WILL THERE BE ANY UNREASONABLE OFF-SITE AMENITY IMPACTS?

1. This being a development that is assessed under Clause 58 of the Yarra Planning Scheme, in accordance with Clause 58.04 the relevant potential off-site amenity impacts are overlooking (Standard D14), noise impacts (D16) and wind impacts (D17).
2. An assessment of these impacts on the surrounding residents needs to be conducted on the understanding that the review site is in a Commercial 1 Zone within an activity centre, as are many of the surrounding properties to the north and south of the review site. Further, those properties that are within a residential zone, exist at the interface to land in a Commercial 1 Zone and a Major activity centre. As such, normal expectations of residential amenity that may prevail in a purely residential context, need to be tempered with the understanding that land within and adjacent to a higher order activity centre will be subject to amenity impacts not experienced in other contexts. It is therefore a reasonable expectation that the use and development of the review site will have a level of amenity impact on the surrounding residents, and that the surrounding residents will experience a lower level of residential amenity, than would be the case if the surrounding context comprised solely of residentially zoned and developed land.

1. The review site is surrounded by public roads and as such there will be no unreasonable level of overlooking to any of the nearby surrounding properties. We form this view as it is a reasonable expectation, and indeed encouraged, in this activity centre context that buildings will be developed right to the street edge, and dwellings will have windows that overlook and provide surveillance to the public realm. Indeed, if it were proposed that, for example, the windows and balconies that look onto Hodgson Street be screened to prevent views to the south, there are many urban design policies in the Yarra Planning Scheme that would discourage that outcome. Surveillance of the public realm is an outcome that is strongly encouraged by the Yarra Planning Scheme, and the more surveillance that can be provided, the better.
2. We have not been persuaded by the submission of Ms Yin that this surveillance of the public realm should be reduced, in order to limit views into her and her neighbour's apartment balconies on the opposite side of Hodgson Street. Those balconies are already visible from the street, and so are quasi private spaces that also add to the activation and surveillance of the public realm.
3. We also note that the proposal has been designed in a manner that limits the number of new dwellings that face south, and which will have an opportunity to view the apartments at 250 Gore Street. Indeed at ground, first and second floor levels there is just the one dwelling that has its main orientation west towards Gore Street, but has one window at each level that faces south opposite 250 Gore Street. Further, the dwellings and the communal open space located above the third floor are separated by over 12 metres from the apartments at 250 Gore Street, and as such no unreasonable level of overlooking will occur.
4. Otherwise the lower levels of this part of the southern elevation of the proposed development on the review site is activated by office floor space, that is slightly setback from the alignment of Hodgson Street, and which will primarily be in use during office hours, when there will likely be a reduced usage of the apartments at 250 Gore Street. Having regard to the small setback provided within the boundaries of the review site to the office windows and the nature of this land use, we are persuaded that the proposal will not unreasonably overlook the apartments at 250 Gore Street.

1. The Council's grounds raise concerns with the potential for noise impacts from the communal open space, to the existing residential properties to the south of the review site. Some of the nearby respondents raise a concern with the potential noise impacts from the loading bay, and from trucks associated with the loading bay.
2. The Council has drafted a permit condition that requires the provision of an amended acoustic report, that will demonstrate how noise does not unreasonably affect surrounding residents, including from the loading dock. None of the parties made submissions to us that the Council's drafted permit condition was inadequate to achieve these objectives. Having regard to the existing acoustic report and the referral comments sought by Council, we are persuaded that the drafted permit condition will be sufficient to address potential noise impacts from the review site.
3. On top of these noise impacts, we acknowledge that there will be noise from trucks using St David Street and accessing the loading bay. That is the experience at present, and constitutes a reasonable expectation in this activity centre location. We are persuaded by the evidence of Mr Walsh (which we come to analyse in greater detail later in these reasons) that the truck noise in St David Street will reduce as a result of this proposed development of the review site. We make this finding for the following reasons:
   1. As part of the proposed development of the review site, trucks will be able to enter and exit the loading dock in a forward motion, and will not need to perform the current awkward turning manoeuvres in St David Street and Hargreaves Street;
   2. The proposed loading dock will be fitted with an acoustically treated roller door, that will close when the loading dock is in use, limiting noise impacts on the surrounding context;
   3. The permit conditions drafted by Council will require the loading dock to be managed in a way that better schedules the arrival of trucks than is presently the case, thus reducing the potential for trucks to arrive and park in St David Street, while the loading bay is in use.
4. For these reasons we find that the grant of a planning permit will reduce truck noise in St David Street over the existing conditions. We form this view despite the likelihood that an additional volume of small trucks will use the proposed loading dock and St David Street, as compared to the existing arrangement, as we explore later in these reasons.
5. Further, the applicant has agreed to limit the opening hours of the communal open space so that it is not open during the night period, unless they can demonstrate as part of an acoustic report to Council that there will be no sleep disturbance caused to the nearby residents. We support such an approach.
6. Finally, some residents who have filed Statements of grounds have raised concerns with regard to the potential for noise and disruption during the construction of the proposed development. We acknowledge that major construction works of the type that will occur on the review site will cause noise and disruption to the surrounding community. That will be the case, regardless of whether it is this proposed development that is approved, or one that complies with the heights set out in DDO30. Traffic impacts can be regulated by Council, and noise impacts are regulated by the EPA. While this does not mean that there will be no impacts, we regard the impacts from construction activity to be a necessary element of the type of new housing development that is so desperately needed in Victoria at present. For these reasons we will not refuse to grant a permit, simply because allowing new development means some impact from construction activity.
7. For these reasons we find that the proposed development will not cause unreasonable noise impacts on the surrounding properties.

1. Some of the respondents raise a concern with the potential for the proposed development on the review site to result in unreasonable wind impacts at street level in the public realm that surrounds the review site. They submit that the appropriate level of testing has not occurred to understand the potential wind impacts.
2. The potential for the proposed building on the review site to cause unreasonable wind impacts on the surrounding streets has been considered extensively during the planning permit application, and this application for review. From the applicant's perspective, they sought early advice from MGS Architects, who made recommendations of changes to the built form to ensure appropriate wind amenity outcomes.
3. Since that time, there has been three separate wind assessments conducted by RWDI Australia, accompanying the original planning permit application (dated 2 July 2024), the original amended plans in the Tribunal proceeding (dated 28 February 2025) and the latest amended plans (dated 21 July 2025). While these assessments contain preliminary work and acknowledge that physical scale model tests would be required in the future, they lay the groundwork for an understanding of the potential wind impacts, and the establishment of a series of techniques that can be employed to address any adverse impacts found in the further testing.
4. The Council has drafted a permit condition to be included on any permit granted, that requires an updated wind assessment. In our discussion with the Council and the applicant, we asked them to redraft the condition, to require the additional physical scale model tests described in the earlier wind assessments. We are now satisfied that the amended wording in the drafted condition will ensure the appropriate reduction of wind impacts on the surrounding context.

1. In addition to the potential amenity impacts addressed by Clause 58, there was also some concern in Statements of grounds regarding the extent of overshadowing that will be caused to the north facing apartments at 250 Gore Street. The series of shadow diagrams provided as part of the amended plans demonstrate that at the equinox, there will be some shadowing of the north facing balconies on the lower levels of the neighbouring building at 10:00am, but that most of the shadowing will be gone by 11:00am. In an activity centre context like this, for land within the Commercial 1 Zone, some overshadowing for part of the morning at the equinox is consistent with a reasonable amenity expectation, particularly for apartments at the lower levels of a building.
2. The shadow diagrams also demonstrate that the shadowing from the proposed building on the review site will be far less than that which would be cast by a building that complies with the heights and setbacks as set out in DDO30. While the proposed building on the review site is taller than that the discretionary height limit under DDO30, it also has increased street setbacks above the streetwall, to this part of Hodgson Street. The building envelope permitted by DDO30 creates a reasonable expectation of the amenity impacts in this location, and so the casting of a reduced shadow compared to that which would be created by a building that complies with the discretionary heights and setbacks under DDO30, is an indication of an appropriate amenity outcome.
3. Ms Gardner in her Statement of grounds raises a concern with the potential overshadowing of her property on the western side of Gore Street, commencing at 6:45am. Firstly, we do not consider that overshadowing before 9:00am at the equinox is a relevant consideration in this activity centre location, as even in a purely residential environment, Clauses 54 and 55 of the Yarra Planning Scheme do not seek protection of solar access before 9:00am. The expectations in this activity centre context, with its encouragement for taller buildings, should be for less solar access, not more, when compared to a purely residential context of low scale buildings. We are not provided with shadow diagrams at 9:00am at the equinox. The 10:00am shadow diagram shows that the shadow will not extend beyond approximately half way across Gore Street, which indicates that at 9:00am, the shadow would not extend all the way across the street, and up to the first floor window that concerns Ms Gardner. For these reasons we find that an unreasonable shadowing impact will not be caused to the property in question.

1. Some people who filed Statements of grounds also raise concern with the potential for visual bulk to the surrounding residential properties. The review site is entirely surrounded by streets, with mid levels that either comply with or exceed the street setbacks that are sought under DDO30. The mid levels which exceed the required street setbacks under DDO30 will therefore have a reduced visual bulk impact, as compared to the built form that could be reasonably expected under DDO30. While the building is proposed to be higher than the discretionary building heights under DDO30, the upper floors are provided with even greater setbacks, such that they will not be visible from the abutting streetscapes. The upper levels with their greater setbacks will have either no or limited visibility from the residential properties located directly opposite the review site, and therefore could not be said to contribute in an unreasonable way to visual bulk. On this basis, we find that the proposal will not result in unreasonable visual bulk to the nearby residential properties, having regard to the reasonable expectations of a development on this large site in a higher order activity centre.
2. For these reasons we find that the proposal will not cause any unreasonable off-site amenity impacts.

IS AN APPROPRIATE LEVEL OF INTERNAL AMENITY ACHIEVED?

1. The Council submits that the future occupants of the proposed apartments on the review site may experience acoustic impacts from various elements of the proposed development, including the loading functions and the supermarket. In short, the Council submits that insufficient information has been provided by the applicant to determine whether the noise impacts will be acceptable.
2. In relation to the concern identified by Council regarding noise attenuation within the building to protect the future residents of the review site, we agree with the applicant that this can be addressed through an appropriately worded permit condition, that requires further assessment and appropriate noise attention techniques to be employed. The Council has drafted an appropriate permit condition, that we will adopt.

1. The Council submits that the proposed communal open space on level 3 will not receive sufficient solar access to comply with Standard D8, and therefore will not provide an appropriate level of amenity for future residents on the review site.
2. We would agree with the Council's position, if the area of communal open space on level 3 was the only area of communal open space to be provided on the review site. Instead, we note that an additional area of communal open space of 185 square metres in size is provided at level 9. That area has excellent solar access, and at the winter solstice will receive at least 90 square metres of solar access between midday and 3:00pm.
3. We acknowledge that this level of solar access does not comply with Standard D8 with respect to the area on level 3, as the area on level 9 is not the primary area of communal outdoor open space. However, we are persuaded by the evidence of Ms Ring that the area on level 9 will provide residents with a very good level of year round solar access. As such, we are satisfied that the relevant objective is achieved.

1. Ms Trecenti raises a concern with the level of internal amenity provided as a result of the failure to provide any private open space for three of the proposed 124 dwellings. The written submission includes the following.

[87] The applicant is also relying on the communal open space for use by future occupiers of those dwellings that do not have any private open space. Relying on communal open space for private open space is obviously, not appropriate, as it is not private.

2. We are not persuaded by what this submission says is obvious, that communal open space cannot be relied upon in the absence of private open space. There have now been a number of recent decisions that have considered this issue.
3. In the decision of Cysur Developments Pty Ltd v Merri-bek CC [2023] VCAT 1104 the Tribunal allowed a development, after the following analysis.

[51] The second concern raised by Council is the complete absence of private open space to any of the proposed apartments. Usually in a design such as this, areas of private open space are provided by way of balconies. Instead, this design adopts a different approach, which is described in the following manner in the expert evidence of Ms Milner.

I understand the proposal is advanced as an alternative co-housing option, and as an integrated series of compact secure and affordable residential spaces, clustered around a range of on-site shared spaces and facilities including two gardens, a terrace, and communal laundry and kitchen.[6]

[52] I acknowledge that a more detailed description of the co-housing model that is proposed for the review site is found in a Planning Report[7] that was included at page 288 of the Tribunal Book.

[53] The expert evidence of Ms Milner also goes on to describe more fully the communal areas that are proposed to be provided on the review site.

The proposal provides for 138.5 sqm of communal open spaces (exceeding the minimum requirement for a 24-dwelling development, by 40.5 square metres).

The communal open space would be provided by 5 different indoor and outdoor spaces, meeting the expectation that at least 30 sqm should be provided outdoors.

The spaces would comprise:

• a garden area at ground floor (39 sqm);
• a laundry area at first floor (20.5 sqm);
• a kitchen at the third level (11.5 sqm);
• a wintergarden at the third level (25.5 sqm); and
• a pergola / terrace at the third floor (42.0 sqm).[8]

[54] Usually I would be concerned as to whether this approach would achieve an outcome consistent with Clause 58 of the Merri-bek Planning Scheme. Clause 58 includes the following guidance.

• Must meet all of the objectives of this clause.
• Should meet all of the standards of this clause.

[55] The relevant objective relating to the provision of private open space is found at Clause 58.05-3, and sets out the following.

To provide adequate private open space for the reasonable recreation and service needs of residents.

[56] It is an interesting conundrum as to whether the provision of no private open space can be said to meet the objective of providing adequate private open space. In responding to that conundrum, it might be interesting to compare this part of the Victorian Planning Provisions with Clause 52.06, and the scenario where zero car parking is at times provided in response to a purpose that seeks, "To ensure the provision of an appropriate number of car parking spaces..." Another interesting conundrum is whether the failure to meet an objective at Clause 58, means that I must refuse to grant a permit for the proposed development. To this end I note that while Clause 58 says that a development must meet all of the objectives, there is no words to the effect of, 'A permit cannot be granted if the objectives are not met.' I might observe that on one view, words to this effect are likely to be needed in order to make the objectives a mandatory requirement.

[57] These conundrums are muddied in this proceeding as it involves an application to amend an existing permit, where the existing planning permit allows the construction of 16 apartments, all without any private open space. As such, the proposal that is before me is to extend the existing approved 'style' of residential development to a further 8 apartments on an adjoining property. In making a decision on the original planning permit application, the Council's delegate wrote the following in their assessment as justification for the non-provision of private open space.

Communal open space is the sole open space for residents with no private balconies provided for any dwelling. A total common area of 85sqm is provided for residents in the form of 25.5sqm wintergarden, 14.5sqm communal kitchen, 31.5 sqm pergola area and 13.5sqm community laundry. The common areas cater for a variety of residents needs which in a sense is private given that only residents can access this space. Arguably these larger spaces are more useable than an 8sqm balcony would be to residents and provide a better amenity having integrated landscaping and furniture. The shared facilities encourage interaction between residents which is a key initiative of the development that adopts a new type of housing model aimed at a particular demographic. It is considered that the provision of open space would satisfy the objectives of Clause 58.[9]

[58] I have not been informed why this analysis would not also be relevant and applicable to the 8 additional apartments that comprise the proposed amendment to the existing permit. Ms Lunn sought to advance an argument that this proposed amendment comprises more larger apartments, which would have a greater number of occupants, and would therefore create a greater demand for private open space. However, the fact is that this amendment will comprise 4 additional studio apartments, 3 additional one bedroom apartments, and one additional two bedroom apartment. This generally continues the ratio of these apartment types allowed under the existing approval. Therefore, I am not persuaded that this could be a reason to now require private open space.

[59] Ms Lunn also sought to argue that the proposal adds apartments, without substantially adding to the amount of communal open space. However, the amended proposal that is before me does propose to enlarge the usable area of outdoor communal space at the third floor, provides a new large communal area on the first floor, and also provides additional communal areas on the ground level. The result of these changes is a substantial increase in communal open space, for the addition of only 8 dwellings.

[60] I am persuaded by the evidence of Ms Milner that given the style of housing proposed for the review site, the circumstances surrounding the original approval, and that what is before me is an amendment to an existing permit, I find that an appropriate open space outcome can continue to be achieved in this unique housing form, through the reliance on communal open space only. For these reasons I find that no private open space is required in response to the objectives at Clause 58 of the Merri-bek Planning Scheme.

1. The next decision we refer to is the decision of Brougham Street Cohousing Pty Ltd v Nillumbik SC [2024] VCAT 360, where the Tribunal set out the following analysis.

[90] In relation to the provision of open space, while some of the proposed dwellings have a limited area of private open space, all residents will have access to very generous areas of communal open space, which is described in the following manner in the evidence of Mr Iles.

• A large (791m2) communal open space area.
• A communal recreation building.
• Communal storage areas/buildings.
• Communal productive gardens.
• Communal outdoor dining facilities.

[91] In addition, the future residents on the review site will also have access to the 1923 square metres of open space that exists on the part of the broader site that is covered by the Urban Floodway Zone. > > [92] We find that the provision of private open space on the review site is appropriate. We make this finding for the following reasons. While six of the proposed 21 dwellings will have less than 40 square metres of private open space, we consider that the areas that are provided for these six dwellings are functional, appropriately dimensioned, and importantly will enjoy high levels of solar access. To the extent that these areas fail to meet Standard B28, we consider that this is more than addressed by the substantial provision of communal open space on the review site. Indeed, we consider that the standard and variety of communal facilities to be provided on the review site, will provide a higher standard of internal amenity for future residents, than if each dwelling were provided with the area required under Standard B28. > > [93] We note that many of the areas of secluded private open space are provided at ground level surrounded by low open style fencing. As a result, views can easily be gained into these areas of private open space. While that reduces the available privacy, it also enhances the sense of community and the interactions that can occur between neighbours. We observe that the positive aspect related to the enhanced interactions, might balance the negative associated with reduced privacy. Others might feel that the positive outweighs the negative. Given the impact on privacy exists as a result of viewing between areas of communal open space and private open space, as opposed to direct views from the public realm, we consider that the lack of privacy to the areas of private open space does not 'tip the scales' and make the areas of private open space unacceptable. We form this view having regard to the wide range of communal open space options available on the review site, and the fact that many of the proposed dwellings are provided with a secondary area of private open space in the form of a first floor balcony.

1. In the decision of GFM Investment Management Limited ATF GFM Home Trust II Subtrust No 9 v Port Phillip CC [2024] VCAT 458 the Tribunal considered a proposed apartment building that would rely on communal open space for some apartments. The reasons for that decision include the following.

[62] According to the evidence of Mr Pagliaro, 17 of the proposed 571 dwellings are provided with no private open space, and 'a number' of other apartments are provided with areas of private open space that is less than that required under Standard D20.[10] While nine of the apartments with no area of secluded private open space are studio apartments, eight of the apartments are two bedroom apartments with a floor area of 83 square metres. > > ... > > [64] Mr Pagliaro opines that despite this non-compliance with Standard D20, an acceptable level of internal amenity will be provided to all future occupants, due to the extent of communal open space proposed on the review site. These areas are detailed in the following manner at page 4 of Mr Pagliaro's evidence.

Total communal areas comprising 2,585sqm indoor space and 3,350sqm outdoor space.

Ground level (total of 1,463sqm indoor, 2,870sqm outdoor):

• Swimming pool, gym and yoga studio
• Concierge lobby and lounge space
• Work lounge
• Dining room, gallery / library and billiard room (within Netherby House)
• Outdoor spaces including an outdoor gym, terrace, and sun deck

• Laundry and pet grooming facilities
• Dining rooms (within Netherby House)

• Residents lounge
• Work hub
• Lounge terrace

[65] This provision of 5935 square metres of communal facilities within the proposed development compares well with the required provision of 250 square metres of communal open space that is required under Standard D7. The extent of provision of communal open space is one factor to consider, when deciding whether to allow a development that does not comply with Standard D20. Another consideration is the extent of public open space available within a short walking distance of the review site, at Albert Park Lake, the Royal Botanic Gardens and Fawkner Park. These are relevant considerations as both public and communal open space are referenced in the decision guidelines at Clause 58.05-3 of the Port Phillip Planning Scheme. > > ... > > [68] In this proceeding, we are persuaded by the evidence of Mr Pagliaro that the private open space objective is met, and an acceptable level of internal amenity provided, by the proposal that is before us. While this means that some apartments are provided with no private open space, and others are provided with areas less than that required under Standard D20, we consider that is more than compensated by the accessibility to both communal and private open space. > > [69] In regards to the proposed communal open space, we consider that the overall extent provided at 5935 square metres, and the diversity of the spaces provided, provide a very significant and weighty benefit to the future residents of the review site. We note that future residents will have access to communal open space which can provide a variety of recreational needs, including a swim, a gym workout and a yoga class. In addition, other components of the communal open space provides working from 'home' spaces, residents lounges, dining rooms, meeting rooms, a covered outdoor BBQ area and an adjacent open deck. We are impressed that the range and quality of the communal facilities proposed on the review site, can substitute for the type of activities one could reasonably expect to undertake on a private balcony. > > [70] In addition, the review site is in a location which experiences an exceptional level of access to high quality public open space. Albert Park Lake is directly across the road from the review site, while Fawkner Park and the Royal Botanic Gardens are both within a walking distance. Together, these three areas of public open space provide a high quality resource for future residents of the review site. > > [71] For these reasons we find that the extent of private open space proposed to be provided on the review site is acceptable, and will contribute to an appropriate level of internal amenity.

1. Returning to this current proceeding, of the proposed 124 dwellings, three dwellings are proposed to have no private open space. We have already described above the two large areas of communal open space to be provided on the review site. In addition, the review site is within 800 metres walking distance of Carlton Gardens, and within one kilometre walking distance from the Fitzroy Gardens. Given the scale of these areas of public open space, and the various passive and active recreation opportunities available, we consider that they are sufficient to assist to balance the non-provision of private open space to just three dwellings on the review site.
2. While the reason given by the applicant for the non-provision of private open space to three dwellings is because these dwellings are located behind the retained heritage façade, in fact that is true for only two of the affected dwellings. Two of the affected dwellings are very generously proportioned internally, with floor areas of over 200 square metres each. We consider that these generous floor areas, combined with the access to communal and public open space, is an appropriate basis on which to allow these two dwellings to have no private open space. The third dwelling is a one bedroom dwelling albeit with a generously proportioned living area for a one bedroom dwelling. As it is likely to have a low number of occupants in that dwelling, the level of access to both communal and public open space also provides a basis for the non-provision of private open space for this dwelling.

1. Mr Lionakis submits that some of the proposed apartments will not receive an appropriate level of internal amenity. He submits that three of the proposed dwellings will not receive appropriate levels of daylight. During the course of the hearing we explored with Ms Ring the presence of three rooms, one per townhouse that fronts Gore Street, that do not have direct access to daylight. According to the evidence of Ms Ring, these rooms could provide a variety of uses despite having no direct access to daylight, and will add to the amenity of the three townhouses. We are persuaded by the evidence of Ms Ring to allow the existing layout to prevail, and are satisfied that on the whole, the affected townhouses have a very good level of access to daylight.
2. Mr Lionakis also submits that some of the corridors that provide access to the apartments are lacking in access to daylight. This is primarily caused by the design seeking to maximise active frontages at the podium levels and internalising residential car parking.
3. We agree that some of the corridors do not have access to daylight, but find that on the whole, the proposed apartments will experience a more than appropriate level of internal amenity. We make his finding having regard to the size of the apartments and the individual rooms, the access to daylight and solar access, the orientation and size of areas of private open space, the two large areas of communal open space to be provided on site, and the extent of services and facilities that are easily accessible in this higher order activity centre.

DOES THE PROPOSAL APPROPRIATELY PROVIDE FOR CAR PARKING AND TRAFFIC MOVEMENTS?

1. The amended plans comprise a total of 88 one and two bedroom apartments, 38 three bedroom apartments, 3331 square metres of floorspace for the supermarket, and 206 square metres of office floorspace. The application proposes the provision of 230 car parking spaces on the review site, which:
   1. Meets the statutory requirements for car parking associated with the two and three bedroom dwellings (133 spaces are provided);
   2. Is a shortfall of 20 spaces, on the 29 spaces required for the 29 one-bedroom dwellings (9 spaces are provided);
   3. Is a shortfall of 78 spaces, on the 166 spaces required for the supermarket (88 spaces are provided); and,
   4. Does not include any car parking for the office floorspace (6 spaces are required).
2. As such, a planning permit is required for the reduction of the standard car parking requirement set out at Clause 52.06 of the Yarra Planning Scheme.
3. A number of the residents oppose the proposed reduction of car parking. Ms Axton and the Fitzroy Residents Association Inc refer to the existing demand for on street car parking, including that created by past developments that allow a reduction of the standard car parking requirement. They submit that the continued development of buildings with less than the required number of car parking spaces is not achieving an appropriate outcome.
4. We are persuaded by the evidence of Mr Walsh that it is appropriate to allow the requested reduction of car parking, for the following reasons.
5. Firstly, we need to acknowledge that the review site has excellent access to public transport, with a tram stop right in front of the review site in Smith Street, and the trams in Brunswick Street just 400 metres to the west of the review site. Both of these tram routes then provide a very short and convenient ride to the Melbourne CBD, where every available train and tram route can be accessed.
6. In relation to the provision of car parking for the residents of the proposed dwellings, Mr Walsh provides evidence of the demand for car parking for one, two and three bedroom dwellings both in the Yarra municipality, and in the suburb of Fitzroy. The data for both of these locations demonstrate that there is both a demand for one bedroom dwellings with no car parking, and for three bedroom dwellings with one car park. Indeed, the data for Fitzroy shows that nearly half (48%) of all one bedroom dwellings are occupied by people who do not own a car, and over three-quarters (77%) of all three bedroom dwellings are occupied by a household which has either no car, or one vehicle. As the proposal provides two car parking spaces for each of the 38 three bedroom dwellings on the review site, some of these spaces will inevitably be available for the one bedroom dwellings, if their occupants require a car space. As a result, the provision of car parking for one bedroom dwellings can also exceed the existing demand by the current population in the suburb of Fitzroy.
7. In relation to the provision of car parking for the small office, we support the non-provision of car parking for office workers, on the basis of the very convenient public transport that is available to the review site.
8. In relation to the supermarket, Mr Walsh has provided empirical data as to the demand for car parking surveyed at existing supermarkets in inner city locations. This data reveals an average demand for car parking of 2.59 spaces per 100 square metres of floorspace. The application proposes the provision of car parking for the supermarket at a rate of 2.64 spaces per 100 square metres of floorspace, just over the average demand surveyed for similar supermarkets.
9. The standard car parking rate for supermarkets of 5 spaces per 100 square metres of floorspace applies in all contexts throughout Victoria, including those that are heavily car dependent, with no access to alternative forms of transport. It therefore makes sense to us that on this site, with its convenient tram access, and with a high number of people within walking distance of the review site (including the future occupants of the proposed apartments on the review site), that a reduction of the standard car parking rate be provided. Mr Walsh's evidence provides a basis for what the reduced car parking rate should be, having regard to the existing demand for car parking at other inner city suburban supermarkets. As a result of that analysis, we are persuaded by the evidence of Mr Walsh that the proposal provides an appropriate amount of car parking for the supermarket on the review site.
10. In response to the submissions made by Ms Axton and the Fitzroy Residents Association Inc, we are persuaded by the evidence of Mr Walsh that the reduced rates of car parking to be applied to the review site for the proposed apartments and the supermarket, will meet the likely demand for car parking for these two land uses. That is, we do not anticipate this development, once complete, to create a demand for on-street car parking for residents of the apartments, and customers of the supermarket. While there may be an off-site demand for car parking for visitors to the proposed apartments, the Yarra Planning Scheme does not require the provision of on site car parking for such visitors, and so we cannot create such a requirement.
11. Some people in their Statements of grounds have raised a concern with the current provision of 147 spaces on the review site, in a manner where they can be accessed by the public on a 24 hour a day basis, and the impact of the loss of this car parking resource to the surrounding community. We have not been persuaded that the review site has a burden to provide free car parking for the surrounding community. Rather, the applicant is required by the Yarra Planning Scheme to provide sufficient car parking for the uses and development that are proposed on the review site. For the reasons set out above, we find that such an outcome is achieved by the proposed development that is before us.
12. For these reasons we find it appropriate to allow the grant of a planning permit for a reduction in car parking supply.

1. A number of respondents, in particular the group lead by Ms Coull, Mr Banks & Ms Harris, and Mr Potter, all oppose the proposal to use St David Street as access to the loading bay for the supermarket, and the conflicts this will have with other vehicles, pedestrians and cyclists in St David Street.
2. Mr Banks and Ms Harris filed submissions that detail the history of the Woolworths loading bay, and their experiences of damage to vehicles and other assets from trucks manoeuvring in the surrounding road network. They submit that the proposed truck movements will cause noise impacts to nearby residents. They also raise a concern with the proposed increase in operating hours of the loading bay, from the existing 7:00am to 6:00pm Monday to Friday and 10:00am to 4:00pm Saturday and Sunday, to 7:00am to 10:00pm Monday to Saturday and 9:00am to 10:00pm Sunday. Mr Banks and Ms Harris submits that the loading bay should be accessed via Hodgson Street, noting that all land that abuts this street is in the Commercial 1 Zone, whereas there are some residentially zoned properties in St David Street. They also express a concern as to whether the applicant will abide by permit conditions, given past experiences.
3. Ms Coull and her group of joint respondents made a thorough submission that addressed why they consider the loading bay should be moved to Hodgson Street. They submit that a loading bay in St David Street would not represent either a best practice outcome, or the most optimal planning outcome. In terms of the proposed loading bay in St David Street, they submit that the existing loading bay times should remain, and that no trucks should traverse Hargreaves Street.
4. Mr Potter made a submission following his recording by video of all deliveries to the existing supermarket over a 10 day period. He submits that he observed many trucks arriving at the site when the loading bay was full, some dangerous truck manoeuvres, and illegal parking by trucks in St David Street. Based on his observations of trucks waiting in St David Street for the loading bay to become available, Mr Potter submits that the suggested new loading zone at the western end of this section of St David Street is inappropriate as it will be positioned outside of the residential lobby entrance to the review site, and opposite residential properties in a residential zone. Mr Potter also raises a safety concern regarding the reversing manoeuvre that trucks will need to perform in St David Street to access the loading bay, in the event that they first have to wait in the new loading zone at the western end of this section of St David Street. Mr Potter supports relocating the loading bay to Hodgson Street, for a variety of reasons.
5. These submissions need to be understood in the following context:

1. The review site currently contains a supermarket, which currently has a loading bay accessed off St David Street. The existing loading bay is a poor design, which requires trucks to turn around somewhere in the existing road network (usually at the intersection of St David Street and Hargreaves Street), and then also reverse onto the loading bay on the review site. Trucks waiting to use the existing loading bay wait in St David Street. 2. The plans that are before us propose to improve the existing arrangement, albeit with the retention of a loading bay accessed off St David Street. The improvements comprise: 1. A turntable within the review site, so that vehicles can turn around on site, and perform more simple forward manoeuvres on the surrounding road network when entering and exiting the loading bay; 2. An acoustic roller door to fully enclose the loading bay and turntable, which will reduce noise impacts on the nearby properties; 3. A more compact loading bay design, which reduces the streetscape impact of this 'back of house' function; 4. The redesigned loading bay can accommodate a larger truck (at 12.5 metres in length), than can access the existing loading bay (11 metre length trucks), potentially reducing the number of truck movements to and from the review site; 5. The grant of a permit for a new loading bay allows for greater restrictions to be placed on truck movements to and from the review site, including an improved scheduling of trucks to avoid duplication of arrivals, to reduce the impact on residential amenity in St David Street.

1. An earlier set of plans proposed to relocate the loading bay to Hodgson Street, which was opposed by Council and some residents, but supported by expert evidence as a more appropriate location for the loading bay. A number of respondents continue to press for Hodgson Street as the appropriate location for a loading bay for this supermarket.

1. The proposed new design for the loading bay in St David Street will still create some negative impacts associated with: 1. Noise from truck movements; 2. Conflict with pedestrians, noting that the main entry into the pedestrian lobby is proposed to be located to the west of the loading bay, and therefore pedestrians accessing this main entry and walking along the southern side of St David Street will need to walk past this loading bay to access Smith Street; 3. Conflict with cyclists, noting that St David Street is identified as part of the Neighbourhood Cycling Network in Yarra's Transport Strategy.
2. DDO30 addresses the location of loading facilities, by providing the following guidance.

Vehicle access should be achieved from laneways or side streets (in that order of preference).

Car parking should be located within a basement or concealed from the public realm.

Development should not provide additional vehicular access from Smith Street.

Vehicle ingress and egress into development, including loading facilities and building servicing, should be designed to ensure a high standard of pedestrian amenity and limit potential conflict between vehicle movements and pedestrian activity.

1. The proposal complies with this guidance from the Yarra Planning Scheme in the following manner:
   1. None of the proposed vehicle access points are from Smith Street.
   2. As the review site does not have vehicular access to a laneway, it is encouraged that all access is from a side street. This is achieved by having the loading bay and supermarket car park accessed off St David Street, and resident car parking accessed off Hodgson Street.
   3. Both car parking areas are concealed from the public realm, with the supermarket car parking located in the basement, and the resident car parking located in the building podium and sleeved behind active frontages.
   4. According to the evidence of Mr Walsh, all of the proposed vehicle access points provide for pedestrian safety. We explore in further detail in our reasons below why we are persuaded by this evidence, in relation to the contested access points in St David Street.
2. In relation to the submissions made that it is more appropriate for the loading bay to be accessed off Hodgson Street, it is not the Tribunal's role to decide which street is better for access to the loading bay. Further, we are not seeking to achieve an ideal outcome, which is rarely possible in planning disputes where each design decision comprises both benefits and disbenefits. In response to the submissions made by Ms Coull and her joint respondents, the Yarra Planning Scheme also does not require a proposal to achieve a best practice outcome, or the most optimal planning outcome, in order for a planning permit to be granted. Rather, the Tribunal's task is to decide whether the proposal that is before us, that includes a supermarket loading bay on St David Street, is an acceptable planning outcome. This is consistent with Clause 65 of the Yarra Planning Scheme, which sets out the following.

Because a permit can be granted does not imply that a permit should or will be granted. The responsible authority must decide whether the proposal will produce acceptable outcomes in terms of the decision guidelines of this clause.

1. Complicating that task slightly is the fact that we have an earlier set of plans that demonstrates how a loading bay can be designed with access off Hodgson Street, as well as expert evidence from two traffic engineers, two urban designers, and an experienced town planner, all supporting the loading bay off Hodgson Street.
2. In reaching this decision, it is also relevant to note that if we do decide to refuse to grant a planning permit, then the existing use of the land for a supermarket remains, along with the existing inferior loading bay design with its poor and potentially unsafe truck movements in the surrounding road network.
3. Having regard to all of these matters, we are persuaded by the evidence of Mr Walsh that the proposed traffic and access arrangements for the review site, including the siting of the loading bay off St David Street, will achieve an acceptable planning outcome. We make this finding for the following reasons:
   1. The proposed loading bay arrangements as part of the application that is before us, are a vast improvement over the loading bay design and access movements that currently occur in St David Street. We make this observation as the existing access movements that currently occur in St David Street, will continue to occur if we decide to refuse to grant a planning permit for the proposed development. That is, we are not starting with a base condition of no awkward truck movements in St David Street. The proposed loading bay arrangements as part of the application is an improvement on the existing arrangement, primarily as:
      1. All trucks will be able to enter and exit the loading bay in a forward direction, avoiding the existing need to reverse into Hargreaves Street to turn around in St David Street, before reversing again into the loading bay;
      2. The loading bay will have the capacity to service two smaller trucks at the same time, reducing the likelihood of trucks idling while waiting in St David Street;
      3. The loading bay will be fully enclosed by an acoustically treated roller door when in use, except of course when trucks are entering and exiting the loading bay. This will reduce the noise impact on the surrounding environment.
      4. The loading bay is a more compact design in its streetscape appearance, as compared to the existing layout.
   2. We are persuaded by the evidence of Mr Walsh that the proposed reduction in the size of the supermarket and the size of the supermarket car park, will result in a reduction of vehicle movements along St David Street. Further, as the access to the supermarket carpark is proposed to be located very close to the Smith Street entry to St David Street, as opposed to its present location at the western end of St David Street, the traffic volumes travelling past the loading bay and along the length of St David Street will reduce considerably as a result of the proposed development of the review site. This will have the added benefit of reducing the extent of conflict between truck movements and vehicle movements in St David Street.
   3. The grant of a new planning permit with new permit conditions applying to the supermarket, will provide an opportunity to enforce more stringent controls over the operation of the loading bay, to ensure that deliveries are managed in a way so as to reduce the likelihood of more than one large truck visiting the site at the one time. This will further reduce the extent of trucks waiting in St David Street as part of the use and development of the review site.
   4. We acknowledge that the main pedestrian entry point to the proposed apartments on the review site is located along St David Street, west of the loading bay. This means that pedestrians would need to walk past the loading bay and the supermarket basement car park entry, to access Smith Street. While this is less than ideal, we are persuaded by the evidence of Mr Walsh that this can occur in a safe manner, noting that all vehicle movements in and out of the review site are proposed to be in a forwards motion, and the power poles that presently sit in the southern footpath along St David Street will be removed as part of the proposed development of the review site. We also agree with Mr Walsh's oral evidence that any pedestrians who wish to avoid traversing these access points, can utilise the northern footpath on St David Street, by crossing St David Street at its western end adjacent to the pedestrian entry lobby, which is at the dead end of St David Street where there will be practically no vehicle movements.
   5. Finally, we are also persuaded that the safer truck movements proposed in St David Street, where all trucks enter and exit the loading bay in a forwards direction, and where the existing awkward reversing manoeuvre into Hargreaves Street is no longer required, will provide an appropriately safe road environment for cyclists using St David Street. It will certainly be an improvement over the existing conditions, which prevailed when St David Street was first identified as a preferred cycling route.
4. Some of the respondents note the intent of Mr Walsh to retain a truck waiting zone in St David Street, in the event that the loading bay is full. Those residents are critical of the position of this waiting zone opposite properties in a residential zone, and near the entry to the pedestrian lobby of the proposed development. We are persuaded by the evidence of Mr Walsh this this waiting zone is likely to be less regularly used than currently occurs, due to the factors we have set out above. We also note that it will be offset from the entry to the pedestrian lobby on the review site and located further to the east along St David Street. Having regard to the existing context and the mix of uses in this street, we consider that the retention of a truck waiting zone for occasional use is an acceptable outcome.
5. We are also persuaded by the evidence of Mr Walsh that trucks reversing out of this waiting zone to gain access to the loading bay, can perform that vehicle manoeuvre in St David Street in a safe and reasonable manner, without conflicting with traffic to the supermarket car park.
6. As summarised above, a number of the respondents are concerned regarding the proposed increase in hours of operation of the loading bay. We share those concerns, and consider that a loading bay operating in proximity to residential properties in a residential zone should not be permitted to operate until 10:00pm, seven days per week as is requested. In the Tribunal decision of Fabcot Pty Ltd v Glen Eira CC [2022] VCAT 1025 the Tribunal applied a closing time of 7:00pm Monday to Saturday and 5:00pm on Sunday where a supermarket loading bay was to be accessed by a street in a quiet and mostly residential environment. While a comparison of two suburban environments is always fraught, we consider St David Street to comprise a more robust urban environment, more impacted by noise from trams and traffic in Smith Street, as compared to Sinclair Street, Elsternwick. To that end, we find that an 8:00pm closing time for the loading bay from Monday to Saturday would represent an appropriate balance between residential amenity, and the operation of a commercial loading bay in the Commercial 1 Zone, in this context.
7. Mr Banks raises a concern that during the course of this proceeding, the amount of smaller trucks that are proposed to use the loading bay has increased from 15-20 deliveries each week by specialty suppliers, to 15-20 deliveries each day by specialty suppliers. It is the evidence of Mr Walsh that the inflated figure is based on two factors:
   1. Firstly, that some of the deliveries to the existing supermarket may occur to on street loading zones around the review site, and the provision of an improved loading bay provides an opportunity to consolidate those deliveries onto the review site; and,
   2. Secondly, the figure of 15-20 deliveries per day is provided as an upper limit for some Woolworths supermarkets that operate in markets where additional specialty goods are sought by the local community. The example given by Mr Walsh is a supermarket in an area frequented by the Jewish community, which would have more deliveries associated with Kosher food.
8. As a result, Mr Walsh estimated that the future supermarket on the review site would have around 10 specialty trucks per day. While we accept we do not have absolute clarity around these small truck numbers, we accept the evidence of Mr Walsh that they are likely to be around the same amount as occurs at present, and we agree with Mr Walsh that the consolidation of these truck deliveries off street and into the dedicated loading bay is a positive outcome. While that may result in an additional volume of small trucks using St David Street, we consider that to be an acceptable outcome during the day in this edge of activity centre location.
9. In relation to traffic movements more generally, Mr Walsh provides evidence that the intersection of Smith Street and St David Street will operate well below its capacity, even after the completion of the proposed development on the review site. As this part of Mr Walsh's evidence was not challenged by any party, we are persuaded by this evidence.
10. Finally, it is the evidence of Mr Walsh that the traffic levels generated by the review site in Hodgson Street will be reduced as a result of the proposed development, having regard to the removal of access to a supermarket car park from Hodson Street. It therefore follows that the proposed development of the review site could not have a detrimental traffic impact on Hodgson Street, or its intersection with Smith Street.
11. For these reasons we find that the proposal appropriately provides for truck access and traffic movements in the surrounding road network.

1. The Yarra City Council includes in its set of draft permit conditions circulated on a without prejudice basis, a condition that requires the provision of affordable housing within the proposed development on the review site. The contribution is to 10% of the total number of dwellings in the proposed development, or otherwise is to be provided as a cash contribution to a registered housing association.
2. In seeking the permit condition, the Council relies on its policy at Clause 16.01-2L of the Yarra Planning Scheme, which is set out below.

Housing affordability

Objective

To facilitate the provision of affordable housing and social housing (public and affordable community housing), including new social housing and upgrades to existing social housing.

Strategies

Support development that includes a provision of affordable housing within its mix of dwellings.

Provide well-designed affordable housing within new development that is integrated with the remainder of the development.

Support development that caters for key workers (employed in the provision of essential services such as in the police, health, emergency or education sectors) within or close to activity centres, health and education precincts.

Objective

Support the provision of new public housing and upgrades to existing social housing (including public housing).

Strategy

Support the development of new and additional social housing, in line with identified needs.

Policy guidelines

Consider as relevant:

• Provision of a minimum of ten per cent affordable housing, when rezoning to facilitate residential use.
• Provision of a minimum of ten per cent of affordable housing for a major residential development of 50 or more dwellings, unless affordable housing has been provided as part of an earlier rezoning.

1. We note that a policy cannot mandate a particular outcome. This is reflected in the very words of the policy itself, which creates a policy that only seeks to consider, as relevant, the provision of affordable housing.
2. The applicant opposes the permit condition, calling it an illegal developer contribution. It relies on s62(6) of the Planning and Environment Act 1987 (Vic) that seeks to regulate when a permit condition can be included that requires a person to pay an amount to provide for services. It sets out the following.

(6) The responsible authority must not include in a permit a condition requiring a person to pay an amount for or provide works, services or facilities except -

(a) in accordance with subsection (5), section 46N(1) or 46GV(7); or

(b) a condition that a planning scheme requires to be included as referred to in subsection (1)(a); or

(c) a condition that a determining referral authority requires to be included as referred to in subsection (1)(a).

1. Part (a) above refers to sections of the Act that refer to infrastructure contributions plans, which do not apply to the review site. Part (c) above refers to a condition required by a determining referral authority, which is not the case here.
2. Part (b) above does not apply here as the Yarra Planning Scheme does not require a permit condition to be included to the effect of providing affordable housing on the review site. In the applicant's oral submissions this was contrasted with Schedule 1 to the Comprehensive Development Zone and Schedules 5, 11 & 15 to the Development Plan Overlay of the Yarra Planning Scheme, that requires the provision of affordable housing on other land. No comparable requirement in the Yarra Planning Scheme applies to the review site.
3. A similar dispute was addressed by the Tribunal in the decision of Panorama Investment (Box Hill) Pty Ltd v Whitehorse CC [2018] VCAT 1490. We agree with the Tribunal's findings in that decision that in the absence of the voluntary agreement of the applicant to provide affordable housing, the Council has no power to apply such a permit condition relying on a policy basis alone.
4. For these reasons we find that the condition sought to be imposed by Council is invalid.

1. Our ultimate task as a decision maker is to determine whether a proposal achieves a net community benefit. This task is guided by Clause 71.02-3 of the Yarra Planning Scheme, which sets out the following.

Integrated decision making

Victorians have various needs and expectations such as land for settlement, protection of the environment, economic wellbeing, various social needs, proper management of resources and infrastructure. Planning aims to meet these needs and expectations by addressing aspects of economic, environmental and social wellbeing affected by land use and development.

The Planning Policy Framework operates together with the remainder of the scheme to deliver integrated decision making. Planning and responsible authorities should endeavour to integrate the range of planning policies relevant to the issues to be determined and balance conflicting objectives in favour of net community benefit and sustainable development for the benefit of present and future generations...

1. The assessment of whether a proposal can achieve a net community benefit recognises that any individual proposal can and will contain benefits and disbenefits, and that an ideal outcome[11] is not the benchmark that is to be ascertained. Rather, the benchmark is whether the proposal will produce an acceptable outcome, as set out at Clause 65 of the Yarra Planning Scheme.
2. The benefits of the proposal are numerous, and include those set out below:
   1. A real and meaningful contribution to additional housing supply in a time of great need;
   2. Restoration and conservation of significant heritage assets on the review site, which have been poorly treated in the past;
   3. Provision of an improved arrangement for unloading of vehicles, that will result in safer truck movements and a safer environment for pedestrians and cyclists on the surrounding road network;
   4. The provision of a more modern supermarket on the review site for the benefit of the surrounding community; and,
   5. The undergrounding of power lines in St David Street, and other improvements to the public realm, that will improve pedestrian access around the review site.
3. We acknowledge that countering these benefits will be a large building that contrasts with the low scale surrounds as found in the heritage residential area of this part of Fitzroy. We understand that this proposed large building will have an impact on some people's appreciation of this heritage place. However, we also need to recognise that the Yarra Planning Scheme is intentional in its support for a large building on the review site, that will stand in contrast to the low scale of buildings in the adjacent residential area. As we have explored above, the extent to which the proposed building exceeds the discretionary height guidance in DDO30, does not have a visual impact on views from the immediate environs, and will appear as a recessed and well designed top to the building on longer range views.
4. We also acknowledge that the proposed extended hours of the loading bay and an increase in small trucks in St David Street are further disbenefits, that will have an impact on the residential properties in St David Street. There will also be additional overshadowing of the north facing apartments and balconies to 250 Gore Street, however as the overshadowing is less than that which would be cast by a built form compliant with the discretionary controls under DDO30, we do not consider that to be a disbenefit that the Yarra Planning Scheme did not anticipate would occur.
5. Therefore, we consider that the proposed benefits of the proposal far outweigh the disbenefits, and that a net community benefit will be achieved.
6. We acknowledge that a proportion of the surrounding community is opposed to the proposed development of the review site. However, we are charged to make a decision in the interest of existing and future generations of Victorians.[12] To that end, we adopt the following words from the Tribunal decision of WAT385 Developer Pty Ltd v Stonnington CC [2023] VCAT 672.

[118] The Respondents submit that they represent the surrounding community, who do not consider that a net community benefit will be achieved. In addition to the community represented by the Respondents, I also need to have regard to those components or generations of the existing community who have not yet been able to break into the Malvern East housing market, as well as future generations of Victorians. It is these later sectors of the community that will benefit most from the provision of increased housing supply in this desirable and highly liveable location. For these reasons I find that the proposed development will achieve a net community benefit, and is worthy of the grant of a planning permit.

7. For the reasons set out above we find that the proposal will achieve a net community benefit, and is worthy of the grant of a planning permit under the various controls outlined elsewhere in this decision.

1. A number of other matters about permit conditions were raised by the parties. At the conclusion of the hearing the applicant circulated their preferred set of permit conditions. Following the hearing, and with the leave of the Tribunal, further material in response was filed by the Council and the applicant. The filing of this material has reduced the extent of permit conditions that are now in dispute between the parties.
2. With respect to those conditions that remain in dispute, other than those already addressed above, we summarise our conclusions as follows:
   1. We are persuaded by the applicant that it is appropriate that demolition and early site works can occur before the full endorsement of plans and various other reports. We will adopt the change sought to a number of permit conditions by the applicant to enable this to occur.
   2. We are also persuaded by the applicant that the proposal provides more than sufficient bicycle storage, and that no additional spaces are required by way of a permit condition. In accordance with Clause 52.34 of the Yarra Planning Scheme, the application is required to provide storage for 25 bicycles for residents, and 12 for visitors to the apartments. The plans before us depict storage for 114 bicycles for residents, and 30 spaces to be shared between visitors to the site, and staff for the supermarket. We have not been persuaded by the Council that additional spaces should be provided on site, on the basis of the reduction of car parking that is sought on the land, particularly given that the bicycle storage rates set out in Clause 52.34 of the Yarra Planning Scheme are substantially exceeded. As set out in our analysis above, the reduction of car parking to the dwellings has been justified based on existing car ownership rates in this location. The reduction of car parking to the supermarket has also been justified on the basis of the likely demand for car parking. If the proposal were seeking to encourage an even lower rate of car ownership than that which already occurs in this location for dwellings, or already occurs in similar locations for a supermarket, then we accept that may have been a reason to provide additional bicycle storage locations.
   3. We agree with the Council that there is a need for additional seating opportunities in the communal courtyard on level 3, noting that the landscape plan prepared by Oculus (21 July 2025) depicts seating for just 4 people. While we note that there is more generous seating opportunities in the communal open space at level 9, given the size of the development and the scale of the communal open space, we agree that additional seating opportunities should be provided on level 3.
   4. We support the changes to the Sustainable Management Plan (SMP) condition put forward by the applicant. In short, we are not persuaded by the Council to adopt certain standards for the rainwater tank size and extent of vegetation cover in the permit condition, but rather consider these should be subject to further assessment in the SMP. Further, while we acknowledge Council's identification that the preliminary NatHERS average rating is 7.8 starts, we are not persuaded that we need to make this a requirement in a permit condition. This is especially the case where the Council did not concede any additional height or yield on this site, in recognition of the achievement of a certain NatHERS average rating.
   5. The Council is concerned with the proposed noise levels from the loading bay, and their potential to cause sleep disturbance. On this basis, it asks that a permit condition require a sleep disturbance assessment. As we have decided to not allow the loading bay to operate beyond 8:00pm on any night, the sleep disturbance criteria for the night period does not apply to this loading bay, so there is no need for the permit condition as sought by Council.

1. For the reasons given above, the decision of the responsible authority is set aside. A permit is granted subject to conditions.

To construct a building or construct or carry out works

To construct a building or construct or carry out works

To externally alter a building by structural work, rendering, sandblasting or in any other way

To construct a building or construct or carry out works

To reduce the number of car parking spaces required under Clause 52.06-5

1. Before the use or development starts, excluding site establishment, demolition, heritage facade retention, bulk excavation, site preparation, soil removal, site remediation, in ground works and retention works, 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 this permit. The plans must be drawn to scale with dimensions, and must be generally in accordance with the plans prepared by Woods Bagot, Rev D, dated 17 July 2025 TP-20001, TP20101, TP22099,TP22101, TP22102, TP22201-TP22209, TP22301, TP32001, TP32002, TP32101, TP42101, TP42102, TP42201, TP42202, TP45001, TP45002, TP45003, TP90001, TP90102, TP90201- TP90209, TP-91101-TP91601, TP96001-TP96003 but modified to show:

(a) Clearly show the end of trip facilities within the supermarket tenancy, as per AS2890.3 and the City of Yarra Planning Scheme.

(b) Public accessibility to the visitor bicycle area clearly shown, with signage identifying the location of visitor bicycle parking annotated.

(c) The widths of the development vehicle entrance off St David Street dimensioned.

(d) Any changes associated with the provision of heritage interpretation panels or similar devices, as per Condition 4.

(e) Any changes recommended in the amended Sustainable Management Plan (SMP) required by Condition 22 of this planning permit.

(f) Any changes recommended in the amended Acoustic Report required by Condition 41 of this planning permit.

(g) Any changes recommended in the Loading Management Plan required by Condition 38 of this planning permit.

(h) Any changes recommended in the Waste Management Plan required by Condition 24 of this planning permit.

(i) Any changes recommended in the Wind Assessment required by Condition 44 of this planning permit.

(j) A convex mirror placed at the northeast corner of the supermarket car park accessway on St David Street, to provide improved visibility of pedestrians walking east along St David Street.

(k) pedestrian resident access abutting the loading dock on St David Street to be refined to achieve greater visibility from the public realm and to improve the sense of address.

(l) Allocation of external storage for the apartments that do not comply with required storage volume under Clause 58.05-4.

1. Before demolition, retention or excavation starts, a demolition plan to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. The demolition plan must be drawn to scale with dimensions and an electronic copy must be provided. The demolition plan must be drawn to scale with dimensions, and must be generally in accordance with the plans prepared by Woods Bagot, Rev D, dated 17 July 2025 TP-20001 and TP20101. When approved, this plan will be endorsed and will form part of this permit.
2. The use and development as shown on the endorsed plans must not be altered (unless the Yarra Planning Scheme specifies that a permit is not required) without the prior written consent of the Responsible Authority.

1. Before the use or development starts, excluding site establishment, demolition, heritage facade retention, bulk excavation, site preparation, soil removal, site remediation, in ground works and retention works, a Heritage Interpretation Plan which details the installation of interpretation devices on site must be approved to the satisfaction of the Responsible Authority. The Heritage Interpretation Plan will be endorsed and will then form part of this permit.
2. In conjunction with the submission of development plans under Condition 1 or by such later date as approved in writing by the Responsible Authority, a Heritage Conservation Works Plan and Schedule of Conservation Works to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the Heritage Conservation Works Plan and Schedule of Conservation Works will be endorsed and will form part of this permit. The Heritage Conservation Works Plan must include, but not be limited to, the following:

(a) All restoration works detailed within the Wood Bagot VCAT Amended Plans - Architectural Study dated July 2025.

(b) Fully dimensioned and accurately measured plans at a scale of no less than 1:50 prepared by a suitably qualified heritage practitioner/ architect, detailing:

1. The proposed reconstruction works to the existing façade including reconstruction of the Ackman's Furniture Warehouse façade at the uppermost level (Level 03) to accurately reflect the parapet and decorative architectural features and reconstruction of the parapet and architectural detailing above the retained Fitzroy Coffee Palace façade.

(c) A written description of the demolition and construction methods to be used.

1. The provisions, recommendations and requirements of the endorsed Heritage Conversation Works Plan and Schedule of Conservation Works must be implemented and complied with to the satisfaction of the Responsible Authority.

1. In conjunction with the submission of development plans under Condition 1, a Façade Strategy and Materials and Finishes Plan to the satisfaction of the Responsible Authority must be submitted to and be approved by the Responsible Authority. When approved, the Façade Strategy and Materials and Finishes Plan will be endorsed and will then form part of this permit. This must detail:

(a) elevation drawings at a scale of 1:20 illustrating typical podium details, entries and doors, and utilities and typical tower facade details;

(b) section drawings to demonstrate façade systems, including fixing details and joints between materials or changes in form;

(c) information about how the façade will be maintained, including any vegetation; and

(d) coloured drawings outlining colours, materials and finishes.

1. The provisions, recommendations and requirements of the endorsed Façade Strategy and Materials and Finishes Plan must be implemented and complied with to the satisfaction of the Responsible Authority.

1. As part of the ongoing consultant team, Woods Bagot or an architectural firm to the satisfaction of the Responsible Authority must be engaged to:

(a) oversee design and construction of the development; and

(b) ensure the design quality and appearance of the development is realised as shown in the plans endorsed under condition 1 of this planning permit or otherwise to the satisfaction of the Responsible Authority.

Department of Transport and Planning (conditions 10-11)

1. The permit holder must avoid disruption to tram operation along Smith Street during the construction of the development. Any planned disruptions to tram operation during construction and mitigation measures must be communicated to and approved by the Head, Transport for Victoria and Yarra Trams a minimum of thirty-five days (35) prior.
2. The permit holder must ensure that all track, tram and overhead infrastructure is not damaged. Any damage to public transport infrastructure must be rectified to the satisfaction of the Head, Transport for Victoria at the full cost of the permit holder.

1. Before the use or development starts, excluding site establishment, demolition, heritage facade retention, bulk excavation, site preparation, soil removal, site remediation, in ground works and retention works, an amended Landscape Plan to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the Landscape Plan will be endorsed and will form part of this permit. The amended Landscape Plan must be generally in accordance with the Landscape Design Plan prepared by Oculus, dated July 2025, but modified to show:

(a) The retention of the four existing street trees along Gore Street property frontage.

(b) A detailed planting plan(s) for each level of the development showing the location of proposed planting, including plant species and quantities, as well as a legend containing key features, materials, and surfaces.

(c) A planting schedule listing the proposed plant species (botanical and common name), installation size, width x height at maturity, and plant quantities.

(d) Detailed drawings for built elements such as landscaping walls and furniture, including critical dimensions.

(e) On-slab container planter detail drawings demonstrating:

1. Minimum soil depth to be provided for each planting type.
2. Volume and type of growing media.
3. Minimum dimensions of 450mm in width for perimeter planters.
4. Wind-resistant mulch is to be used for above ground planted areas.

(f) Typical detail drawings for surface materials such as paver types, gravel treatment, etc.

(g) Additional seating opportunities within the communal courtyard on level 3.

(h) Proposed irrigation including proposed water supply (potable or other), and type of irrigation (pop-ups or drip irrigation).

(i) Proposed maintenance schedule, including task details and frequency.

(j) A specification of works to be undertaken prior to planting.

1. Before the building is occupied, or by such later date as approved in writing by the Responsible Authority, the landscaping works shown on the endorsed landscape plan must be carried out and completed to the satisfaction of the Responsible Authority. The landscaping shown on the endorsed landscape plan must be maintained by:

(a) implementing and complying with the provisions, recommendations and requirements of the endorsed landscape maintenance plan;

(b) not using the areas set aside on the endorsed landscape plan for landscaping for any other purpose; and

(c) replacing any dead, diseased, dying or damaged plants, to the satisfaction of the Responsible Authority

1. Before the use and development commences, a Tree Management Plan to the satisfaction of the Responsible Authority must be prepared by a suitably qualified arborist and must be submitted to and approved by the Responsible Authority. When approved, the Tree Management Plan will be endorsed and will form part of this permit. In accordance with AS 4970 and to the satisfaction of the Responsible Authority, the TMP must make recommendations for the protection and preservation of the street trees along Gore Street and St David Street for each stage of the development (pre, during and post-construction). The recommended tree protection measures must include:

(a) Tree Protection Zones (TPZ) and Structural Root Zones (SRZ) calculated in accordance with the AS4970-2009 Protection of Trees on Development Sites.

(b) The development layout, all built features, including pavement, retaining walls, utilities, and drainage infrastructure.

(c) A Tree Protection Plan (scaled drawing) showing tree protection requirements for retained trees in accordance with the AS4970-2009 Protection of Trees on Development Sites including:

1. tree protection fence alignments and dimensions
2. areas of ground protection, i.e. where fencing cannot adequately afford tree protection or access across the TPZ is required.
3. location of Tree Protection Zone signage
4. a notation to refer to the TMP for additional detail
5. any exclusions or limitations to the TPP, including a list of any plans not assessed.

(d) A timeline of when the Project Arborist will be on site, including:

1. Any demolition along Gore Street
2. Any changes to levels or grades including crossovers or pram crossings on Gore Street within the TPZs of retained trees
3. regular, planned visits to ensure compliance with the TMP.

(e) Pruning required to Trees 1-4 including marked up photos of canopy proposed to be pruned.

1. Before the use and development commences, notice in writing must be provided to the responsible authority from a Project Arborist confirming their engagement to oversee all relevant tree protection works. The Project Arborist must be an appropriately experienced and qualified professional (minimum Diploma of Arboriculture or equivalent in experience).
2. The Project Arborist must maintain a log detailing all site visits and actions completed.
3. The provisions, recommendations and requirements of the endorsed Tree Management Plan must be complied with and implemented to the satisfaction of the Responsible Authority.

1. Before the use and development commences, the permit holder must provide an asset protection bond of $100,000 for the four street trees along the Gore Street property frontage to the Responsible Authority. The security bond:

(a) must be provided in a manner, and on terms, to the satisfaction of the Responsible Authority;

(b) may be held by the Responsible Authority until the works are completed to the satisfaction of the Responsible Authority; and

(c) in accordance with the requirements of this permit; or

(d) otherwise to the satisfaction of the Responsible Authority.

1. In conjunction with the submission of development plans under Condition 1 or by such later date as approved in writing by the Responsible Authority, a Public Realm Plan of all public realm improvements associated with the development must be prepared, submitted and approved by the Responsible Authority. When approved, the plan will be endorsed and will then form part of the permit. The Public Realm Plan must show, but not be limited to, the following, to satisfaction of the Responsible Authority:

(a) all footpath specifications;

(b) all kerb and channel specifications;

(c) all road pavement specifications;

(d) all detailed design plans;

(e) all roading and drainage infrastructure works including soft/hard landscaping;

(f) public lighting details;

(g) the undergrounding of powerlines in St David Street and the reconstruction of the southern footpath of St David Street; and

(h) street trees.

1. Before the use or development commences, or by such later date as approved in writing by the Responsible Authority, detailed design drawings of the works approved under the Public Realm Plan (as required by Condition 19) addressing all road infrastructure works (including soft/hard landscaping), must be submitted to and approved by the Responsible Authority. Once approved, the detailed design drawings will be endorsed and will then form part of the permit.
2. Before the development is occupied, or by such later date as approved in writing by the Responsible Authority, all works required by the endorsed Public Realm Plan must be constructed and completed at the full cost of the Permit Holder and to the satisfaction of the Responsible Authority.

1. In conjunction with the submission of development plans under Condition 1, 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 amended SMP will be endorsed and will form part of this permit. The amended SMP must be generally in accordance with the SMP prepared by Rewild and dated 21 July 2025, but modified to show or detail:

(a) Consistency with Condition 1 plans.

(b) Cooling loads for every dwelling demonstrating a maximum cooling load of 30MJ/m2 has not been exceeded.

(c) Confirmation that the proposal will achieve best practice daylight under BESS or equivalent sustainability rating tool.

(d) Vegetated landscaping calculation to include all vegetated areas across the development, including sheltered or partially covered landscape zones.

(e) A consistent average of at least 7 Stars be stated throughout all documents.

1. The provisions, recommendations and requirements of the endorsed SMP must be implemented and complied with to the satisfaction of the Responsible Authority.

1. In conjunction with the submission of development plans under Condition 1, an amended Waste Management Plan to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the amended Waste Management Plan will be endorsed and will form part of this permit. The amended Waste Management Plan must be generally in accordance with the Waste Management Plan prepared by MCG Consult and dated 21 July 2025 but modified to include:

1. The provisions, recommendations and requirements of the endorsed waste management plan must be implemented and complied with to the satisfaction of the Responsible Authority.

1. In conjunction with the submission of development plans under Condition 1 or by such later date as approved in writing by the Responsible Authority, vehicle crossing designs must be submitted to Council's Civil Engineering Department for approval. The submitted designs must demonstrate compliance with City of Yarra's, Vehicle Crossing Information Sheet.
2. Before the development is occupied, or by such later date as approved in writing by the Responsible Authority, any new vehicle crossing must be constructed:

(a) at the permit holder's cost; and

(b) to the satisfaction of the Responsible Authority.

1. Before the development is occupied, or by such later date as approved in writing by the Responsible Authority, any redundant vehicular crossing must be demolished and reinstated as footpath, verge (if applicable), and kerb and channel:

(a) at the permit holder's cost; and

(b) to the satisfaction of the Responsible Authority.

1. Before the use or development starts, excluding site establishment, demolition, heritage facade retention, bulk excavation, site preparation, soil removal, site remediation, in ground works and retention works, or by such later date as approved in writing by the Responsible Authority, a Public Lighting Plan must be submitted to and approved by Council's Civil Engineering Department. When approved, the Public Lighting Plan will be endorsed and will form part of this permit. The Public Lighting Plan must be designed:

(a) address lighting along Hodgson St between Smith St and Gore St and the entrance to the approved building.

(b) to comply with uniformity, access and maintenance requirements as per standard AS1158.3.1;

(c) to control light spillage in accordance with the requirements of AS 4282 - 2019, "Control of the obtrusive effects of outdoor lighting"; and

(d) to the satisfaction of the Responsible Authority.

1. The provisions, recommendations and requirements of the endorsed Public Lighting Plan must be implemented and complied with at no cost to Council and to the satisfaction of the Responsible Authority.
2. Before any existing public lighting is removed a temporary lighting plan to the satisfaction of the Responsible Authority must be submitted and approved by Council's Civil Engineering Department. The temporary lighting plan is to be installed at the permit holder's cost and must remain operational until a new permanent lighting scheme is installed and operational to the satisfaction of the Responsible Authority.
3. Before the development is occupied or by such later date as approved in writing by the Responsible Authority, the footpath along the property's Hodgson St and St David St frontage/s must be reconstructed in asphalt:

(a) at the permit holder's cost; and

(b) to the satisfaction of the Responsible Authority.

1. Before the development is occupied or by such later date as approved in writing by the Responsible Authority, the footpath along the property's Gore St and Smith St frontages must be re-sheeted in asphalt:

(a) at the permit holder's cost; and

(b) to the satisfaction of the Responsible Authority.

1. Before the development is occupied, or by such later date as approved in writing by the Responsible Authority, the kerb and channel along the property's Hodgson St and St David St frontages must be reconstructed:

(a) at the permit holder's cost; and

(b) to the satisfaction of the Responsible Authority.

1. The proposed verandah along Smith St must not discharge rainwater onto the footpath. Rain must be captured and discharged into the development's internal stormwater drainage system through a piped drainage system.
2. All driveways must be constructed with the pedestrian path being at grade with the adjoining footpath in accordance with Council's engineering standards.
3. Surface storm water from the road reserve must not be able to enter the Gore Street properties at their doorways. Should steps be provided from footpath level, all steps must be provided within the property boundaries.

1. Before the use or development starts, excluding site establishment, demolition, heritage facade retention, bulk excavation, site preparation, soil removal, site remediation, in ground works and retention works, a Loading Management Plan to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the Loading Management Plan will be endorsed and will form part of this permit. The amended Loading Management Plan must be generally in accordance with the Loading Management Plan prepared by Traffix dated 21 July 2025, but modified to:

(a) Explain that, in the event a second truck enters St David Street when the supermarket loading dock is occupied:

1. the second truck should use the on-street holding space to the west on St David Street;
2. a spotter is required for the reverse movements when the second truck proceeds to enter the loading dock; and,
3. no trucks should enter Hargreaves Street.

(b) Show the location of the on-street holding space to the west on St David Street.

(c) remove the requirement to use Hargreaves Street to exit to the local road network and electronic signage along the corner of Smith Street and St David Street.

(d) Limit supermarket loading hours to:

1. Monday - Friday 7:00am - 8:00pm
2. Saturday 7:00am - 8:00pm
3. Sunday 9:00am - 5:00pm.

1. The Loading Management Plan must not be altered without the prior written consent of the Responsible Authority.
2. All loading and unloading of vehicles and the delivery of goods to and from the land must be carried out in accordance with the endorsed Loading Management Plan and to the satisfaction of the Responsible Authority.

1. Before the use and development commences, an amended 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 amended Acoustic Report must be generally in accordance with the Acoustic Report prepared by Marshall Day Acoustics, dated 21 July 2025, but modified to show/include:

(a) Consistency with Condition 1 plans.

(b) Include 109 St David Street in the assessment as a sensitive receiver if this site includes residential usage (with particular regard to noise from the proposed loading dock).

(c) The future assessment of mechanical plant noise and substation be conducted by a suitably qualified acoustic consultant.

(d) Proposed operating hours for the loading dock stated in Section 8.2 of the report.

(e) Correction to show 45dBA predicted at 111 St David Street for the 'general and organic waste truck'.

(f) The maximum source noise levels for the carpark and loading dock doors (e.g. Lmax at 3m) specified.

(g) Noise from the loading dock door included as a contribution in the overall EPA Publication 1826 assessment of noise from the loading dock.

(h) The noise ingress criteria for traffic and trams to be consistent with sections 3.3 and 4.3 respectively of the City of Yarra 'Guidelines- managing noise impacts in urban development' document.

(i) Clarification of whether the traffic and tram noise source levels are based on measurements conducted in March 2017 (as per Section 6.2 of the report) or December 2024 (as per page 38 of the report). If the source levels are based on measurements from 2017, source level measurements should be conducted again.

(j) The references in the first two sentences of Section 12.1 for walls to "ideally" being of certain constructions to either be a formal recommendation or be accompanied by a specification of a minimum Rw or Rw+Ctr that needs to be met.

(k) The communal outdoor areas to be closed between 10 pm to 7 am, or a sleep disturbance assessment be provided in the acoustic report.

(l) Waste collections be limited to the hours recommended in EPA Publication 1254, with the wording "where possible" removed from Section 7.5 of the report.

1. Before the development is occupied, an updated acoustic report prepared by a suitably qualified acoustic engineer to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. The report must:

(a) Provide evidence of compliance with the requirements of the endorsed Acoustic Report.

1. The recommendations and any works contained in the approved acoustic report must be implemented and completed and where there are recommendations of an ongoing nature must be maintained all to the satisfaction of the Responsible Authority.

1. In conjunction with the submission of development plans under Condition 1, an amended Wind Assessment (labelled as Pedestrian Wind Assessment) to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the amended Wind Assessment will be endorsed and will form part of this permit. The amended Wind Assessment must be generally in accordance with the Wind Assessment prepared by Pedestrian Wind Assessment - RWDI July 21 2025, but modified to:

(a) accurately reflect the plans required by Condition 1 of this Permit; and

(b) include wind tunnel testing demonstrating that acceptable wind levels will result from the development on and off site.

1. The provisions, recommendations and requirements of the endorsed Wind Assessment must be implemented and complied with to the satisfaction of the Responsible Authority.

1. Before the development is occupied, an amended Green Travel Plan (GTP) to the satisfaction of the Responsible Authority must be prepared by a suitably qualified professional and must be submitted to and approved by the Responsible Authority. When approved, the GTP will be endorsed and will form part of this permit. The amended GTP must be generally in accordance with the report by MCG Consult dated 21 July 2025 but modified to show or address:

1. The provisions, recommendations and requirements of the endorsed GTP must be implemented and complied with to the satisfaction of the Responsible Authority.

1. Before the building is occupied, or by such later date as approved in writing by the Responsible Authority, the area set aside on the endorsed plans for the car parking spaces, access lanes, driveways and associated works must be:

(a) constructed and available for use in accordance with the endorsed plans;

(b) formed to such levels and drained so that they can be used in accordance with the endorsed plans;

(c) treated with an all-weather seal or some other durable surface; and

(d) line-marked or provided with some adequate means of showing the car parking spaces;

1. Before the building is occupied, any wall located on a boundary facing public property must be treated with an anti- graffiti finish to the satisfaction of the Responsible Authority. The provisions, recommendations and requirements of the endorsed Construction Management Plan must be implemented and complied with to the satisfaction of the Responsible Authority.
2. Before the building is occupied, or by such later date as approved in writing by the Responsible Authority, any damage to Council infrastructure resulting from the development must be reinstated:

(a) at the permit holder's cost; and

(b) to the satisfaction of the Responsible Authority.

1. Before the building is occupied, or by such later date as approved in writing by the Responsible Authority, all new on-boundary walls must be cleaned and finished to the satisfaction of the Responsible Authority.
2. Before the development is occupied, or by such later date as approved in writing by the Responsible Authority, all screening and other measures to prevent overlooking as shown on the endorsed plans must be installed to the satisfaction of the Responsible Authority. Once installed the screening and other measures must be maintained to the satisfaction of the Responsible Authority.
3. Any new apartment development allowed by this permit must not be connected to a reticulated gas service (within the meaning of clause 53.03 of the relevant planning scheme). This condition continues to have force and effect after the development authorised by this permit has been completed.

1. Prior to the commencement of the use and development, the Development Infrastructure Levy must be paid to Yarra City Council in accordance with the approved Development Contributions Plan.

1. Prior to the issue of a building permit, the Community Infrastructure Levy must be paid to Yarra City Council in accordance with the approved Development Contributions Plan.

1. Before the use and 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 and will form part of this permit. The plan must provide for (as appropriate):

(a) a pre-conditions survey (dilapidation report) of the land and all adjacent Council road frontages and nearby road infrastructure;

(b) works necessary to protect road and other infrastructure;

(c) remediation of any damage to road and other infrastructure;

(d) containment of dust, dirt and mud within the land and method and frequency of clean up procedures to prevent the accumulation of dust, dirt and mud outside the land;

(e) facilities for vehicle washing, which must be located on the land;

(f) 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;

(g) site security;

(h) management of any environmental hazards including, but not limited to:

1. contaminated soil;
2. materials and waste;
3. dust;
4. stormwater contamination from run-off and wash-waters;
5. sediment from the land on roads;
6. washing of concrete trucks and other vehicles and machinery; and
7. spillage from refuelling cranes and other vehicles and machinery;

(i) the construction program;

(j) preferred arrangements for trucks delivering to the land, including delivery and unloading points and expected duration and frequency;

(k) parking facilities for construction workers;

(l) measures to ensure that all work on the land will be carried out in accordance with the Construction Management Plan;

(m) an outline of requests to occupy public footpaths or roads, or anticipated disruptions to local services;

(n) 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;

(o) 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;

(p) a Noise and Vibration Management Plan showing methods to minimise noise and vibration impacts on nearby properties (including businesses) and to demonstrate compliance with Noise Control Guideline 12 for Construction (Publication 1254) as issued by the Environment Protection Authority in October 2008. The Noise and Vibration Management Plan must be prepared to the satisfaction of the Responsible Authority. In preparing the Noise and Vibration Management Plan, consideration must be given to:

1. using lower noise work practice and equipment;
2. the suitability of the land for the use of an electric crane;
3. silencing all mechanical plant by the best practical means using current technology;
4. fitting pneumatic tools with an effective silencer; and
5. other relevant considerations (including impacts on the operation of businesses);

(q) a detailed dilapidation report detailing and documenting the existing and post construction conditions of surrounding road infrastructure and adjoining private properties;

(r) if any existing public lighting assets require temporary disconnection, alternative lighting must be provided to maintain adequate lighting levels. A temporary lighting scheme can only be approved by Council and relevant power authority. Existing public lighting could only be disconnected once temporary alternative lighting scheme becomes operational; and

(s) any site-specific requirements.

(a) any stormwater discharged into the stormwater drainage system must be in compliance with Environment Protection Authority guidelines;

(b) stormwater drainage system protection measures must be installed as required to ensure that no solid waste, sediment, sand, soil, clay or stones from the land enters the stormwater drainage system;

(c) vehicle borne material must not accumulate on the roads abutting the land;

(d) the cleaning of machinery and equipment must take place on the land and not on adjacent footpaths or roads; and

(e) all litter (including items such as cement bags, food packaging and plastic strapping) must be disposed of responsibly.

1. The provisions, recommendations and requirements of the endorsed Construction Management Plan must be implemented and complied with to the satisfaction of the Responsible Authority.

1. Except with the prior written consent of the Responsible Authority, demolition or construction works must not be carried out:

(a) Monday-Friday (excluding public holidays) before 7 am or after 6 pm,;

(b) Saturdays and public holidays (other than ANZAC Day, Christmas Day and Good Friday) before 9 am or after 3 pm; or

(c) Sundays, ANZAC Day, Christmas Day and Good Friday at any time.

1. This permit will expire if one of the following circumstances applies:

(a) The development is not started within three (3) years of the issued date of this permit.

(b) The development is not completed within five (5) years of the issued date of this permit.

(c) The use does not start within two (2) years of completion of the development.

In accordance with Section 69 of the Planning and Environment Act 1987 (Vic), an application may be submitted to the Responsible Authority for an extension of the periods referred to in this condition.

[1] Section 4(2)(d) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) states a failure to make a decision is deemed to be a decision to refuse to make the decision.

[2] 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.

[3] When measured in accordance with the definition of Street wall height as provided in DDO30.

[4] Both of these heights are arrived at from using the parapet heights and the natural ground levels provided on the East West Section on Plan TP-32101.

[5] As measured according to the definition of street wall height set out in DDO30, which in this context, "means the height of the street wall measured by the vertical distance between the footpath at the centre of the frontage and the highest point of the building, parapet, balustrade or eaves at the street edge."

[6] Paragraph 93 of Ms Milner's written evidence statement.

[7] Planning and Urban Context Report (Tract, 8 August 2022).

[8] Paragraphs 117-119 of Ms Milner's written evidence statement.

[9] Taken from page 37 of Ms Milner's evidence statement.

[10] Mr Pagliaro clarified in response to cross examination that 31% of the proposed apartments either had no private open space, or areas less than that required by Standard D20, although we understand that this figure is prior to the changes recommended by Mr Talacko.

[11] A concept explored in the decisions of Knox City Council v Tulcany Pty Ltd [2004] VSC 375 and Rozen & Anor v Macedon Ranges Shire Council & Anor [2010] VSC 583.

[12] A reference to both Clause 71.02-3 of the Yarra Planning Scheme, and s4(1)(g) of the Planning and Environment Act 1987 (Vic).