water.
2. Any recommendations made by the auditor of the FRMP must be the subject of a revised FRMP to be provided to the Responsible Authority and Melbourne Water, and approved by Melbourne Water before any amendment may take effect.

Flood Risk Management Plan Implementation Agreement

1. Within six months of commencing the development, the owner of the Land must enter into an agreement pursuant to Section 173 of the Planning and Environment Act 1987 with the Responsible Authority and Melbourne Water Corporation. All costs associated with the creation, review, execution and registration of the agreement by Melbourne Water and the Responsible Authority, including legal fees, must be borne by the owner of the Land. The agreement must be registered on title and run with the land, and must provide, to the satisfaction of the Responsible Authority and Melbourne Water, for the following:
   • (a) That the owner of the Land acknowledges that the Land is subject to the Land Subject to Inundation Overlay under the Stonnington Planning Scheme and that the Land and access and egress to the Land is subject to flooding from the Prahran Main Drain and Yarra River;
   • (b) That the owner of the Land acknowledges the high flood depths predicted on-site and on surrounding land (including River Street and the adjacent laneway) will result in high levels of risk to human safety and property from floodwaters from the Prahran Main Drain and the Yarra River;
   • (c) That the use of the hotel and associated restaurant, bar areas and function room must at all times be operated in accordance with endorsed Flood Risk Management Plan.

1. This permit will expire if one of the following circumstances applies:
   • (a) The development is not started within four years of the date of this permit.
   • (b) The development is not completed within six years of the date of this permit.
   • (c) The use is not commenced within six years of the date of this permit.
2. In accordance with Section 69 of the Planning and Environment Act 1987, a request may be submitted to the Responsible Authority within the prescribed timeframes for an extension of the periods referred to in this condition.

[1] The submissions and evidence of the parties, any supporting exhibits given at the hearing and the statements of grounds filed have all been considered in the determination of the proceeding. In accordance with the practice of the Tribunal, not all of this material will be cited or referred to in these reasons.

[2] Under Section 55 of the Planning and Environment Act 1987 and Clause 66.03 of the Stonnington Planning Scheme.

[4] At clauses 13, 13.01-1S and 13.03-1S.

[6] Planning Practice Note 11, August 2015.

[7] Pioneer Concrete (Qld Pty Ltd v Brisbane City Council (1980) 145 CLR 485.

[8] 145 CLR 485 at 505.

[10] What was challenged was his assessment or lack of assessment of vehicle movements associated with the use of the function area. We have dealt with that matters earlier in our reasons.