1. At the commencement of the hearing there were a number of procedural issues which needed to be resolved including the substitution of plans and change of the Applicant's name. These we agreed to and our order reflects both the substitution of plans and the name change.
2. We were also asked to deal with two other procedural matters as preliminary issues. These are:
   • Whether the Stage 1B proposal is 'generally in accordance with' the objectives, design principles and plans of the Preston Market Incorporated Plan 2007 and therefore unable to be contested by third parties?
   • Whether the objector neighbours have any rights at all to make objections to the proposed 'drainage and flooding' aspects of the proposal?
3. At the outset, there was some useful discussion regarding the best way to proceed given the uncertainty about the standing of the objectors to be able to contest the merits of the Stage 1B proposal. Mr Tweedie for the Applicant indicated that, whilst still relying on the third party exemptions for Stage 1B and under the Special Building Overlay, the Applicant acknowledged that it was both reasonable and practical for the objectors to be given the opportunity to comment on the whole proposal rather than try and limit them to only certain matters.
4. We agreed with that suggestion and the hearing unfolded on the basis that the respondent objectors were widely involved in the hearing. However we made it clear that the Tribunal would, in its written reasons, make a finding whether or not the respondent objectors have any standing to contest the Stage 1B merits and the flooding/drainage issues.
5. We now discuss each of those issues.

Is the Stage 1B proposal 'generally in accordance with' the objectives, design principles and plans of the Preston Market Incorporated Plan 2007 and therefore unable to be contested by third parties?

1. The Priority Development Zone Schedule 1 includes an exemption from third party objections and appeal rights in certain circumstances. For the purposes of this part of our reasons, the penultimate paragraph of Section 4 of the parent provision of PDZ which deals with 'Buildings and works' is relevant. Under a sub-heading of 'Exemption from notice and review', it is provided that a planning application for 'buildings and works' that is "...generally in accordance with the objectives, design principles and plans of the Preston Market Incorporated Plan (2007)..." is exempted from third party objection and appeal rights.
2. In other words, if this 'generally in accordance with' test is met, then any planning merits debate about the proposed buildings and works (whether before Council or before VCAT) is limited to a planning permit application dispute between Council and the permit applicant. The final sentence of the same paragraph makes it quite clear that this exemption does not apply where any proposed building would exceed the preferred 10 storey height limit[4]. The proposed Loft Building, Laneway Building, associated podium and all other Stage 1B works satisfy this preferred height limit.

1. In its processing of the Stage 1B planning permit application, the Council Planning Department concluded that the Stage 1B permit application to be 'generally in accordance with' the 2007 Incorporated Plan. Accordingly, one of the reasons for the Planning Department's support for the proposal was its view that any objector residents do not have 'standing' to object to Stage 1B.
2. Council is disputing the planning merits of Stage 1B. However in respect to this question of the 'standing' of the objector residents, at [48] of Council's written submission at the hearing, it is stated that:

Since the Council Officer formed the view that the Stage 1B application was generally in accordance with the Incorporated Plan, that application was generally exempt from the notice requirements and review rights of the PE Act.

1. Council's submission therefore does not contradict the Officer's opinion and reaffirms that Stage 1B meets this 'generally in accordance with' test.

1. This issue has been considered on a number of occasions by the Tribunal but the most pertinent case is Fabcot Pty Ltd v Whittlesea CC [2014] VCAT 600. In that determination the Tribunal set out the following principles for considering the 'generally in accordance with' test:
   • General accordance is a question of fact, to be assessed on the facts and circumstances of each case.
   • The less precision there is in the primary document(s), the more flexibility is given by the phrase 'generally in accordance with'.
   • 'Generally in accordance with' does not require the proposed development to be identical to that described in the development plan or incorporated plan.
   • It is appropriate to read the development plan or incorporated plan as a whole when making this assessment, and to have regard to the objectives, responses and plans comprising the approved plan.

1. For the following reasons, we are satisfied that Stage 1B is 'generally in accordance with the objectives, design principles and plans of the Preston Market Incorporated Plan (2007)', so as to make Stage 1B exempt from third party rights of objection/appeal. Accordingly we have approached our consideration of the planning merits of Stage 1B simply on the basis of the competing submissions made by Council and the Applicant.
2. First, it is important to acknowledge that common sense would suggest that a test of 'generally in accordance with' grants a degree of flexibility with how the planning proposal in question responds to the development plan or incorporated plan in question. Given this 'degree of flexibility', for it to be shown that a proposal fails to meet the 'generally in accordance with' test, the alleged discrepancies need to be considerably more than just trifling differences. This is reinforced by the Fabcot finding that being 'generally in accordance with' does not require a proposal to be identical to that described in the relevant document.
3. Second, it is of importance that the relevant points of reference in the 2007 Incorporated Plan are lengthy and detailed. Where Page 6 of the 2007 document sets out the relevant 'Use and Development Objectives', there are not merely a handful of them but 16 bullet points. Similarly, the relevant 'Design Principles' extend over 8 pages, involve seven topics and 28 main bullet points. The second Fabcot principle listed above is that 'The less precision there is in the primary document(s), the more flexibility is given by the phrase 'generally in accordance with''. It is self-evident that with such detailed and lengthy Objectives and Design Principles in the Preston Market Incorporated Plan, the 'generally in accordance with' test needs to be applied with a degree of leeway.
4. Third, it is appropriate that we give significant weight to the fact that both the Council and its Planning Department accept that Stage 1B has met this 'generally in accordance with' test.
5. Finally on this issue, we not persuaded that any of the alleged shortcomings or less favourable features of Stage 1B raised by the respondent objectors are of such consequence as to make the Stage 1B proposal fail to be 'generally in accordance with' the 2007 Incorporated Plan. Whilst respecting the genuine views and concerns of the resident objectors, we consider the points raised by the resident objectors about Stage 1B to be more about design detail, rather than raising fundamental discrepancies or inconsistencies with how Stage 1B responds to the relevant Objectives and Design Principles.
6. Importantly in terms of height, both the Loft and the Laneway Buildings comply with the preferred 10 storey height limit. Despite submissions to the contrary, we are not persuaded that other aspects of Stage 1B are not generally in accordance with the Incorporated Plan.
7. At [47] of the Council's written submission, it is explained that Council's Planning Department found Stage 1B to be 'generally in accordance with' the objectives, design principles and plans, because the application was:

(a) on land identified for multi-level mixed use development;

(b) on land identified as being suitable for retail and commercial uses;

(c) on land identified as being suitable for a preferred building height of up to 10 storeys;

(d) on land that ensures that the substantial fresh fruit market component of the Preston Market is retained; and

(e) on land that is not identified as being used for primary or secondary pedestrian connections or an internal market plaza.

Do the respondent objectors have any 'standing' to make submissions in relation to flooding/drainage issues?

1. Much of the broader Preston Market site is affected by a Special Building Overlay (SBO). In contrast to the more complex potential exemption discussed above with Stage 1B, Clause 44.05-4 is quite 'black and white' in providing that any planning permit application under the SBO is exempt from any third party objections or appeal rights.
2. Accordingly, the default position here is that no respondent objectors in either proceeding have 'standing' to make submissions on flooding or drainage.
3. During the hearing, Mr Pizer submitted that on occasion, a resident objector might still be allowed on comment on a planning issue, despite such an exemption operating, if the Tribunal considers this as valid and appropriate under Clause 65 of the Planning Scheme.
4. Although Mr Erlandsen made detailed submissions about flooding and drainage issues, we are not persuaded that there are exceptional reasons which justify the Tribunal having regard to any objector comments about flooding or drainage issues under Clause 65. We are not persuaded to overlook the exemption which applies and have assessed this aspect of the planning merits simply relying on the submissions from Council and the Applicant, and taking note that Melbourne Water is not objecting to the proposal (subject to conditions).
5. In particular, we rely upon the fact that Melbourne Water, as the relevant authority under the SBO, does not share Mr Erlander's concerns and that any permit which issues will include at least one permit condition providing a follow up process with how drainage and flooding issues are dealt with.
6. The SBO exemption was inserted to specifically exclude third parties and we consider that ignoring the exemption on a one-off or ad hoc basis will undermine such exemption if the planning assessment process fails to give it proper weight. Our position here is consistent with that taken in the previous decision of BG Serrell St Developer Pty Ltd v Stonnington CC [2015] VCAT 883.

1. Although not dealt with as a preliminary issue during the hearing, the operation of an existing Section 173 Agreement was the subject of a detailed submission by Mr Forrester on behalf of two independent owners of land within the Preston Market site. Aside from the built form impacts and the specific provision of car parking, which we discuss separately later in our reasons, we consider it helpful to discuss the legal implications at this point before we address the planning and design issues in dispute between the parties.
2. There was discussion during the hearing of the Section 173 Agreement No. AB695035U dated 14 November 2002 which affects the whole Preston Market site. Whilst the Section 173 Agreement is a relatively complicated agreement, it is unnecessary for our purposes to describe its operation in any detail.
3. In his written submission, Mr Forrester who appeared for R&C Mazzei Nominees Pty Ltd and Padds Holdings Pty Ltd (the owners of a handful of land parcels in the broader market site), stated at [27] that the 173 Agreement serves two purposes, being:
   • (a) Requiring the ongoing provision of appropriate, publically accessible car parking for the Market; and
   • (b) Protecting the rights of independent market owners to use easements expressed to be for the benefit of Council.
4. By way of explanation, the relevant land titles show certain areas of the whole market site as being subject to various easements in favour of Council. We understand this reflects the situation where over time Council resolved to close and sell off certain minor streets that used to run through the market site, but where Council still needed access rights for any underground infrastructure in these former streets.
5. We were also provided by Mr Forrester with a useful marked up colour A4 plan for the whole market site. This marked up plan distinguishes between land then owned (at the time the Section 173 Agreement was entered into) by the then dominant landowner Presmar Market, compared to land which was then independently owned and also general at-grade 'car parking land'.
6. In his submission, Mr Forrester urged the Tribunal to find that this Section 173 Agreement is still operational and still sets minimum on-site car parking requirements/parking formulas for the relevant traders operating on the subject land from time to time. This is with reference to whether any one trader's site falls within what the 173 Agreement identifies as the 'Presmar Market land' or the 'independent owners' land'.
7. Following this line of thinking but with three provisos, where the Stage 1B and Stage 1C projects will (if approved and built) create large new floor areas, there is a flow-on effect under the 173 Agreement that:
   • 245 on-site parking spaces must still be provided for the 'independent owners' land'.
   • Plus a certain number of on-site car spaces must be provided for any new uses occurring on the Presmar Market land, on a 'sliding scale' basis accordingly to how much floor area is involved.
8. Taking Mr Forrester's submissions at their highest, because the three new towers and podium will create a major extent of new floor area on the Presmar Market land, many hundreds of new on-site car parking spaces must be created to maintain compliance with the Section 173 Agreement. That is, hundreds of new on-site car parking spaces are required in association with this new floor area, above and beyond the current on-site parking provision. This is in the context of the Stage 1B and 1C proposals together involving a net outcome of 99 less publicly accessible on-site parking spaces across the whole market site. In Mr Forrester's main submissions, we were urged to view this as a fatal flaw in the proposal.
9. The three provisos foreshadowed in paragraph 81 are as follows. First, as acknowledged by Mr Forrester, the key case here is Boroondara CC v Sixty-Fifth Eternity Pty Ltd (2012) 188 LEGRA 95. In essence, this case stands for the position that the planning decision maker may still potentially approve a planning permit, despite the proposal breaching a Section 173 Agreement. However at [52] Justice Emerton notes that the legislature has given Section 173 Agreements "considerable importance" and that such agreements are intended to operate "harmoniously" with planning permits. Accordingly, Mr Forrester acknowledged that it would still be possible for us to approve the Stage 1B and/or Stage 1C applications, even if we found either or both to breach this Section 173 Agreement.
10. The second proviso is that the Section 173 Agreement does allow for the possibility that even if the necessary additional car parking (to satisfy the 173 Agreement) cannot be provided on-site, there is the ability to instead provide such parking in certain other nearby areas around the site. Whilst this may well throw up practical difficulties, Mr Forrester conceded this was at least a theoretical possibility.
11. The third proviso is that the terms of the Section 173 Agreement included some provision for the parties being able to end the current agreement and enter into an equivalent new agreement. Hence Mr Forrester acknowledged that the current Section 173 Agreement might become superseded, although he argued that roughly equivalent parking obligations would need to flow across to any replacement 173 Agreement.
12. Later in the hearing, Mr Walker responded on this issue on behalf of the Applicant. For our purposes here, suffice to say that Mr Walker argued that the position advanced by Mr Forrester is fundamentally misguided and should be rejected by the Tribunal. Notably, he argued that:
    • Where the Section 173 Agreement requires 245 on-site parking spaces to be provided in relation to the 'independent owners' land', these spaces can also be used by others and can be counted as part of (rather than independently from) any other car parking requirements imposed by the Section 173 Agreement.
    • On a correct reading, the 173 Agreement merely requires any necessary residential car parking to be provided at the statutory rate allowed for by the planning scheme (including any dispensation).
    • Even if the Applicant was shown to be wrong with the two points above, there is still the ability under the 173 Agreement for any additional car parking required by that agreement to be provided on other nearby land which the applicant could either own or lease. In other words, the Section 173 Agreement allows for an 'overflow arrangement' which the Applicant could pursue.
13. In summary, Mr Walker argued that it had not been shown that the Stage 1B and 1C projects would result in any breach of the Section 173 Agreement. He also submitted that given the degree of latitude afforded by the Boroondara CC v Sixty-Fifth Eternity decision, it is not necessary for the Tribunal to make any final ruling on what are complex issues of interpretation. Rather, Mr Walker urged the Tribunal to take the approach that any definitive resolution of the role of the Section 173 Agreement should occur either in the courts or otherwise in separate Tribunal Declaration or planning enforcement hearings.
14. We then asked Mr Forrester for his response to these points, bearing in mind that these two combined proceedings before us are simply planning merits proceedings i.e. not a more specialist Application for Declaration or a planning enforcement proceeding.
15. Mr Forrester quite properly acknowledged that there was some real force to the line of thinking that:
    • The 'correct' interpretation of the Section 173 Agreement is a quite complex matter.
    • If this requires very detailed submissions and analysis to be fully resolved, this may be better suited to court proceedings or a separate Tribunal proceeding.
    • One way forward here would be for the Tribunal to simply acknowledge that there are unresolved 'issues of interpretation' with the Section 173 Agreement, but leave this to be resolved as needed, at a later stage.
16. Turning to the Tribunal's findings, relying on the Boroondara CC v Sixty-fifth Eternity decision and the factors discussed in the three bullets above, the Tribunal is satisfied that it is fair and reasonable to treat the Section 173 Agreement as no bar to the potential approval of either Stage 1B and/or Stage 1C.
17. Whilst we acknowledge that there is an arguable case that either of the proposed stages could involve a breach of the 173 Agreement car parking requirements, at this stage we consider this to involve a substantial level of unresolved uncertainty. We see the most practical and appropriate approach as being to leave it up to the key stakeholders whether any of them wish to bring these car parking issues with the Section 173 Agreement to a head in some other litigation at a later time. If it can be shown there is definitely a breach of the Section 173 Agreement caused by Stage 1B and/or Stage 1C, this can be dealt with at the time.
18. We see our finding set out in the paragraph above as reinforced by the fact that it is Council (rather than Mr Forrester's clients) that is a party to the Section 173 Agreement. In other words, it assists the Applicant's position here that Council is aware of the arguments being raised by Mr Forrester, but Council itself did not pursue these arguments at the hearing.

1. We now turn to discuss our substantive planning assessment of the proposal.

The Tribunal must make its decision based on the whole of the applicable planning framework

1. It is important for all parties to understand how the Tribunal is obliged to carry out its decision making with these proceedings.
2. The Tribunal cannot carry out its decision making according to 'loose notions of what it might see as fair'. Rather, if one starts at 'first principles':
   • The State planning policies include the important direction at Clause 11 of the planning scheme that our planning system is promoting 'net community benefit', also with regard to 'sustainable development'.
   • The Supreme Court decision of Knox City Council v Tulcany Pty Ltd [2004] VSC 375 is authority that a planning permit application needs to be 'acceptable' to warrant being approved. This decision reinforces that it would be excessive to require that planning proposals be shown to be 'optimal' or 'ideal', which are in themselves very subjective judgments.
3. Moving then to the facts of these combined proceedings, the primary zoning is the Priority Development Zone Schedule 1. As we have previously observed, although the site is also affected by three overlay controls, the Environmental Audit Overlay and the Development Contributions Overlay have played no real role in our discretion. The Special Building Overlay has come into play but within the fairly narrow confines of whether there would be any unreasonable drainage/flooding issues.
4. It follows that our main focus has been on the PDZ1. The parent PDZ control includes the following purposes:

To implement the State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies.

To recognise or provide for the use and development of land for projects and areas of regional or State significance.

To provide for a range of uses and the development of land in accordance with a plan incorporated into this scheme.

1. In Schedule 1, the first part of the text recognises the Preston Market Incorporated Plan 2007 as being the Incorporated Plan for the purposes of the Schedule and then describes the Preston Market land. The following are listed objectives :
   • To implement the use and development objectives and design principles of the Preston Market Incorporated Plan (2007).
   • To encourage intensive development and use of the land for retail, residential, office, entertainment, community and civil activity.
   • To encourage high quality urban design that is responsive to the site's environs, improves local accessibility and permeability through the site, and provides active edges throughout the site.
   • To provide opportunities for sustainable travel and increased use of public transport.
2. The Incorporated Plan also includes Use and Development Objectives.
3. During the hearing, Council and the resident objectors on many occasions emphasised the important role of the existing Preston Market. We acknowledge that one of the use and development objectives is "To retain and enhance a substantial fresh food market component with associated market activities".
4. However it also needs to be said that the above-quoted objective is one of 16 use and development objectives and that all must be read together. No single objective has primacy over any other. For example, another use and development objective highlighted by the Applicant is:

To facilitate high density residential development, including affordable housing opportunities, above ground level.

To encourage the development of the Preston Market site as a multi-level mixed-use area.

1. Whilst it is unnecessary to describe all 16 of them, the other use and development objectives generally point to the preferred form of design and land use outcomes being encouraged for the site.
2. Whilst parties focussed much of their attention on the often quite specific outcomes sought by the Preston Market Incorporated Plan 2007, the Tribunal must also take into account the many hundreds of policies and other relevant factors such as case law, and the physical nature of the site and locality.
3. In summary then, in carrying out our assessment of the planning merits of the proposal, the Tribunal at a very high level is assessing the net community benefit of the proposal, and whether or not it would be acceptable. At a more detailed level, our key focus is the three nominated purposes of the PRZ, which in turn call up the four nominated objectives of the Schedule 1 document, which in turn references the 16 use and development objectives from page 6 of the Preston Market Incorporated Plan 2007.
4. What is self-evident is that there are a wide range of purposes and objectives which the Tribunal must take into account. We would have miscarried in our role if, in our decision making, we were to take a single-minded approach and give priority to any one of these purposes or objectives to the exclusion of the others. Rather, the Tribunal must in an integrated way assess the proposal with regard to this range of nominated purposes and objectives.
5. With this in mind, we do not accept the suggestion raised at certain points during the hearing that the main consideration which the Tribunal should give priority to in our decision making is simply the retention and enhancement of the existing Preston Market. In other words, whilst this clearly is an important objective, it is one of many which we are obliged to take into account in a balanced manner. There is no credibility in any party to this proceeding cherry-picking one or two purposes or objectives which suits his or her case, and conveniently disregarding other less favourable ones.
6. With this in mind, where any of the resident objectors made submissions to us which elevate the role of the existing market above the other relevant purposes and objectives, we consider such submissions to be misguided and to carry little weight.
7. Similarly in relation to the expert evidence of Dr Stanley, we consider that evidence to be flawed in that Dr Stanley by her own admission was mainly focusing on whether or not the Stage 1B and Stage 1C proposals would promote the retention and enhancement of the existing market. She also conceded that she had not properly assessed or relied upon the broader relevant planning framework and not sought to review the competing expert planning or design evidence called by the Applicant. For these reasons, we consider that Dr Stanley was taking a narrow approach to her assessment of the combined proposal, which is of very limited assistance for our purposes.

Impacts and interrelationship with the existing Preston Market

1. Both the resident objectors (to the extent they have standing to object to the Stage 1C works) and Council emphasised the long-running and important 'community and cultural' role of Preston Market in Darebin. Ms Sharp showed us a short video presentation, interviewing traders and patrons at the Preston Market, where they voice how much they value and enjoy working and/or shopping at Preston Market. This is in the situation where we are told that Preston Market has operated on this land since 1970.
2. With any underlining being from the quote itself, similarly at [3], [8] and [9] of its written submission Council stated that:
   1. The Preston Market is a significant site. It is the "Jewel in the Crown" of the City of Darebin. This is only one Preston Market in the City of Darebin and Melbourne. The Market has been, and will continue to be, a very important community meeting place as well as a place to buy and sell goods. The Market is a place where people from many different social, cultural and religious backgrounds interact. Indeed, personal relationships have developed between customers and stallholders over decades. And the Market has always enjoyed a distinct community atmosphere where people from all over the world can meet. In this sense, the Market is arguably one of the City of Darebin's most important community-building institutions.

1. The community, stallholders and indeed the Council value the Market for its honesty, lack of pretension and old-world charm. The Market plays a very important role in the lives of not just the stallholders but also of its customers and the community. A key reason for this is that many migrants prefer shopping in the Market due to its social and multicultural atmosphere and cheap prices. Many older migrants regard their trip to the Market as a social one. Moreover, being a marketplace, the Market is foremost a pedestrian environment where shoppers walk between stalls or sit to socialise.
2. The epicentre of the Market is its substantial fresh food market. It is the lifeblood of the Market. The fresh food market is the Market. It is highly valued in the community for its extensive array of fresh produce that can cater for almost all of a shopper's cooking requirements.
3. The Tribunal acknowledges and respects that the indications are that many traders and patrons of the Preston Market highly value its distinctively rich social and multi-cultural heritage and flavour. We expect that even the Applicant would agree that for many people the Preston Market has been and remains an important community meeting place, a source of valued relationships and a vibrant wide mixture of different cultural backgrounds.
4. On the one hand, it is very appropriate that the Tribunal take these 'social and cultural' aspects of the Preston Market setting into account. The Tribunal takes the point that what is at stake is not just a physical setting but the emotional and community links that many traders and patrons feel with the Preston Market.
5. On the other hand, for the following reasons, we are satisfied that the proposal will have no significant adverse impacts on these valued social, community and cultural aspects of Preston Market.
6. From our site inspections and the submissions made to us, there is little doubt that the most valued area of Preston Market is its central area which features the mostly fresh food stalls.
7. In walking around the broader Market Site, some aspects like the Centrelink office, the at-grade car parking and the Aldi supermarket have a very generic 'you could be anywhere' appearance and feel to them. None of the submissions made to us at the hearing about the cultural, social and/or community issues at stake mentioned these more peripheral aspects of the broader site.
8. By contrast, if one walks into the centre of the whole site where the market is located, it is this area that is so lively, distinctive, very bustling and involving an offering of fresh fruits/meats/fish/ etc that is rare in the northern suburbs. It is full of character. It was this central area that mainly featured in the video shown to us and which was being highlighted. The critical role of this central area is reinforced by the statement by Council in the last quoted paragraph above that "The fresh food market is the Market".
9. It needs to be said that the physical works involved in Stages 1B and 1C essentially involve the redevelopment of what is currently at-grade bitumen car parking in the north-western corner of the whole site. Essentially none of the proposed buildings and works will physically impact on the highly-valued central area of the whole site where the existing market operates. It seems reasonable to assume that these aforementioned strong cultural, social and community ties do not arise from such more peripheral at-grade bitumen parking areas.
10. In summary then, whilst we do not query that the concerns about 'adverse social, cultural and community impacts of the proposal' are genuinely held, we consider them to be based on a misapprehension that the existing market will be undermined or irretrievably impacted by the proposed development.
11. The important role of the central area of the whole site and the need to preserve same was reinforced by the fact that the recently gazetted Amendment C160, which imposes the mandatory 9 metre height limit, only applies to this central area of the site where the existing market operates. For our purposes here, it is telling that the Planning Minister chose not to include the broader Preston Market site in Amendment C160. The proposal is quite consistent with Amendment C160 because nearly all of the proposal is located outside of this central area affected by this Amendment.
12. Our main findings here are reinforced by the following additional points:
    • We consider that the proposal will improve the current pedestrian entrances into the existing market. The proposal will create the new north-south laneway between the Loft and Station Buildings, a new east-west laneway from Junction Place towards the railway station and the upgrading of Cook Street which extends east from Junction Place. We accept that these areas will be much activated, be of a suitable width, have the benefit of new landscaping and street furniture as applicable, and we expect they will be very functional. These benefits should all be very positive for the operation of the existing market.
    • If approved, the three new buildings will bring a new group of 'captive' on-site residents, whom we expect will be new users of the central market area. There seems a real prospect that these new users will also come from a wide range of cultural backgrounds. If so, this will add to the richness of the community experience at Preston Market.
    • Having new residents living on site can be expected to create additional business for many of the traders at Preston Market and in turn bolster their viability or profitability (as applicable). This extra source of trade may, for example, make it more feasible for Preston Market to start trading on additional day(s) of the week, beyond its current pattern of trading days.
    • We are conscious that the most common form of local housing in this locality is single detached three bedroom houses on larger lots. Realestate.com estimates the current average price for such a house in Preston to be $966,000. By their more compact nature, apartments typically having a significantly lower price point than such single detached dwellings on larger lots. In this context, it would be unsurprising if young adults who wish to live in this area struggle to be able to afford a $966,000 detached three bedroom house, but might find an apartment in one of the Station, Laneway or Loft Buildings convenient and much more affordable. If we are aiming to continue to have a good mix of local residents using the Preston Market as part of the valued social/community experience of the market, it would be very unfortunate if young adults are effectively 'priced out' of being able to buy some form of housing within walking distance of the Preston Market.
    • The passive surveillance of the relevant car park area provided by the new apartments in the towers will we expect improve the feeling of security for market patrons parking on-site.
13. We otherwise rely on our earlier discussion about how the Tribunal is required to carry out its decision making process having regard to the whole of the relevant planning framework in an integrated manner, rather than emphasising one purpose or objective above others. In this discussion above, we have explained why any submissions or expert evidence whose main focus is simply on the retention and enhancement of the Preston Market is excessively narrow and carries little weight.
14. Where the resident objectors, Council and/or Dr Stanley urged us to find that the reduction of 99 publicly accessible on-site car parking spaces would automatically detract from the operation of the existing market, we regard this as an overly speculative and simplistic assertion. In such an exceptionally public transport-rich location, we see real weight to the Applicant's submission that patrons of the market should be capable of gradually transitioning to other more sustainable forms of public transport. Whilst agreeing that some patrons may buy large quantities of food or fruit which they wish to drive home, surely there must be a range of reasons why patrons visit the central market area and not all of these patrons necessarily wish to take a large load home.
15. Where the three proposed towers and podium will somewhat reduce the public views of what is currently the north-western corner of the existing market buildings, we see this as suitably counter-balanced by the fact that the combined proposal will improve the pedestrian connectivity into the central market area. Notably, there will be a new east-west laneway between the new Junction Place and Preston railway station.
16. Where Dr Stanley expressed concern about 'excessive wind impacts' or about new residential occupants of the three towers being uninterested in engaging with the central market area, we consider both of these points to be highly speculative and to lack credibility. We note that Dr Stanley did not hold herself out as an expert in the wind effects of large buildings.

Does the concept of providing an integrated mixed use development achieve the outcomes sought by the Incorporated Plan and relevant State and local policies?

Layout and built form (tower/podium, setbacks, architectural appearance)

1. It is Council's primary objection that the absence of a defined tower/podium typology and the overall height of the Station Buildings at 14 storeys, together with the lack of upper level setbacks of all three buildings will result in built form that is dominating and overbearing. The Council also has a related concern about the impact of built form on the Junction Plaza and laneways in terms of overshadowing and creating a canyon effect.
2. We do not agree with those submissions or those made by other parties concerning adverse built form and amenity impacts on the existing market. We have previously described the proposal in some detail and provided a bird's eye view of the overall layout and different stages. The following northern elevation provides a visual representation of the three buildings including height, separation distances, articulation and design detail.

1. Whilst we understand that Council seeks a more traditional tower/podium typology, with a clear demarcation between the street wall and upper levels created by a setback above the podium, we do not accept that upper level setbacks are necessary or required by the Incorporated Plan. Under the Built Form and Design principles (page 9), one of the principles is that the design and arrangement of development above the podium level is to be visually distinguishable from the podium through appropriate treatments, setbacks (eg 5m) or contrasting architectural form, materials and/or colours.
2. In principle, we agree with Mr Sheppard that in the case of the Station Building a distinct architectural treatment at the base of the proposal gives the visual impression of a four storey street wall to both Murray Road and the site's western interface. We therefore support the composition and use of materials and colours to distinguish the podium and upper levels and consider that it has been well managed for the Station Building and the lower podium between that building and the Laneway Building.
3. However, we are less convinced about the treatment of the Laneway Building and consider that the appearance of podium/tower typology breaks down despite the use of a long recessed balcony to match the podium to the west. Mr Sheppard describes it as a more subtle gesture. We consider it too subtle. Mr Sheppard was asked questions about this and, although he didn't suggest a change, he proffered that the balustrade could be changed to a different colour (perhaps black metal) and that such a change could be made by way of a permit condition.
4. We consider that altering the colour/materials of the balustrade to continue the visual effect to the west (as seen in the northern elevation above), would be an improvement in distinguishing the base from the upper levels. Subject to the change, we consider that the Station and Laneway Buildings and the intervening podium are an acceptable response to both the site context and the built form and design the principles set out in the Incorporated Plan. The changes will further enhance what we consider to be the interesting and architectural form of the buildings.
5. The Loft Building has adopted a different response given it is viewed in a different physical context to the other buildings. Not only is it set behind the Centrelink Building on Murray Road but is has a longer and more direct interface with the existing Preston Market. It occupies a narrow, constrained area of land but is situated on the north side of Cook Street so that it has the opportunity to provide an edge to the lower scale market buildings south of Cook Street. From the north in Murray Road, the existing Centrelink Building hides the lower parts of the Loft Building, and acts as a 'podium' when viewed from that direction. When viewed from Mary Street to the east, the use of different materials and colours creates a distinction between the street wall and the upper levels. Although the street wall is lower than along Murray Road, it responds to the lower heights of the Centrelink Building and the existing market buildings.
6. We consider this is an appropriate architectural response. In making these comments, we acknowledge that the articulation of the Loft Building is largely created by protruding balconies rather than setbacks to wall faces. In addition, the building façade is to be visually softened with landscaping. We consider this will provide for an attractive building that is in broad terms consistent with the built form and design principles in the Incorporated Plan. These include but are not limited to being contemporary in style, of interesting architectural form, providing upper level recesses and including balconies.
7. Although not a major point in contention, we record that the development includes retail spaces along Murray Road, Cook Street and the new laneways and that these will activate and enliven the pedestrian environment. Except for entrance lobbies, all residential use is above ground level as sought by the Incorporated Plan.
8. We lastly deal with the height of the Station Building, which at 14 storeys exceeds the preferred building height of a maximum of 10 storeys. Schedule 1 of the PDZ makes it clear that 10 storeys is discretionary. At approximately 46.5 metres it is 12 metres taller than the Laneway Building. Whilst the difference in height will be readily discernible, the intervening podium at four storeys in height will provide a physical and visual link between the two and, in our opinion, ameliorate any sense of visual dominance when viewed from the north and along Murray Road. We are also mindful that in the fullness of time, it is highly likely that land to the west, south and north of the Station Building will be redeveloped for taller buildings (perhaps only up to 10 storeys) and that the Station Building will be just one of many such taller structures.
9. We also record that the Priority Development Panel which considered the introduction of the PDZ and Preston Market Incorporated Plan 2007 supported specifying maximum heights but with a permit required to exceed these heights.[5] It is evident that the Priority Development Panel envisaged that buildings higher than the preferred heights could be contemplated. To suggest that a building exceeding 10 storeys was never contemplated is incorrect.
10. There is no question that the Planning Scheme is anticipating enormous change for the Preston Activity Centre and that the population pressures facing Melbourne and Darebin will reinforce and give greater weight to policies aimed at intensifying development on large sites such as the Preston Market. Although 14 storeys may seem a big step up from 10, we consider it broadly within the scope of the built form anticipated by the Incorporated Plan. We do not accept that the 10 storeys maximum referred to in the Incorporated Plan should be applied as if it were a mandatory limit. To do so would be to ignore the significant benefits of allowing an additional four levels of housing in this location.
11. We may well be wary of allowing additional height if there were identifiable adverse amenity impacts caused to the public realm or to private properties. However we are not persuaded there are any such unacceptable impacts caused by the additional four storeys, particularly on the existing Preston market. We therefore support the height of the Station Building and consider that it is generally in accordance with the Preston Market Incorporated Plan 2007.

1. In relation to the proposed new pedestrian laneways and the upgraded Cook Street, we are satisfied with their proposed width and overall design, and agree with the evidence of Messrs Biacsi and Mr Sheppard on this point.
2. We consider it is a major plus that there will be a new east-west laneway from Junction Place, providing much better pedestrian connectivity with Preston railway station to the west. Whilst recognising that these laneway areas are not huge and that some daylight penetration constraints exist, we consider that these new laneways and Cook Street will receive acceptable levels of daylight and that their limited width has some real benefits. We consider it is a fair point by the Applicant that much of the charm and attractive feel of the Melbourne CBD laneways is their fairly compact dimensions, even if this does inherently constrain the daylight penetration. The proposed laneways have an opportunity to replicate those attractive characteristics in a location well outside the CBD. Although of a different scale, they respond to but do not copy the walkways within the existing market.
3. We have previously made comment about the ground floor retail floor space along Murray Road, Cook Street and the internal laneways, and consider they will be activate and very pleasant areas to move through or pause, noting that they will involve some degree of new 'street furniture' and landscaping. We do not comment specifically about street furniture, verandahs and landscaping but are confident that resolution of these details as part of the endorsed plans process will result in a high quality and appealing public realm. We are also confident that what is proposed will result in a much improved pedestrian experience over what exists now on that part of the site to be occupied by Stages 1B and 1C.

1. Council and the resident objectors were critical that some aspects of the proposed internal layout of the new towers would afford poor internal amenity and/or liveability. It was also queried whether the 'environmentally sustainable development' or ESD credentials of the new buildings were adequate. Some examples of this type of 'internal amenity' query were:
   • Concerns that some apartments would have either pokey dimensions and/or clumsy floor layouts, or otherwise be south-facing.
   • That apartments may be exposed to excessive noise from nearby main roads or the train station.
   • Long internal corridors in some instances, with allegedly inadequate natural daylight and ventilation. The relevant balcony sizes were also queried.
   • Inconvenient locations for bicycle parking eg bikes in the Loft building needing to be parked in the lower ground level.
   • There lowest two residential levels of the Loft Building involving apartments with a south-only orientation, notwithstanding its 'Nightingale' design approach.
2. It was also queried whether the proposed new pedestrian laneways were wide enough and whether they might be too cluttered or dark.
3. In the course of the evidence of Mr Sheppard, and Mr Biacsi in particular, made some suggestions as to certain changes to the layout of the three towers to make design improvements which they opined would improve the internal amenity outcomes. With references to these changes, their expert evidence was that all three towers would involve an acceptable 'internal amenity' outcome.
4. The applicant's ESD witness was Mr Talacko. In essence, his evidence was that the Stage 1B and Stage 1C proposals would result in an acceptable ESD outcome. He emphasised that all three towers would need to be built to achieve a 'green star rating' of 5, which he considered to constitute 'Australian excellence'. In response to questions, he acknowledged that a higher NatHERS energy rating could be set for the Loft Building given its 'Nightingale' heritage (eg a rating of 7), which he saw as a 'real stretch' but achievable. However he considered such a NatHERS rating of 7 for the Loft Building to be unnecessary, on the basis that a green star rating of 5 for all three buildings was what he regarded as already a rigorous benchmark. He acknowledged that an external assessment could be done of the relevant certification but regarded the major cost[6] as excessive, where Council could do the same certification task on a much cheaper basis using their own ESD officer.
5. With respect to ESD issues, it was queried why the proposed Loft Building would not involve any 'affordable housing' aspect, green travel bonds or a 'car share' space. There was debate as to what 'green star rating' each of the three new towers should be required to be certified to have achieved, and whether such certification should be done in-house by Council or independently. In this regard, it was acknowledged that Council has its own 'green star certified' ESD officer who works 'four days a week' at Council.
6. Incorporating the various design improvements via new permit conditions suggested by Messrs Biacsi and Sheppard during the hearing, we accept their evidence that the new towers and laneways will offer a reasonable level of internal amenity.
7. The internal layout of the new towers does not need to be perfect but rather must be acceptable - we are satisfied that this test is met. With larger buildings, it is very common that at least a small number of apartments will be south-facing. Accordingly, it would be unreasonable and overly harsh to take the approach that no apartments can have a southern orientation. The more appropriate approach here seems to review whether the number of south-facing apartments has been at least minimised in a reasonable manner (which we accept is the case here).
8. Incorporating the further design changes recommended by Messrs Biacsi and Sheppard, we consider the layout, sizes, the corridor arrangements, balcony sizes and the degree of daylight penetration for the three towers to be reasonable. No light courts are proposed and there would be minimal reliance on 'borrowed light'. Where in a limited number of cases the level of apartment internal amenity (whilst reasonable) may be less than ideal, the occupants involved would also have the option of visiting/enjoying the market cafes etc at ground level. This situation might also indirectly make these apartments more affordable.
9. The new buildings would all have good access to communal areas being provided. The Station and Laneway Buildings include resident access to the basketball court on level 2, the rooftop communal garden, a lawn, the children's play area, the garden room and the north facing community room. With the Loft Building, there would be shared use of a roof-top dining area, rooftop cinema, greenhouse and communal laundry.
10. We consider that any 'noise' issues can be readily dealt with by a suitable permit condition requiring that this be reviewed. Obviously there are practical noise reduction options here including double-glazing.
11. We are satisfied that it would be an unreasonable to insist that all bicycle parking spaces for the Loft Building or the other two towers must be provided at ground level. We acknowledge that such ground level bicycle availability is favourable in locations such as The Commons building in Brunswick, which is located adjacent a major bike trail.
12. However, here the three new buildings are located in a busy activity centre, with the nearest major bike track being on St Georges Road rather than right next to the building. On this basis, we regard it as a fair compromise that the bicycle parking areas for all three towers, whilst on a different level, are at least fairly close to ground level. For example, with the Loft Building, the bicycle parking spaces are 'hoop' style on the lower ground level, where cyclists can use a separate exit door and then move their bike up a ramp to get to the outside ground level. We accept this is still a fairly convenient arrangement. As we acknowledged during the hearing, there is also a tension here in that 'good planning' in activity centres is usually promoting the ground level activation of these types of buildings with retail or hospitality type uses - having the ground level allocated simply for bicycle parking would undermine this 'activation' objective.
13. Where the two lowest residential levels of the Loft Building involve south-facing apartments, we find this acceptable in all the circumstances, provided that the most eastern apartment on each of these levels is modified to have an east-facing window as recommended by Mr Talacko. We agree with the Applicant that there are excessive design complications in trying to convert the layout of these lowest two levels to match the residential levels above.
14. In relation to the potential provision of a 'share car' as part of the overall project, we find credible Ms Dunstan's expert traffic engineering evidence that this is a possibility best left to 'the market'. That is, her evidence on this point was that because the use of share cars is very demand-driven, it is appropriate to let the relevant share car companies lead the way if they see a market opportunity here. She also commented that if a body corporate is required to manage a car share scheme, but in reality the level of demand for the share car is low, then this becomes an onerous responsibility for the body corporate, as it must still pay a minimum monthly fee to the share car company.
15. In relation to the expert evidence of Mr Talacko, we agree with his recommendation that all three towers must achieve a green star rating of 5, and that it is reasonable for Council to do the certification when it has its own 'green star certified' ESD officer working four days a week. We are satisfied that all three towers having a green star rating of 5 is a relatively rigorous ESD standard. We see weight in the Applicant's concern that having external certification involves a very high level of additional cost.
16. With respect to the Loft Building, we acknowledge that it might be described as a somewhat simplified version of the full-on 'Nightingale model' that was used for The Commons in Brunswick. However for our purposes, we are not persuaded that the absence of any overt ownership or price controls for the sale of the Loft Building apartments is problematic. Rather, the key point for our purposes is that the Loft Building shares some important ESD features with The Commons, such as the absence of any car parking within the building, generous bicycle parking arrangements, other cooling options for apartments rather than conventional air-conditioning, and communal facilities on the top level.

The locational advantages of the site for future residents

1. We find that the Preston Market site has some major locational advantages for the type of redevelopment now before us for assessment. The whole site is large at 4.6 hectares and it is relatively flat. It has no residential abuttals but is more in the nature of an 'island site'. There is no sensitive vegetation or heritage built form on the site.
2. From a transportation perspective, the site has the benefit of abutting a railway station and two main roads with local bus services. The Plenty Road tram is a walkable distance to the east. Clearly the site has exceptionally good public transport access. Whilst acknowledging that works have been occurring along St Georges Road, this road offers a bike path leading in towards the CBD.
3. Further to the south is Cramer Park and associated sporting facilities, plus the Cramer Hotel. A walkable distance on the opposite (western) side of St Georges Road is the HP Zwar Reserve, the Preston West Primary School, the Melbourne Polytechnic campus and the M Walker Playground. A short distance to the east or south is the Darebin City Council main office building, the Preston library and the Preston Police Station.
4. The future occupants of the proposed residential towers would have the ability (currently) Wednesday to Saturdays to enjoy the rich and vibrant range of food, hospitality and retail offerings 'right on their doorstep', including the larger Aldi and Centrelink services. These occupants could also use the Woolworths and service station located on the opposite (northern) side of Murray Road and various shops and cafes along High Street are an easy walk to the east.
5. These all represent significant benefits for future residents and should not be underestimated in assessing whether the proposed development should be supported.

1. One of the issues raised in submissions was the need to ensure that the mix of dwellings included affordable housing. It is vexed issue and during the hearing, Council's draft condition 18 was the subject of discussion as to whether it would achieve its purpose or be enforceable. In essence, the condition asks that not less 15% of all dwellings be provided on an affordable housing model. The condition also makes reference to owner selection criteria and a 10% discount based on the median market rate.
2. Whilst we acknowledge that the concept of providing affordable housing is laudable, and also consistent with planning policies, we consider there are significant hurdles to overcome in providing such housing using the model included in the draft condition. Apart from it being introduced in a piecemeal manner on an application by application basis, we have significant reservations about how and by whom it would be administered. Notably, we see real uncertainties in the selection criteria for future owners, determining median market values, issues about on-sale arrangements, and how to deal with changed personal circumstances of owners. There is also a question of what represents 'affordable'.
3. We agree with the Applicant that imposing such a requirement on a permit is akin to including a development contribution since it involves a quantifiable cost on the development. Sections 62(5) and 62(6) of the Planning and Environment Act 1987 set out the ways in which a contribution can be obtained in circumstances where an Applicant does not volunteer such a contribution.
4. We further observe that there appears to be no justification for how the 15% rate or the 10% discount to median dwelling value was determined. More relevantly for our purposes, we accept that the proposal to provide one, two and three bedroom dwellings adds to the diversity and supply of housing in this part of the municipality, which in itself helps to meet demand and, in theory, assist in making housing more affordable.

1. One of Council's amended grounds of refusal[7] common to both applications is the failure to provide adequate car parking and unreasonably eroding the on-site parking provision for the existing market. A related ground concerns failing to provide efficient access and movement through and around the site.
2. The existing and proposed car parking provision on the site presents a somewhat confusing picture.
3. It is Ms Dunstan's evidence that the development has a statutory requirement for 926 spaces based on the rates in Clause 52.06-5. These are set out in Table 5 of her evidence statement and includes car parking for existing uses such as the Preston Market, the supermarket and the Centrelink Office.
4. Currently there are 811 publicly available on-site car parking spaces on the site. Although the proposal increases the supply to 862 spaces, some of those are not publicly available so that the overall supply of such spaces falls by 99 to 711. It is Ms Dunstan's evidence that 711 publicly available spaces exceeds the total requirement for 606 such spaces which she has identified in Table 5 under the heading Commercial and Residential Visitor.
5. We do nor recite all the detailed analysis in her evidence statement, but we consider that there is no substantiated justification to require additional on-site parking. We acknowledge that the parking surveys undertaken during market days reveal very congested conditions, particularly during the middle of Friday and on Saturday mornings. Although we accept that the Preston Market site accommodates a proportion of non-market parking, it is nevertheless the case that reducing the supply of publicly available car spaces by 99 will at peak times be inadequate to meet demand.
6. Council and respondent objectors submit this is unacceptable and that there should be no reduction below the number already provided. They reject any suggestion that shoppers can utilise public transport, cycle or walk if parking is inadequate to meet peak demand.
7. Whilst we well understand the point being made by Council and respondent objectors, State planning policy is seeking to implement 20 minute neighbourhoods by, amongst other actions, facilitating increased housing in established areas and locating new housing in or close to activity centres that offer good access to jobs, services and transport. The aim is to give people the ability to meet most of their everyday needs within a 20 minute walk, cycle or local public transport trip of their home. The consequence is a reduced need to use motor vehicles. Whilst we accept that may not be of any comfort for Preston Market customers who live further than a 20 minute drive, walk or cycle distance away, planning policy is foreshadowing a very different future for how we travel around Melbourne in the decades to come.
8. Rather than providing more car parking, the need to address the growing problem of traffic congestion in a city expected to grow to approximately 8 million people by 2050 requires a radical rethink about travel, including rethinking the provision of parking which replicates what exists at present. It may be idealistic, but travel around Melbourne will be impossibly inconvenient if reliance on motor vehicles is not significantly reduced.
9. In Ronge v Moreland CC (Red Dot)[8] the Tribunal made the following observations about car parking and traffic, which are just as relevant here as to a residential development in Brunswick:

[62] We have already referred to what can only be described as the massive increase in Melbourne's population projected through until 2050. Our roads are already congested and will be unimaginably so if a 'business-as-usual' approach is accepted through until 2050. The stark reality is that the way people move around Melbourne will have to radically change, particularly in suburbs so well served by different modes of public transport and where cycling and walking are practical alternatives to car based travel.

[65] State and Local planning policies are already acknowledging the change that is required with Plan Melbourne 2017-2050 and State policies referring to 20-minute neighbourhoods. At the municipal level, Moreland has long been recognised as being at the forefront of encouraging less reliance on car based transport. For example, the Moreland Integrated Transport Strategy 2010 includes a key principle that walking and cycling are the preferred modes of transport.

[70] Although Ms Dunstan undertook a car parking demand assessment, as called for by Clause 52.06-6 when there is an intention to provide less car parking than that required by Clause 52.06-5, we found the whole discussion around car parking of marginal value given the strong policy imperatives about relying less on motor vehicles and more on public transport, walking and cycling. Census data from 2011 or 2016 is simply a snapshot in time, a base point, but we are not persuaded that such data should be given much weight in determining what number of car spaces should be provided in future, for dwellings with different bedroom numbers. Policy tells us the future must be different. We consider that oversupplying parking, whether or not to comply with Clause 52.06, has the real potential to undermine the encouragement being given to reduce car based travel in favour of public transport, walking and cycling.

1. We consider that the review site is ideally situated to assist, in a small way, in achieving these policies with the fresh food market, supermarkets, speciality shops and a wide range of services within easy walking distance of the proposed development.

1. There are a number of issues identified in submission which have been worthy of investigation but which we consider are relatively straightforward and not requiring extensive discussion. The following are our comments on each of these.

1. We acknowledge that much of the broader Preston Market site is affected by an SBO and that the Stage 1B and Stage 1C proposals must respond to it. However relying on the following points, we are satisfied that any flooding/drainage issues can be readily dealt with through appropriate follow up investigations and drainage works, through at least one appropriate permit condition.
2. In its written submission at the hearing, Council did not actively pursue any objection related to the SBO. In any case, the statutory body here with the specialist skills is not Council but Melbourne Water. Melbourne Water do not object to either Stage 1B or Stage 1C, subject to permit conditions. We consider it reasonable to give substantial weight to this 'no objection' position by Melbourne Water as the key statutory authority.
3. Although over the course of the hearing there was some on-going negotiations about the appropriate wording of the key draft permit condition regarding the ownership of the relevant drainage pipes and pits, we are satisfied that by the end of the hearing, this condition has been sufficiently resolved.

1. During the hearing the resident objectors queried certain aspects of the proposed 'waste management' arrangements eg the vertical alignment of the 'chutes' involved and whether there would be adequate basement space and/or adequate pick-ups of the collected waste.
2. By contrast, it was the evidence of Ms Dunstan that the relevant basement areas would have adequate clearances to be able to comfortably fit the necessary waste collection truck. She also gave evidence that she regarded the proposed basement areas laid out in such a way as to provide, possibly with some later fine-tuning, sufficient space for waste to be collected.
3. In terms of how waste would be collected in the basement areas and then periodically picked up by waste collection trucks, we find this evidence of Ms Dunstan convincing. We note her point that there is real flexibility in the size of a waste truck that might be involved and how often it might attend. Conditions on each permit allow the Council to further assess waste management.
4. Where the objector residents have queried the alignment of certain vertical waste chutes, we take their point but consider this to be a matter of 'design detail' that can be readily worked through at a later stage. We agree with the Applicant's comment during the hearing that a building permit would also be required and that these types of larger buildings typically involve a considerable level of 'design detail' being worked through at a later stage, if the overriding planning permission is granted. Following this approach, it is not the task of the planning decision maker to become involved in assessing the fine detail of the plans, which are properly dealt with at the building permit stage.

1. Council queried whether it would be a workable arrangement for trucks to get in and out of the proposed loading bay area in the north-western corner of the site. This would involve trucks coming in off Murray Road and then exiting via Cramer Street.
2. We are satisfied with the evidence of Ms Dunstan that the area set aside is acceptable and that the space allocated for truck movement will accommodate the necessary truck movements in and out of the loading bay area.
3. We note that both Mr Sheppard and Mr Biacsi accepted that it is appropriate that the western side of this north-west corner have a 'back of house' function such as deliveries, but they queried whether this area could be activated more and given a lift with its appearance. We share this view and are satisfied that if a permit issues, a suitable permit condition can put in place a process where this type of improvement can be built into the final plans put forward for endorsement.

The absence of any master plan for the whole site

1. During the hearing, there was from time to time references to a likely intent that the Applicant will over time wish to redevelop other at-grade car parking areas of the broader Preston Market. Certainly this possibility was not denied by either Mr Tweedie or Mr Walker at the hearing.
2. In this context, concerns were raised by the objector residents about the absence of any proper up-front 'master plan' for the future development of the whole Preston Market site. We were urged to find the absence of a master plan creates an unreasonable level of uncertainty about the form and implications of other parts of the whole site possibly being more intensively developed in the future. In response, the Applicant submitted that the Preston Market Incorporated Plan 2007 provides sufficient guidance and the absence of any master plan is of no consequence.
3. We find the Applicant's position on this issue more persuasive and we conclude that nothing of significance turns on the absence here of a master plan for the broader site. We agree with the Applicant that the relevant strategic planning framework already provides considerable guidance - notably the Preston Market Incorporated Plan 2007.
4. Whilst it is possible a formal master plan might have some benefits, it might also cause some additional complications and/or become dated. We consider it acceptable that this combined Stage 1B and Stage 1C proposal be assessed on its merits through these combined proceedings. Any future development on the broader Preston Market site can be assessed on its merits at the time.
5. Our position here is reinforced by the fact that Council did not pursue this issue as a concern, in its presentation to us at the hearing.

1. Our consideration of these two applications has required us to balance the very strong policy support for higher density, more intensive development on this large, centrally located site within a Major Activity Centre adjacent a train station on the Principal Public Transport Network, against submissions that the proposal is too tall (Station Building), does not provide a suitable interface to existing and proposed public spaces, and that it will seriously and perhaps irretrievably undermine the existing fresh food market.
2. We have also taken into consideration the changes introduced by Amendment VC139, including objectives in the Urban Design Guidelines for Victoria (2017) which are of relevance to these applications.
3. Although planning policies and other documents frequently ask for high quality urban design and architecture (sometimes even excellence or exemplary design), Clause 65 of the Planning Scheme seeks an acceptable outcome, not an ideal or perfect outcome. In addition, Clause 10.04 of the Planning Scheme requires us to:

...endeavour to integrate the range of 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. Although we acknowledge that there will be different opinions about what represents a net community benefit, we consider that on balance, there is such a benefit in approving the proposals.

Preston Market, Cramer & Mary Street PRESTON VIC 3072

Development of two (2) ten-storey buildings comprising 128 dwellings, the re-location of the existing Aldi supermarket, offices, retail tenancies, a food and drink premises, a reduction to the car parking requirements and alterations to the existing vehicle access to Murray Road in accordance with the endorsed plans.

1. Before the development starts, amended plans to the satisfaction of the Responsible Authority must be submitted to, and approved by, the Responsible Authority. The plans must be drawn to scale with dimensions and must be generally in accordance with the substituted amended plans (identified as: Job No. 150260, Drawing Nos. 1B-10 (Rev 3), 1B-30 - 1B-40 (Rev 3, 1B-41 (Rev 2), 1B-51 - 1B-52 (Rev 3), 1B-53 - 1B-54 (Rev 2), 1B-61- 1B-62 (Rev 3 , 1B-63 (Rev 2), 1B-81 and 1B-82 (Rev 2) dated 19.07.2017 prepared by NH Architecture and Job No: 1516, Drawing Nos. TP05-TP15 (Rev 3) dated 11.07.2017 prepared by Breathe Architecture) but modified to show:
   • (a) Changes shown in the corrected plans (identified as: Job No. 150260, Drawing Nos, 1B-30 - 1B-35 (Rev 4), 1B-51 - 1B-52 (Rev 4), and 1B-61 (Rev 4), dated 24.07.2017 prepared by NH Architecture.
   • (b) Setbacks of all built form from the lot boundaries dimensioned on the plans.
   • (c) All wall heights (above natural ground level) dimensioned on the elevations.
   • (d) All corridor widths dimensioned on the plans, and showing a corridor width of at least 1.6 metres, except adjacent to the lift doors where it is to be a minimum width of at least 1.8 metres.
   • (e) Levels provided for the building parapets.
   • (f) Details of the proposed treatment of the ground level façade along Station Avenue in the vicinity of the loading bay, back of house dock / office and car park entry so as to present as far as practicable, an attractive street edge that could include increased glazing to the dock / office, variations in materials and colours, public artwork or other graphic techniques as part of an integrated strategy.
   • (g) Sections and details (at 1:50 or 1:20 scale) showing the treatment and activation within Cook Street, Junction Place and the proposed western laneway (off Junction Place) and the proposed north-south laneway (between Murray Road and Junction Place).
   • (h) Details (at 1:50 or 1:20 scale) of the proposed void/entry to the Station Building off Murray Road to create an attractive, inviting, well-let and safe entry to the building.
   • (i) Details (at 1:50 or 1:20 scale) of the proposed void/entry to the Laneway Building off Murray Road to create an attractive, inviting, well-let and safe entry to the building.
   • (j) Relocation of the bicycle storage areas within the podium to the Station Building currently shown at Levels 1 and 2 in the vicinity of the corner of the Murray Road and Station Avenue (i.e. Temporary Access Road) to a convenient location elsewhere in the development and in their place, dwellings or commercial floor space being shown that activates the façade of the Station Building at these levels.
   • (k) Natural light and ventilation being provided to both ends of the internal corridor at Levels 2 to 9 of the Laneway Building.
   • (l) All dwellings being provided with an external terrace off a living area having a minimum depth of 2m.
   • (m) All east facing dwellings on the lower two levels of the Loft Building to be provided with a new east facing window.
   • (n) A revised treatment to the podium of the Laneway Building that faces Murray Road to more clearly distinguish the podium from the upper levels (i.e. Levels 4-9).
   • (o) The terrace to the proposed dwelling located in the south-east corner of the Laneway Building (at Level 3) to be repositioned so as to be accessible off the living area (i.e. similar to the Levels above).
   • (p) Sections and details (at 1:50 or 1:20 scale) showing the treatment between the podium terraces of the dwellings at Level 3 of the Laneway Building and the communal courtyard/community garden at this level.
   • (q) Details of the privacy screening proposed to manage overlooking between terraces belonging to dwellings that are within 9m of each other.
   • (r) Details on the treatment and operability of the loading bay along Station Avenue.
   • (s) The provision of pedestrian visibility splays in accordance with Clause 52.06-9to the vehicle access ramp to the basement car park and to the vehicle access ramp to the podium car park.
   • (t) All disabled car parking spaces designed in accordance with Clause 52.06-9 and AS2890.6:2006.
   • (u) All structural columns positioned in accordance with Clause 52.06 of the Darebin Planning Scheme to ensure the useability of the car parking spaces and access lanes.
   • (v) End of trip facilities for bicycle riders are to be provided to the satisfaction of the Responsible Authority.
   • (w) Confirm method of operation for windows to maximise ventilation.
   • (x) External vertical retractable shading devices to all west facing glazing and/or balconies, unless otherwise agreed by and to the satisfaction of the Responsible Authority.
   • (y) The roof top clothes drying area on the Loft Building redesigned to allow through ventilation to the satisfaction of the Responsible Authority
   • (z) Details of a continuous canopy along Murray Road extending between the Laneway building and the Station building retail tenancy facing Station Avenue, with the canopy over the public footpath is to be set back at least 0.75 metres from the kerb and to have a minimum clearance height of 3m above the level of the public footpath.
   • (aa) Any modifications in accordance with the amended Landscape Plan (Refer to Condition 5 of this Permit).
   • (bb) Any modifications in accordance with the amended Sustainable Management Plan (Refer to Condition 10 of this Permit).
   • (cc) Any modifications in accordance with the amended Acoustic Assessment (Refer to Condition 12 of this Permit).
   • (dd) Any modifications in accordance with the amended Waste Management Plan (Refer to Condition 14 of this Permit).
   • (ee) Any modifications in accordance with the car parking management plan (Refer to Condition 15 of this Permit).
   • (ff) Any modifications in accordance with the wind management plan (Refer to Condition 30 of this Permit).
   • (gg) Any modifications in accordance with the PTV requirements (Refer to Conditions 32 to 36 of this Permit).
   • (hh) Any modifications in accordance with the VicRoads requirements (Refer to Conditions 37 to 38 of this Permit).
   • (ii) Any modifications in accordance with the Melbourne Water requirements (Refer to Conditions 39 to 46 of this Permit).
   • (jj) The design of bicycle spaces to accord with Clause 52.34 or AS2890.3-2015 or to the satisfaction of the Responsible Authority.

When approved, the plans will be endorsed and form part of this Permit.

1. The development as shown on the endorsed plans must not be altered without the prior written consent of the Responsible Authority.
2. As part of the consultant team NH Architecture and Breathe Architecture or an experienced architect must be engaged to oversee the design intent and construction quality to ensure that the design and quality and the appearance of the approved building is maintained to the satisfaction of the Responsible Authority.
3. Prior to commencement of any works, including demolition, a construction management plan must be submitted to and approved by the Responsible Authority and then carried out to the satisfaction of the Responsible Authority. The plan must provide for or include details of access, management and disposal arrangements during construction; methods to manage stormwater runoff; details of building materials recycling; construction parking; and the operation of any continuing uses on the land.
4. Concurrent with the endorsement of the plans referred to in Condition 1 of this permit, an amended Landscape Plan to the satisfaction of the Responsible Authority must be submitted to, and approved by the Responsible Authority.

The Landscape Plan must be prepared by a suitably qualified person and generally in accordance with the Landscape Plan prepared by Aspect Studios (dated 7 April 2016 and labelled 'Preston Market Stage 1B Landscape Works') but modified to reflect the amended development referred to in Condition 1 of this Permit and to address the recommendations contained in the John Patrick statement of evidence (dated July 2017) as follows:

(a) Details of the soil depth and volumes of each of the planter box types incorporating rates of 0.6 cubic metres of irrigated soil per 1 sq. metre of tree canopy (planter soil depth no greater than 1.0m); and 1.0 cubic metre of irrigated soil per 10. sq. metres of climbing plants (planter soil depth no greater than 800mm); and any consequential change in planter sizes;

(b) Planter design for trees to address root anchor stability and resistance to wind throw;

(c) Location of the communal food garden so that access to light is maximised for effective plant growth;

(d) Location of trees to assist in the management of wind impacts identified in the wind management plan required by condition 31

(e) Commentary on the general water needs of the landscaping sufficient to show that the irrigation system is satisfactory.

The Landscape Plan is to be accompanied by a report prepared by a suitably qualified person that explains how the Landscape Plan has adequately addressed the above requirements to the satisfaction of the Responsible Authority.

When the Landscape Plan is approved, it will be endorsed and will then form part of this Permit.

1. As part of the consultant team Aspect Studios or an experienced landscape architect must be engaged to oversee the design intent and construction quality to ensure that the design and quality and the appearance of the approved Landscape Plan is maintained to the satisfaction of the Responsible Authority.
2. Landscaping as shown on the endorsed landscape plan must be carried out and completed to the satisfaction of the Responsible Authority prior to the occupation of the development.
3. Before the development starts, or at such later stage with the further written approval of the Responsible Authority, a Landscape Maintenance Plan (LMP) prepared by a landscape architect, is to be submitted to the Responsible Authority for approval. Once approved, the LMP must be implemented to the satisfaction of the Responsible Authority. This plan must relate to matters that include, but are not limited to:
   • (a) Duration and management of landscaping during the initial landscaping establishment phase, with such management undertaken under the supervision firm of landscape architects or person with equivalent expertise and experience, to the satisfaction of the Responsible Authority;
   • (b) Ongoing responsibility for the implementation of landscape maintenance works by the Owner's Corporation in all areas of common property to achieve a consistent standard of landscaping;
   • (c) A landscaping maintenance program including annual maintenance of the irrigation system.
4. Before the construction or carrying out of buildings and works (other than excavation or works required to satisfy the following requirements) either:
   • (a) A certificate of environmental audit must be issued for the land in accordance with Part IXD of the Environment Protection Act 1970, or
   • (b) An environmental auditor appointed under the Environment Protection Act 1970 must make a statement in accordance with Part IXD of that Act that the environmental conditions of the land are suitable for the use.

In the event that a statement is issued in accordance with Part IXD of the Environment Protection Act 1970, before the development is occupied all conditions of the Statement of Environmental Audit must be complied with.

Written confirmation of compliance with the conditions of the Statement of Environmental Audit must be provided by a suitably qualified environmental professional.

If the conditions of the Statement of Environmental Audit require ongoing maintenance or monitoring, before development is occupied the owner of the land must enter into an Agreement with the Responsible Authority under Section 173 of the Planning and Environment Act 1987 to the satisfaction of the Responsible Authority to the effect that all conditions of the Statement of Environmental Audit issued in respect of the land will be complied with. Written confirmation of compliance with the conditions of the Statement of Environmental Audit must be provided by a suitably qualified environmental professional.

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

1. Before the development starts, a Sustainable Management Plan (SMP) prepared by a suitably qualified professional, must be submitted to, and approved in writing by, the Responsible Authority.

The SMP must confirm that the following performance standards are met:

(a) Green Star Design & As Built (V1.1) 5 Star rating for both the Loft building and the Laneway building.

(b) 6.5 star average NatHERS rating for both the Loft Building and the Laneway Building.

(c) All apartments in the development to have a maximum NatHERS annual cooling load of 30MJ/m2.

(d) Compliance with the Urban Stormwater Best Practice Environmental Management Guidelines for the development.

(e) Provide the ability for at least 15% of carspaces to be retrofitted to accommodate the recharging of electric vehicles.

The following solar photovoltaic systems should be incorporated:

(f) Loft building: 12.6kW peak capacity

(g) Laneway building: 12.6kW peak capacity

1. Prior to the occupation of the development, a report from the author of the SMP, approved as part of this permit, or similarly qualified person or company, must be submitted to the Responsible Authority.

The report must be to the satisfaction of the Responsible Authority and must confirm that all measures specified in the SMP have been implemented in accordance with the approved SMP.

1. Before development starts, an amended Acoustic Assessment of the development, to the satisfaction of the Responsible Authority, must be submitted to the Responsible Authority. The assessment must be prepared by a suitably qualified acoustic engineer and generally in accordance with the Acoustic Assessment submitted with the application (prepared by Norman Disney & Young dated 21 April 2016) but modified to reflect the amended development referred to in Condition No. 1 of this Permit.

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

1. Prior to the occupation of the development, a report from the author of the Acoustic Assessment, approved pursuant to this permit, or similarly qualified person or company, must be submitted to the Responsible Authority. The report must be to the satisfaction of the Responsible Authority and must confirm that all measures specified in the Acoustic Assessment have been implemented in accordance with the approved Plan and noise and vibration complies with the requirements of the report.
2. Before the development starts, an amended Waste Management Plan (WMP), to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved the WMP will be endorsed to form part of the Permit.

The WMP must be generally in accordance with the WMP submitted with the application (prepared by prepared by Leigh Design Pty Ltd and dated 5 April 2016) but modified to reflect the amended development referred to in Condition No. 1 of this Permit.

All works must be undertaken in accordance with the recommendations contained in the endorsed WMP to the satisfaction of the Responsible Authority.

No alterations to the WMP may occur without the written consent of the Responsible Authority.

The waste storage/collection area must not be used for any other purpose and must be maintained in a clean and tidy condition, and free from offensive odour, to the satisfaction of the Responsible Authority.

1. Before the development starts, a Car Parking Management Plan (CPMP) prepared by a suitably qualified professional, must be submitted to, and approved in writing by, the Responsible Authority. The CPMP must include but not limited to the following information:
   • (a) a preamble setting out the background to the preparation of the document,
   • (b) a statement of the purposes of the plan;
   • (c) a statement of the overarching principles for car parking management;
   • (d) a list of actions, more specific car parking management actions whose implementation is specifically encouraged;
   • (e) details of car parking management arrangements for future stages of the market re-development;
   • (f) car sharing arrangements between various uses;
   • (g) management of car parking during construction;
   • (h) proposed traffic management and control works on site and on adjoining roads;
   • (i) details of how car parking and loading would be managed across all land in the Priority Development Zone Schedule 1 (Preston Market) throughout the development stages including any proposed parking restrictions, hours of operation and security arrangements where relevant;
   • (j) how the site will operate, including predicted peak demands, parking restrictions, hours of operation, security arrangements, any off-site parking requirements, etc during potential interim stages and during construction;
   • (k) the overall operation of the Preston Market car park;
   • (l) an assessment of car parking demand taken at the completion of each immediately prior stage of development or the application. The assessment is to enable car parking provision to be monitored as floor areas increase and patronage, travel patterns and the mix of uses change, with a view to minimising parking oversupply at any one stage of development
   • (m) regular review of the plan;
   • (n) reporting to Council,
   • (o) intervention by Council, and
   • (p) dispute resolution mechanisms.

When approved, the CPMP will be endorsed and form part of this Permit.

1. Before the development starts, the owner of the land must enter into an Agreement with the Responsible Authority under Section 173 of the Planning and Environment Act 1987 to the satisfaction of the Responsible Authority to the effect that:
   • (a) Not less than 680 car parking spaces are available for market shoppers within the Preston Market land (as shown bounded by a thick red line on page 17 of the Preston Market Incorporated Plan 2007) during the construction period of Stage 1B and Stage 1C; and
   • (b) Not less than 711 car parking spaces publicly accessible to all commercial uses and residential visitors within the Preston Market land following the completion of Stage 1B and Stage 1C.

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

1. Car parking spaces must be allocated in accordance with the following requirements:
   • (a) Commercial Uses / Residential Visitors - 177 spaces;
   • (b) Dwellings - 151 spaces with no car parking spaces to be allocated to any dwellings within the Loft building.
2. Before occupation of the development, areas set aside for the parking of vehicles and access lanes as shown on the endorsed plans must be:
   • (a) Constructed;
   • (b) Properly formed to such levels that they can be used in accordance with the plans;
   • (c) Surfaced with an all-weather sealcoat;
   • (d) Line marked and;
   • (e) Drained

Car spaces, access lanes and driveways shown on the endorsed plans must not be used for any other purpose.

1. Before the development is occupied, vehicular crossings must be constructed to align with approved driveways to the satisfaction of the Responsible Authority. All redundant crossing(s), crossing opening(s) or parts thereof must be removed and replaced with footpath, naturestrip and kerb and channel to the satisfaction of the Responsible Authority.
2. The loading and unloading of goods from vehicles must only be carried out on the subject land within the designated loading bay, as detailed on the endorsed plans, and must be conducted in a manner which does not cause any interference with the circulation and parking of vehicles on the land or on abutting streets.
3. Any modification to existing infrastructure and services within the road reservation (including, but not restricted to, electricity supply, telecommunications services, gas supply, water supply, sewerage services and stormwater drainage) necessary to provide the required access to the site, must be undertaken by the applicant/developer to the satisfaction of the relevant authority. All costs associated with any such modifications must be borne by the applicant/developer.
4. Floor levels shown on the endorsed plans must be confirmed. The confirmation of the ground floor level must take place no later than at the time of the inspection of the subfloor of the development required under the Building Act 1993 and the Building Regulations 2006.

This confirmation must be in the form of a report from a licensed land surveyor and must be submitted to the Responsible Authority no later than 7 days from the date of the sub-floor inspection. The upper floor levels must be confirmed before a Certificate of Occupancy is issued, by a report from a licensed land surveyor submitted to the Responsible Authority.

1. Only one (1) communal television antenna may be erected on each building. Individual antennae for individual dwellings/tenancies must not be erected.
2. All dwellings that share dividing walls and/or floors must be constructed to limit noise transmission in accordance with Part F(5) of the Building Code of Australia.
3. Before the dwellings are occupied, an automatic external lighting system capable of illuminating the shared entry to each building, access to each basement and car parking space and all pedestrian walkways must be provided on the land to the satisfaction of the Responsible Authority.

The external lighting must be designed, baffled and/or located to ensure that no loss of amenity is caused to adjoining and nearby land, to the satisfaction of the Responsible Authority.

1. The land must be drained to the satisfaction of the Responsible Authority.
2. With the exception of guttering, rainheads and downpipes, all pipes, fixtures, fittings and vents servicing any building on the land must be concealed in service ducts or otherwise hidden from view to the satisfaction of the Responsible Authority.
3. No plant, equipment, services or architectural features other than those shown on the endorsed plans are permitted above the roof level of the building/s without the prior written consent of the Responsible Authority.
4. Provision must be made on the land for letter boxes and receptacles for newspapers to the satisfaction of the Responsible Authority.
5. By no later than the date plans are submitted for endorsement under condition 1, a wind management plan must be submitted to and approved by the Responsible Authority. The wind management plan must identify how the development will ensure satisfactory wind conditions and identify measures that are required to ensure satisfactory wind conditions. For the purpose of this condition, satisfactory wind conditions are those that apply to the environmental wind criteria proposed in the document Preston Market Stage 1 Preston - Desktop Environmental Wind Assessment prepared by MEL Consultants and dated 8 April 2016.
6. Before the approved development commences, the easements E-1 and E-5 as shown on the Plan of Consolidation PC362132A must be varied, so as to be consistent with the approved development.

1. The proposed altered vehicle access at the southern end of Station Avenue and integration with the existing car park must be designed and constructed to the satisfaction of Vic Track, Metro Trains Melbourne (MTM) and Public Transport Victoria at the full cost to the permit holder.
2. The permit holder must take all reasonable steps to ensure the relocated vehicle access is communicated to the public and access is retained during construction with appropriate signposting to the satisfaction of Vic Track, MTM and Public Transport Victoria.
3. Access to VicTrack land during construction and for maintenance purposes after completion will require permission from Metro Trains Melbourne and Vic Track and will be subject to both organisation's site access procedures and conditions.
4. The permit holder must take all reasonable steps to ensure that disruption to bus operation along Murray Road is kept to a minimum during the construction of the development. Foreseen disruptions to bus operations and mitigation measures must be communicated to Public Transport Victoria fourteen days (14) prior.
5. The existing bus stop and associated infrastructure on Murray Road must not be altered without the prior consent of Public Transport Victoria. Any alterations including temporary works or damage during construction must be rectified to the satisfaction of Public Transport Victoria and at the cost of the permit holder

1. Before the development starts, amended plans and surveyed Functional Layout Plans must be submitted to and approved by the Roads Corporation. When approved by the Roads Corporation, the plans may be endorsed by the Responsible Authority and will then form part of the permit. The plans must be drawn to scale with dimensions and two copies must be provided. The plans must be generally in accordance with the plans (NH Architecture Ref: 150260) dated 18/04/2016 and annotated as but modified to show:

For the intersection of Murray Road and Mary Street must show:

(a) Approach and departure lane widths for the east approach of Murray Road at Mary Street (interim layout) to be a minimum of 3.0m.

(b) Eastbound right turn storage lane into Mary Street to provide adequate storage based on SIDRA analysis Ref#16M1366000 and dated 04 July 2016 and submitted to VicRoads on7 July 2016.

For the intersection (interim layout) of Murray Road and Station Avenue must show:

(c) Traffic island at Station Avenue entry prohibiting eastbound right turn in to Station Avenue.

(d) One way left-in only from Murray Road.

1. Before the use approved by this permit commences or before the buildings are occupied, the following roadworks on Murray Road must be completed at no cost to and to the satisfaction of the Roads Corporation:
   • (a) New signalised intersection at Mary Street and Murray Road.
   • (b) Traffic island at Station Avenue entrance on Murray Road.
   • (c) Removal of redundant pedestrian operated signals in front of Centrelink (251 Murray Road, Preston).
   • (d) Signage and line-marking as required.

1. Prior to the commencement of works, a plan demonstrating the alignment and tabulating the proposed pipes and pit sizes must be submitted to Melbourne Water for approval.
2. Floor levels must be set at least 300mm above the applicable 1% AEP flood level.
3. Prior to the endorsement of plans, a development plan must be provided demonstrating that freeboard has been achieved for Stage 1.b and Stage 1.c of the development for ground and basement floors.
4. Prior to the issue of an Occupancy Permit, a certified survey plan, showing finished floor levels (as constructed) reduced to the AHD, must be submitted to Melbourne Water to demonstrate that the floor levels have been constructed in accordance with Melbourne Water's requirements.
5. Prior to the endorsement of plans, a basement plan showing adequate freeboard protection to all openings and entrances (including apex) must be submitted for approval by Melbourne Water.
6. The internal laneway within Stage 1 (between Stage 1.b and Stage 1.c) of the development is part of the flood mitigation proposal and so must be free of obstruction within the flow path, including but not limited to doors, ramps, steps, etc.
7. Any modification to the drainage solution needs to be submitted to and approved by Melbourne Water.
8. Prior to the approval of the plan(s) required under conditions 39 - 45 above, suitable arrangements must be made to the satisfaction of Melbourne Water with regard to the location, ownership and on-going maintenance of the proposed pipes and pits.

1. This permit as it relates to development (buildings and works) 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.

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

Within twelve (12) months after the expiry date if the request relates to the completion of the development or a stage of the development.

Preston Market, Cramer & Mary Street PRESTON VIC 3072

Development of a ten storey building above a four storey podium (total of 14 storeys) comprising 155 dwellings and a reduction to the car parking requirements in accordance with the endorsed plans.

1. Before the development starts, amended plans to the satisfaction of the Responsible Authority must be submitted to, and approved by, the Responsible Authority. The plans must be drawn to scale with dimensions and must be generally in accordance with the substituted amended plans (identified as: Job No. 150260, Drawing Nos. 1C-34 - 1C-44 (Rev 3, 1C-46 (Rev 3), 1C-53 (Rev 3), 1C-54 (Rev 1), 1C-61 (Rev 3), and 1C-81 (Rev 2) ) dated 19.07.2017 prepared by NH Architecture but modified to show:
   • (a) Changes shown in the corrected plans (identified as: Job No. 150260, Drawing Nos. 1C-34-IC-44 (Rev 4), 1C-53 (Rev 4), and 1C-54 (Rev 2), dated 24.04.2017 prepared by NH Architecture.
   • (b) Setbacks of all built form from the lot boundaries dimensioned on the plans.
   • (c) All wall heights (above natural ground level) dimensioned on the elevations.
   • (d) All corridor widths dimensioned on the plans, and showing a corridor width of at least 1.6 metres, except adjacent to the lift doors where it is to be a minimum width of at least 1.8 metres.
   • (e) Levels provided for the building parapets.
   • (f) A break-out space off the western side of the internal corridor at Levels 3 to 12 that is at least 3m wide and provides for an outlook and natural ventilation.
   • (g) Natural light and ventilation being provided to both ends of the internal corridor at Levels 3 to 13.
   • (h) All dwellings being provided with an external terrace off a living area having a minimum depth of 2m;
   • (i) Sections and details (at 1:50 or 1:20 scale) showing the treatment between the podium terraces of the dwellings at Level 3 and the communal courtyard/community garden at this level.
   • (j) Details of the privacy screening proposed to manage overlooking between terraces belonging to dwellings that are within 9m of each other.
   • (k) Confirm method of operation for windows, to maximise ventilation.
   • (l) External vertical retractable shading devices to all west facing glazing and/or balconies, unless otherwise agreed by and to the satisfaction of the Responsible Authority.
   • (m) The canopy over the public footpath set back 0.75 metres from the kerb and to have a minimum clearance height of 3m above the level of the public footpath.
   • (n) Any modifications in accordance with the amended Landscape Plan (Refer to Condition 5 of this Permit).
   • (o) Any modifications in accordance with the amended Sustainable Management Plan (Refer to Condition 10 of this Permit).
   • (p) Any modifications in accordance with the amended Acoustic Assessment (Refer to Condition 12 of this Permit).
   • (q) Any modifications in accordance with the amended Waste Management Plan (Refer to Condition 14 of this Permit).
   • (r) Any modifications in accordance with the car parking management plan (Refer to Condition 15 of this Permit).
   • (s) Any modifications in accordance with the wind management plan (Refer to Condition 30 of this Permit).
   • (t) Any modifications in accordance with the PTV requirements (Refer to Conditions 31 to 35 of this Permit).
   • (u) Any modifications in accordance with the VicRoads requirements (Refer to Condition 36 to 37 of this Permit).
   • (v) Any modifications in accordance with the Melbourne Water requirements (Refer to Conditions 38 to 45 of this Permit).

When approved, the plans will be endorsed and form part of this Permit.

1. The development as shown on the endorsed plans must not be altered without the prior written consent of the Responsible Authority.
2. As part of the consultant team NH Architecture and Breathe Architecture or an experienced architect must be engaged to oversee the design intent and construction quality to ensure that the design and quality and the appearance of the approved building is maintained to the satisfaction of the Responsible Authority.
3. Prior to commencement of any works, including demolition, a construction management plan must be submitted to and approved by the Responsible Authority and then carried out to the satisfaction of the Responsible Authority. The plan must provide for or include details of access, management and disposal arrangements during construction; methods to manage stormwater runoff; details of building materials recycling; construction parking; and the operation of any continuing uses on the land.
4. Before the development starts, an amended Landscape Plan to the satisfaction of the Responsible Authority must be submitted to, and approved by the Responsible Authority.

The Landscape Plan must be prepared by a suitably qualified person and generally in accordance with the Landscape Plan prepared by Aspect Studios (dated 8 April 2016 and labelled "Preston Market Stage 1C Landscape Works) but modified to reflect the amended development referred to in Condition No. 1 of this Permit. and to address the recommendations contained in the John Patrick statement of evidence (dated July 2017) as follows:

(a) Details of the soil depth and volumes of each of the planter box types incorporating rates of 0.6 cubic metres of irrigated soil per 1 sq. metre of tree canopy (planter soil depth no greater than 1.0m); and 1.0 cubic metre of irrigated soil per 10. sq. metres of climbing plants (planter soil depth no greater than 800mm); and any consequential change in planter sizes;

(b) Commentary on the general water needs of the landscaping sufficient to show that the irrigation system is satisfactory.

The Landscape Plan is to be accompanied by a report prepared by a suitably qualified person that explains how the Landscape Plan has adequately addressed the above requirements to the satisfaction of the Responsible Authority.

When the Landscape Plan is approved, it will be endorsed and will then form part of this Permit.

1. As part of the consultant team Aspect Studios or an experienced landscape architect must be engaged to oversee the design intent and construction quality to ensure that the design and quality and the appearance of the approved Landscape Plan is maintained to the satisfaction of the Responsible Authority.
2. Landscaping as shown on the endorsed landscape plan must be carried out and completed to the satisfaction of the Responsible Authority prior to the occupation of the development.
3. Before the development starts, or at such later stage with the further written approval of the Responsible Authority, a Landscape Maintenance Plan (LMP) prepared by a landscape architect, is to be submitted to the Responsible Authority for approval. Once approved, the LMP must be implemented to the satisfaction of the Responsible Authority. This plan must relate to matters that include, but are not limited to:
   • (a) Duration and management of landscaping during the initial landscaping establishment phase, with such management undertaken under the supervision firm of landscape architects or person with equivalent expertise and experience, to the satisfaction of the Responsible Authority;
   • (b) Ongoing responsibility for the implementation of landscape maintenance works by the Owner's Corporation in all areas of common property to achieve a consistent standard of landscaping;
   • (c) A landscaping maintenance program including annual maintenance of the irrigation system.
4. Before the construction or carrying out of buildings and works (other than excavation or works required to satisfy the following requirements) either:
   • (a) A certificate of environmental audit must be issued for the land in accordance with Part IXD of the Environment Protection Act 1970, or
   • (b) An environmental auditor appointed under the Environment Protection Act 1970 must make a statement in accordance with Part IXD of that Act that the environmental conditions of the land are suitable for the use.

In the event that a statement is issued in accordance with Part IXD of the Environment Protection Act 1970, before the development is occupied all conditions of the Statement of Environmental Audit must be complied with.

Written confirmation of compliance with the conditions of the Statement of Environmental Audit must be provided by a suitably qualified environmental professional.

If the conditions of the Statement of Environmental Audit require ongoing maintenance or monitoring, before development is occupied the owner of the land must enter into an Agreement with the Responsible Authority under Section 173 of the Planning and Environment Act 1987 to the satisfaction of the Responsible Authority to the effect that all conditions of the Statement of Environmental Audit issued in respect of the land will be complied with. Written confirmation of compliance with the conditions of the Statement of Environmental Audit must be provided by a suitably qualified environmental professional.

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

1. Before the development starts, a Sustainable Management Plan (SMP) prepared by a suitably qualified professional, must be submitted to, and approved in writing by, the Responsible Authority.

The SMP must confirm that the following performance standards are met:

(a) Green Star Design & As Built (V1.1) 5 Star rating for the Station building

(b) 6.5 star average NatHERS rating

(c) All apartments in the development to have a maximum NatHERS annual cooling load of 30MJ/m2

(d) Compliance with the Urban Stormwater Best Practice Environmental Management Guidelines for the development

In addition, a solar photovoltaic system with a 21.6kW peak capacity should be installed on the roof of the Station building.

1. Prior to the occupation of the development, a report from the author of the SMP, approved as part of this permit, or similarly qualified person or company, must be submitted to the Responsible Authority.

The report must be to the satisfaction of the Responsible Authority and must confirm that all measures specified in the SMP have been implemented in accordance with the approved SMP.

1. Before development starts, an amended Acoustic Assessment of the development, to the satisfaction of the Responsible Authority, must be submitted to the Responsible Authority. The assessment must be prepared by a suitably qualified acoustic engineer and generally in accordance with the Acoustic Assessment submitted with the application (prepared by Norman Disney & Young dated 21 April 2016) but modified to reflect the amended development referred to in Condition No. 1 of this Permit.

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

1. Prior to the occupation of the development, a report from the author of the Acoustic Assessment, approved pursuant to this permit, or similarly qualified person or company, must be submitted to the Responsible Authority. The report must be to the satisfaction of the Responsible Authority and must confirm that all measures specified in the Acoustic Assessment have been implemented in accordance with the approved Plan and noise and vibration complies with the requirements of the report.
2. Before the development starts, an amended Waste Management Plan (WMP), to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved the WMP will be endorsed to form part of the Permit.

The WMP must be generally in accordance with the WMP submitted with the application (prepared by prepared by Leigh Design Pty Ltd and dated 5 April 2016) but modified to reflect the amended development referred to in Condition No. 1 of this Permit.

All works must be undertaken in accordance with the recommendations contained in the endorsed WMP to the satisfaction of the Responsible Authority.

No alterations to the WMP may occur without the written consent of the Responsible Authority.

The waste storage/collection area must not be used for any other purpose and must be maintained in a clean and tidy condition, and free from offensive odour, to the satisfaction of the Responsible Authority.

1. Before the development starts, a Car Parking Management Plan (CPMP) prepared by a suitably qualified professional, must be submitted to, and approved in writing by, the Responsible Authority. The CPMP must include but not limited to the following information:
   • (a) a preamble setting out the background to the preparation of the document,
   • (b) a statement of the purposes of the plan;
   • (c) a statement of the overarching principles for car parking management;
   • (d) a list of actions, more specific car parking management actions whose implementation is specifically encouraged;
   • (e) details of car parking management arrangements for future stages of the market re-development;
   • (f) car sharing arrangements between various uses;
   • (g) management of car parking during construction;
   • (h) proposed traffic management and control works on site and on adjoining roads;
   • (i) details of how car parking and loading would be managed across all land in the Priority Development Zone Schedule 1 (Preston Market) throughout the development stages including any proposed parking restrictions, hours of operation and security arrangements where relevant;
   • (j) how the site will operate, including predicted peak demands, parking restrictions, hours of operation, security arrangements, any off-site parking requirements, etc during potential interim stages and during construction;
   • (k) the overall operation of the Preston Market car park;
   • (l) an assessment of car parking demand taken at the completion of each immediately prior stage of development or the application. The assessment is to enable car parking provision to be monitored as floor areas increase and patronage, travel patterns and the mix of uses change, with a view to minimising parking oversupply at any one stage of development
   • (m) regular review of the plan;
   • (n) reporting to Council,
   • (o) intervention by Council, and
   • (p) dispute resolution mechanisms.

When approved, the CPMP will be endorsed and form part of this Permit.

1. Before the development starts, the owner of the land must enter into an Agreement with the Responsible Authority under Section 173 of the Planning and Environment Act 1987 to the satisfaction of the Responsible Authority to the effect that:
   • (a) Not less than 680 car parking spaces are available for market shoppers within the Preston Market land (as shown bounded by a thick red line on page 17 of the Preston Market Incorporated Plan 2007) during the construction period of Stage 1B and Stage 1C; and
   • (b) Not less than 711 car parking spaces are publicly accessible to all commercial uses and residential visitors within the Preston Market land following the completion of Stage 1B and Stage 1C.

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

1. Car parking spaces must be allocated in accordance with the following requirements:
   • (a) Commercial Uses / Residential Visitors - 177 spaces;
   • (b) Dwellings - 151 spaces with no car parking space to be allocated to dwellings within the Loft building.
2. Before occupation of the development, areas set aside for the parking of vehicles and access lanes as shown on the endorsed plans must be:
   • (a) Constructed;
   • (b) Properly formed to such levels that they can be used in accordance with the plans;
   • (c) Surfaced with an all-weather sealcoat;
   • (d) Line marked and;
   • (e) Drained

Car spaces, access lanes and driveways shown on the endorsed plans must not be used for any other purpose.

1. Before the development is occupied, vehicular crossings must be constructed to align with approved driveways to the satisfaction of the Responsible Authority. All redundant crossing(s), crossing opening(s) or parts thereof must be removed and replaced with footpath, naturestrip and kerb and channel to the satisfaction of the Responsible Authority.
2. The loading and unloading of goods from vehicles must only be carried out on the subject land within the designated loading bay, as detailed on the endorsed plans, and must be conducted in a manner which does not cause any interference with the circulation and parking of vehicles on the land or on abutting streets.
3. Any modification to existing infrastructure and services within the road reservation (including, but not restricted to, electricity supply, telecommunications services, gas supply, water supply, sewerage services and stormwater drainage) necessary to provide the required access to the site, must be undertaken by the applicant/developer to the satisfaction of the relevant authority. All costs associated with any such modifications must be borne by the applicant/developer.
4. Floor levels shown on the endorsed plans must be confirmed. The confirmation of the ground floor level must take place no later than at the time of the inspection of the subfloor of the development required under the Building Act 1993 and the Building Regulations 2006.

This confirmation must be in the form of a report from a licensed land surveyor and must be submitted to the Responsible Authority no later than 7 days from the date of the sub-floor inspection. The upper floor levels must be confirmed before a Certificate of Occupancy is issued, by a report from a licensed land surveyor submitted to the Responsible Authority.

1. Only one (1) communal television antenna may be erected on each building. Individual antennae for individual dwellings/tenancies must not be erected.
2. All dwellings that share dividing walls and/or floors must be constructed to limit noise transmission in accordance with Part F(5) of the Building Code of Australia.
3. Before the dwellings are occupied, an automatic external lighting system capable of illuminating the shared entry to each building, access to each basement and car parking space and all pedestrian walkways must be provided on the land to the satisfaction of the Responsible Authority.

The external lighting must be designed, baffled and/or located to ensure that no loss of amenity is caused to adjoining and nearby land, to the satisfaction of the Responsible Authority.

1. The land must be drained to the satisfaction of the Responsible Authority.
2. With the exception of guttering, rainheads and downpipes, all pipes, fixtures, fittings and vents servicing any building on the land must be concealed in service ducts or otherwise hidden from view to the satisfaction of the Responsible Authority.
3. No plant, equipment, services or architectural features other than those shown on the endorsed plans are permitted above the roof level of the building/s without the prior written consent of the Responsible Authority.
4. Provision must be made on the land for letter boxes and receptacles for newspapers to the satisfaction of the Responsible Authority.
5. By no later than the date plans are submitted for endorsement under condition 1, a wind management plan must be submitted to and approved by the Responsible Authority. The wind management plan must identify how the development will ensure satisfactory wind conditions and identify measures that are required to ensure satisfactory wind conditions. For the purpose of this condition, satisfactory wind conditions are those that apply to the environmental wind criteria proposed in the document Preston Market Stage 1 Preston - Desktop Environmental Wind Assessment prepared by MEL Consultants and dated 8 April 2016.

1. The proposed altered vehicle access at the southern end of Station Avenue and integration with the existing car park must be designed and constructed to the satisfaction of Vic Track, Metro Trains Melbourne (MTM) and Public Transport Victoria at the full cost to the permit holder.
2. The permit holder must take all reasonable steps to ensure the relocated vehicle access is communicated to the public and access is retained during construction with appropriate signposting to the satisfaction of Vic Track, MTM and Public Transport Victoria.
3. Access to VicTrack land during construction and for maintenance purposes after completion will require permission from Metro Trains Melbourne and Vic Track and will be subject to both organisation's site access procedures and conditions.
4. The permit holder must take all reasonable steps to ensure that disruption to bus operation along Murray Road is kept to a minimum during the construction of the development. Foreseen disruptions to bus operations and mitigation measures must be communicated to Public Transport Victoria fourteen days (14) prior.
5. The existing bus stop and associated infrastructure on Murray Road must not be altered without the prior consent of Public Transport Victoria. Any alterations including temporary works or damage during construction must be rectified to the satisfaction of Public Transport Victoria and at the cost of the permit holder

1. Before the development starts, amended plans and surveyed Functional Layout Plans must be submitted to and approved by the Roads Corporation. When approved by the Roads Corporation, the plans may be endorsed by the Responsible Authority and will then form part of the permit. The plans must be drawn to scale with dimensions and two copies must be provided. The plans must be generally in accordance with the plans (NH Architecture Ref: 150260) dated 18/04/2016 and annotated as but modified to show:

For the intersection of Murray Road and Mary Street must show:

(a) Approach and departure lane widths for the east approach of Murray Road at Mary Street (interim layout) to be a minimum of 3.0m.

(b) Eastbound right turn storage lane into Mary Street to provide adequate storage based on SIDRA analysis Ref#16M1366000 and dated 04 July 2016 and submitted to VicRoads on7 July 2016.

For the intersection (interim layout) of Murray Road and Station Avenue must show:

(c) Traffic island at Station Avenue entry prohibiting eastbound right turn in to Station Avenue.

(d) One way left-in only from Murray Road.

1. Before the use approved by this permit commences or before the buildings are occupied, the following roadworks on Murray Road must be completed at no cost to and to the satisfaction of the Roads Corporation:
   • (a) New signalised intersection at Mary Street and Murray Road.
   • (b) Traffic island at Station Avenue entrance on Murray Road.
   • (c) Removal of redundant pedestrian operated signals in front of Centrelink (251 Murray Road, Preston).
   • (d) Signage and line-marking as required.

1. Prior to the commencement of works, a plan demonstrating the alignment and tabulating the proposed pipes and pit sizes must be submitted to Melbourne Water for approval.
2. Floor levels must be set at least 300mm above the applicable 1% AEP flood level.
3. Prior to the endorsement of plans, a development plan must be provided demonstrating that freeboard has been achieved for Stage 1.b and Stage 1.c of the development for ground and basement floors.
4. Prior to the issue of an Occupancy Permit, a certified survey plan, showing finished floor levels (as constructed) reduced to the AHD, must be submitted to Melbourne Water to demonstrate that the floor levels have been constructed in accordance with Melbourne Water's requirements.
5. Prior to the endorsement of plans, a basement plan showing adequate freeboard protection to all openings and entrances (including apex) must be submitted for approval by Melbourne Water.
6. The internal laneway within Stage 1 (between Stage 1.b and Stage 1.c) of the development is part of the flood mitigation proposal and so must be free of obstruction within the flow path, including but not limited to doors, ramps, steps, etc.
7. Any modification to the drainage solution needs to be submitted to and approved by Melbourne Water.
8. Prior to the approval of the plan(s) required under conditions 38 to 44 above, suitable arrangements must be made to the satisfaction of Melbourne Water with regard to the location, ownership and on-going maintenance of the proposed pipes and pits.

1. This permit as it relates to development (buildings and works) 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.

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

Within twelve (12) months after the expiry date if the request relates to the completion of the development or a stage of the development.

[1] On 26 September 2017, Member Bennett was promoted to Senior Member. Although he did not preside during the hearing, section 65 of the Victorian Civil and Administrative Tribunal Act 1998 requires the Senior Member to preside. It becomes particularly relevant if opinions are divided between the Members constituting the Tribunal, but that has not occurred in this proceeding.

[2] There is a one space difference in material submitted to us. Ms Dunstan's evidence statement refers to 810 spaces. For convenience we have consistently referred to 810 spaces - the difference of one space makes no material difference to our assessment of parking provision.

[3] We have considered the submissions of all the parties that appeared, all the written and oral evidence, all the exhibits tendered by the parties, and all the statements of grounds filed. We do not recite or refer to all of the contents of those documents in these reasons.

[4] This 10 storey preferred height limit for this location is shown at the plan at page 17 of the 2007 Incorporated Plan.

[5] Advice of the Priority Development Panel Reference: PDP19, April 2007( Page 29)

[6] Mr Talacko indicated that for this type of major project, preparing for an external assessment would involve a cost in excess of $100,000.

[7] Amended grounds of refusal dated 13 June 2017.

[8] Ronge v Moreland CC (Red Dot) [2017] VCAT 550.