Mr Townshend SC and Mr O'Farrell called the following expert witnesses:

• Mr Mark Sheppard, urban designer
• Mr Jamie Govenlock, town planner
• Mr Roger Poole, project architect
• Ms Charmaine Dunstan, traffic engineer
• Mr Stephen Hunt, traffic engineer

Mr Paul Connor of counsel, appeared by direct brief

• Mr Craig Czarny, urban designer
• Mr Andrew Hutson, architect

Ms C Somerville of Norton Rose Fullbright appeared for Little Projects Pty Ltd.

A permit has previously been issued on this site for the construction of a 32 level residential tower above a 6 level podium[1]. The permit authorised a mix of residential, commercial and retail uses.

Amendments to that permit are now sought. The amendments proposed in the application retain the mix of uses including a strong retail presence at the Chapel Street and Toorak Road corner. The podium/tower form of the building is also retained albeit in a modified configuration. The location of the tower on the podium is modified, the number of levels within the building is increased, as is the number of dwellings. There is no increase in height. A change in the office and retail floor space and tenancy mix is proposed. Additional car parking is proposed.

Request under S.87A of the Planning and Environment Act 1987 for amendment of a permit.

Clause 34.01-1; A permit is required to use the land for dwellings as the ground floor frontage exceeds 2.0 metres.

Clause 34.01-4; a permit is required to construct a building or construct or carry out works.

Clause 43.01-1; a permit is required for demolition and to construct a building or construct or carry out works.

Clause 43.02-2; a permit is required to construct a building or construct or carry out works. The schedule to the overlay specifies preferred street wall heights and setbacks. A preferred maximum building height is not specified.

The review site is commonly known as the "Fun Factory" site, and is located on the north west corner of Chapel Street and Toorak Road, South Yarra. Almeida Crescent forms the site's northern boundary. The site has an area in excess of 5600 m2, and is a prominent site within the Principal Activity Centre (PAC).

The Capitol (Vic) Pty Ltd v Stonnington CC & Ors [2009] VCAT 1227.

E A H Batman Pty Ltd v Melbourne CC (includes Summary) (Red Dot) [2011] VCAT 1477

Bestway Group Pty Ltd v Monash CC (Red Dot) [2008] VCAT 860

1. This is an application to amend a permit (no. 600/08) issued at the direction of the Tribunal in July 2009. The permit allowed the demolition of existing buildings, and the use and development of the land for shops, offices, restaurants and dwellings. The approved building comprised two towers constructed over a podium, with basement car parking.
2. The application to amend the permit generally retains the mix of uses, and the podium/tower form of the building, albeit in a modified form. The principal changes are summarised below:
   • The northern tower increased from 38 storeys to 41 storeys, however the overall height of the building is unchanged from the approved scheme.
   • The use of the southern tower changed from office to residential, and basement retail uses have been deleted.
   • An internal courtyard introduced on the podium to the southern tower.
   • The lobby for the southern tower apartments relocated from the Upper Ground Level off Toorak Road to the Lower Ground Level with access via a 3.0 metre wide entry to Chapel Street.

• Increasing the separation between the towers by 0.89m.
• Extending the northern tower a further 5.2m to the south.
• Increasing the Southern tower setback a further 6.09m from the north.
• Increasing the setback of the northern tower from 13.4m to 23m to the Ilk development to the west.

• Deletion of the green roof to the southern building.

• Modifications to the car park design and parking provision.

1. The Council is opposed to the amendment application. In broad terms, the Council submits that the planning scheme provisions and the policies affecting the development of this site call for a building that achieves high levels of design excellence, and the creation of a building of "iconic" status. The Council submits that the building approved by the Tribunal in 2009 represents the achievement of that outcome. It asserts that that the current amended version is inferior to that previously approved, and that it does not achieve the standard of design excellence sought by the planning scheme for this site.
2. Whether the current proposal is inferior to the previously approved development is a matter of opinion and it is irrelevant. It is not our role to adjudicate over a debate about the design merits of one proposal over another. Our role is to determine whether the proposal that is now before us is acceptable having regard to the relevant planning scheme policies and provisions.
3. Having considered the submissions and the evidence, we have concluded that the proposal is acceptable because it is a building that achieves the requisite built form and land use outcomes that the planning scheme encourages for this important site.
4. Our reasons are set out below.

1. Planning Permit No. 0600/08 was issued at the direction of the Tribunal, following a five day hearing in May 2009. The proposal considered by the Tribunal at that time was described by the Tribunal in the following terms:

Use and development of the site for retailing (4,712 m2), offices (8,036m2) and 204 dwellings. The development has a 32 level residential tower over a six level podium, with a lower commercial office tower above retail and restaurant uses, and car parking. There are two basement car parking levels (137 car spaces) with internalised loading and bicycle parking. There are also an additional five car parking levels above ground (359 spaces). All access to car parking and on-site loading facilities would be from Almeida Crescent. Streetscape works and footpath widening are proposed to Toorak Road, Chapel Street and Almeida Crescent. The residential tower is to the northern part of the site with a curvilinear form to a height of 139.4AHD (including plant). The lower rise component to the south would be 103.1AHD.[3]

1. With respect to the physical context of the site, the Tribunal in the previous decision provided a detailed description of that context and an analysis of its influence on the design of the building it approved. We are content to adopt the Tribunal's description and analysis, while noting that since the decision, development within the PAC and the Forest Hill Precinct has continued in accordance with the applicable planning scheme provisions. Notably, a 24 storey residential tower known as the ILK building has been constructed abutting the review site to the west (227 Toorak Road). At the time of the Tribunal's 2009 decision, that site was occupied by an office building.
2. The Tribunal in the 2009 decision also set out in considerable detail the planning context for the site. Both parties in the current case agree that the planning context applicable in 2009 remains relevant today. It is not necessary for us to recite in any detail the relevant provisions of the zone, the overlays and the policy framework, and we are content to adopt the Tribunal's findings in the 2009 decision about those matters. In broad terms, the Tribunal found that the review site is a prominent site in the Forest Hills Precinct, an area that is planned for, and now experiencing, major renewal to create a new vibrant community.[4] With respect to the review site specifically, the Tribunal emphasised the landmark and gateway qualities expected by any development proposal for the site.[5]
3. DDO8 is the key planning scheme provision relating to development within the Forest Hill Precinct, and it is through this overlay that the built form outcomes encouraged for Forest Hill are most clearly expressed. DDO8 to a large extent constitutes a distillation of the relevant built form policies and objectives for the precinct.
4. The review site is one of the character areas in Forest Hill that receives specific attention in the DDO8. The preferred character for the site is:

A primary gateway to the Forrest Hill Precinct, and prominent site within the wider Prahran South Yarra Principal Activity Centre, with new development expected to act as an architectural landmark.

A prominent corner site, which must strengthen the legibility of the Toorak Road and Chapel Street intersection and reflect the significance of these streets as important access routes.

New development which complements the existing streetscapes of Toorak Road and Chapel Street, largely defined by the podium of the Como Centre and the height of the building on the south-west corner of Toorak Road / Chapel Street.

A large site with potential to make a significant contribution to urban consolidation

To reinforce the primary gateway significance of the Fun Factory site to the Forrest Hill Precinct and Prahran South Yarra Principal Activity Centre.

To ensure the upper levels are designed so as to reduce building mass and bulk and produce a sculptural and slender building outcome.

To provide retail uses and active frontages to revitalise the main street.

To avoid an overbearing presence on Toorak Road, Chapel Street and the Forrest Hill Precinct.

To ensure podium levels complement the existing streetscape of the Toorak Road/Chapel Street intersection and provide a consistent building edge (street wall) along the western side of Chapel Street.

1. Design standards that relate to street wall heights and building setbacks are included.
2. The Tribunal in the earlier application found that the building it approved was acceptable and met all the design objectives of DDO8 because:
   • The proposal would positively contribute toward the preferred character for the site, Forrest Hill Precinct and activity centre more broadly in its design, contribution to the public realm and gateway/landmark qualities.
   • The proposed development would be seen, as is the intended outcome, but would not be considered visually bulky because of the breadth and curvature of the main residential tower.
     • The design creates a distinctive and landmark built form outcome that distinguishes the site as a gateway while respecting the relationships with buildings on other corners of the Chapel Street/Toorak Road intersection, Como site and other interfaces.
     • The proposal emphasises the site as an important corner gateway consistent with local policy including through the podium form (as modified), active frontages and contribution to the public realm including planting.
     • The design has architectural quality and merit.
     • The shadow impacts on the public realm are within expected limits of change and wind impacts can be further assessed and resolved to an acceptable level through detailed design[6].
3. The Council submits that the amended proposal is inferior to the previously approved building and that it does not respond well to the design objectives of DDO8. The Council relied on the evidence of Mr Czarny and Mr Hutson in support of its submission. In broad terms, it is their evidence that several aspects of the approved building that contributed to its achievement of an "iconic" status have been lost in the amended application. It is their evidence that the "slender telescopic form" of the original has been lost. Consequently, it is their evidence that part of the justification for the height of the approved building no longer exists. The bulk and the mass of the tower has been increased beyond that which was originally approved, and in their view, this contributes to a building which has bulging corner elements in contrast to the receding effects of the approved elliptical shape. Mr Czarny described this effect as being like bulky, over scaled silos, and a building "pregnant with the increased yield". Mr Hutson described the amended proposal as an "essentially orthogonal tower with applied treatments".
4. While both witnesses acknowledged the design qualities of aspects of the amended proposal[7], it is their evidence that this is not a design that exhibits the care and finesse required to achieve the iconic, land mark qualities that the planning scheme calls for on this site.
5. The approach to be adopted by the Tribunal in the consideration of an application under S.87A has been the subject of several decisions of the Tribunal in recent years. In Bestway Group Pty Ltd v Monash CC[8], Deputy Gibson commented that it is important for the consideration of applications made under this section of the Act to address the substantive merits of the proposed changes. Deputy President Gibson observed that the reforms to the Planning and Environment Act 1987 by the introduction of Division 1A and section 87A enables amendment applications to be considered in a timely and efficient manner, by focussing on the proposed changes, rather than re-opening debate about the whole proposal[9]. More recently, Deputy President Gibson sitting with Members Naylor and Chase, considered an application under S.87A to amend plans for a development previously approved by the Tribunal. The nature of the amendments was reasonably significant. The Tribunal in that case relevantly commented as follows:

....This means that the amendments before us should be assessed on their own merits. We agree with Mr Townshend's submission that the exercise of our discretion must not become a 'beauty contest' between the Elenberg Fraser plans considered in the previous decision by the Tribunal and the proposal now before us (the amended plans). We also agree with Mr Townshend that the focus of planning decision-making generally is about achieving acceptable outcomes rather than best or better outcomes. Accordingly, our consideration of the amended plans is a consideration of the particular merits of those plans.[10]

1. We agree with and adopt the principles articulated in E A H Batman and Bestway. While the views of the expert witnesses about the relative merits of the two proposals provide some interesting insights into the differing opinions of experts on the relative architectural merits of the two proposals, they are not particularly relevant to our consideration of the proposal before us. As the Tribunal commented in E A H Batman, our role is not to act as judges in a beauty contest comparing the qualities of the originally approved proposal with those of the amended proposal. Our role is confined to a consideration of the merits of the amended plans.
2. It is relevant however that both Mr Hutson and Mr Czarny are of the view that the amended proposal does not achieve a design or built form outcome that is acceptable having regard to the design objectives of DDO8.
3. In this respect it is Mr Czarny's evidence that while the ground level presentation and the podium is an acceptable response to the design objectives of DDO8, the tower element is not. It is Mr Czarny's evidence that the tower does not produce a sculptural and slender building outcome, because the footprint is the same at the top as it is at the bottom. Consequently, there is no reduction in massing or significant change in architectural treatment. Mr Czarny is concerned that the building will assume a large, sheer mass and will have an overbearing presence on the Chapel Street streetscape. Mr Hutson is similarly concerned that while the building will provide a gateway status of sorts, by virtue of its height and scale, the lack of sculptural quality in the building would diminish its gateway status, because it would not be distinguished from other larger sale forms in the general vicinity.
4. There is no significant dispute in this case about what the planning scheme seeks to achieve in terms of built form outcomes for this site. It is an important site being located at the gateway to one of Melbourne's Principal Activity Centres and it is part of the Forest Hill Precinct, one of the city's major urban renewal precincts. It is a site that the planning scheme has identified as warranting a building that achieves more than just another acceptable outcome.
5. At the core of the dispute in this matter therefore, is whether the building represented in the amended plans achieves the requisite degree of design excellence to achieve the design objectives of the DDO8.
6. As the Tribunal commented in EAH Batman referred to above, planning decision-making generally is about achieving acceptable outcomes rather than best or better outcomes. In this respect, we do not need to be persuaded that the proposal we are considering is the best or optimal outcome for the site in order for us to be satisfied that it is an acceptable outcome. Neither are we judges in a contest between the previous scheme and the one before us. However, we make this observation in the knowledge that the planning scheme does call for a building on this site that exhibits design qualities that lift it above the ordinary. It follows therefore that any consideration of what constitutes an acceptable outcome is contextual in nature. That is, it must involve a consideration of the site's particular physical and strategic context. Factors such as the prominence of the site, the importance of the site in terms of achieving planning objectives for the PAC and for Forest Hill, the physical constraints of the site, as well as the planning scheme objectives for the site, are all relevant to the decision about whether a proposal is acceptable.
7. We are satisfied that the design of the complex, as amended, continues to display architectural quality and merit.
   • It will reinforce the site as a primary gateway to Forrest Hill Precinct.
   • It will strengthen the legibility of the Toorak Road and Chapel Street intersection. Indeed, the transformation of the southern building into a largely residential development will result in 24 hour activity around it, rather than one limited to business hours. The retail uses and active street frontage sought by the planning scheme remain and will assist in the revitalisation of the two streets.
   • The podium level, though differently configured, continues to complement the existing streetscapes of Toorak Road and Chapel Street. The increase in the length of the façade above podium level along Chapel Street, which is the result of the reconfiguration of the northern tower, alters but will not destroy the well resolved streetscape interface. The design proposed is one which will enhance both this part of Chapel Street and greatly improve the vehicular and pedestrian use of Almeida Street, and help 'knit' the development into the rest of Forrest Hill.
   • It makes a significant contribution to urban consolidation, providing a range of high quality apartments.
   • Whilst the amended tower design may not display the slender elegance of the former proposal, it remains a well considered and integrated whole. The revised form still has a sculptural outline and the increased setback from the ILK development to the west assists in differentiating the nothern tower from its neighbour, the increased spacing allowing it to be read as a singular element. It also improves the spatial relationship with the 'Vogue' tower on the east side of Chapel Street.
   • A high level of architectural quality is also displayed in the proposed materials and finishes, which seeks to subtly differentiate and emphasise the curved corners of the tower. We acknowledge that the materials may be subject to further design refinement, but the evidence of Mr Poole gave us confidence that the design team realises the importance of "getting it right".
   • We consider that the high level of internal amenity demonstrated by the orientation and configuration of the new apartments provides further evidence of the architectural merit of the proposal.
8. We conclude that the amended proposal is an acceptable outcome for the site, acknowledging that the context demands a quality outcome to mark and enhance this prominent and important intersection.

1. At the commencement of the hearing one of the objectors, Little Projects Pty Ltd, advised that subject to the inclusion of permit conditions it is content for a permit to issue. The permit applicant and the Council consent to the inclusion of the conditions. The conditions require very minor amendments to plans and we are therefore content to include them.
2. The applicant also seeks to amend other conditions in the permit. Some but not all of the amendments are related to the endorsement of the amended plans. The applicant circulated a set of the amended conditions and at the conclusion of the hearing we provided the Council and objectors with the opportunity to comment on them in writing after the hearing. The Council provided a written response and we have had regard to that response in preparing the conditions.
3. In broad terms the issues in dispute about the conditions relate to the possible staging of the development, and the off set of the cost of public works against any future public open space contribution that maybe required at subdivision.
4. We agree with the applicant that on a development of the scale proposed here, staging of the development is at least a realistic prospect. We have therefore included the applicant's proposed staging conditions which, subject to some minor rewording, also provide the Council with sufficient control to manage the implications of staging across the site. We note in this respect that the original permit is silent on the issue of staging. The applicant's proposed condition introduces a level of control over this issue currently lacking in the permit.
5. We have not included the condition requiring the cost of public works to be offset against a future public open space contribution. We are not persuaded that a sufficient nexus exists between the construction of works in the public domain required to be undertaken as part of the development of the land, and a public open space contribution required at the time of subdivision, to justify the inclusion of the condition sought by the applicant.
6. With respect to the provision of car parking, the Council accepts that the proposed provision is acceptable, with the exception that it requires visitor parking in accordance with the existing permit be retained. The applicant proposes to delete that requirement.
7. We are persuaded by the evidence of Ms Dunstan and Mr Hunt that the amended proposal is acceptable with respect to the provision of car parking (and other related matters) and the permit should be amended accordingly.

1. It follows from the above reasons that it is our conclusion that permit should be amended.
2. In deciding the amended conditions to be included on the permit we have had regard to the conditions provided to the Tribunal by the applicant and the submissions and evidence of the parties in addition to the matters which arise from our reasons.

241 & 257 Toorak Road and 625 Chapel Street, South Yarra

Demolition of the existing building, use and development of the land for shops, restaurants, offices, broadcasting and telecommunications equipment, and dwellings and associated car parking dispensation, altered access to a Category 1 Road and public realm works in accordance with the endorsed plans and subject to the following conditions.

1. Before the development starts, amended plans to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the plans will be endorsed and will then form part of the permit. The plans must be drawn to scale with dimensions and three copies provided generally in accordance with the Bates Smart plans dated 2013 substituted at VCAT proceeding P281/2013, including or modified to show:
   • (a) The canopy modified, or a new canopy element introduced, so that the clearance between the underside of the canopy and footpath level is an average of 7 metres as measured at the centre of the Toorak Road frontage. The canopy must project no less than 3.5 metres from the building façade.
   • (b) A schedule of materials and finishes as required by condition 1A.
   • (c) Any additional waste storage area as required by Condition 5.
   • (d) Any changes required as a result of recommendations made as a part of the wind assessment at Condition 7.
   • (e) The dimensions and layout of parking bays, access aisles, access gradients, sightlines and locations of columns such that they are generally in accordance with the Planning Scheme and Australian Standards or as otherwise approved by the Responsible Authority.

(f) Details of the location and finishes of security doors to the vehicle accessway into the loading/residential area car park. This treatment must be of a high quality and to the satisfaction of the Responsible Authority.

(g) Splay to the service room, convex mirrors or punched openings to the wall between loading areas as required to provide for adequate sightlines within the loading areas.

(h) The proposed staging of development;

(i) the podium wall on the western boundary of the land as a solid concrete wall;

(j) the notation on drawing 2.06 regarding screening to the west amended to state "1800 high perforated or slatted metal screen - 25% permeability - refer TP02.29";

(k) a notation on the western boundary of the southern building, at the northern bedrooms of levels 4-10 of "Void. No Balcony";

(l) a notation on drawing 5.05 (Section 5) of "Aluminium fins (nom. 75x300) fixed to façade at approx 1500mm centres to extent indicated on elevations, for levels 2 to 9 of the southern building";

(m) the notation on drawing 2.12 regarding acoustic screening to state "Acoustic treatment installed in accordance with a report prepared by a suitably qualified acoustic consultant to demonstrate compliance with relevant acoustic standards";

(n) the installation of bollard or low wall treatment (less than 1 metre height) in accordance with the "North West Corner Plan" dated 8 August 2013.

Before the development starts, a schedule of materials and finishes must be submitted for the approval of the Responsible Authority. The schedule must include adequate detail for comparison with the elevations. While acknowledging that the detailed design will further evolve, the schedule of materials and finishes must demonstrate how the development will achieve at least the degree of materiality as represented in the computer images prepared by Bates Smart and contained in the evidence statement of Ian Potter in VCAT Proceeding P281/2013. When approved, the schedule of materials and finishes will be endorsed and will then form part of the permit.

1. The development allowed by this permit and shown on the plans endorsed to accompany the permit shall not be amended for any reason without the consent of the Responsible Authority.
2. Any staging of the development is to be in accordance with a staging plan approved under this condition. A staging plan must show the following:

(a) Details of proposed staging;

(b) A requirement that the endorsed plans for that stage must show compliance with the conditions of the permit as appropriate to that stage;

(c) The timing for construction of public works in relation to that stage and/or the completion of the development;

1. Prior to the commencement of any buildings or works for a particular stage of the development, an Environmentally Sustainable Development Management Plan (ESD Management Plan) for that stage must be prepared by a suitably qualified person. The ESD Management Plan must be submitted to and approved by the Responsible Authority. The ESD Management Plan must address the following:
   • (a) Energy Management;
   • (b) Water Conservation and Re-use;
   • (c) Demolition and Construction Waste Management.
   • (d) Identify relevant statutory obligations, strategic or other documented sustainability targets or performance standards.
   • (e) Document the means by which the appropriate target or performance will be achieved.
   • (f) Identify responsibilities and a schedule for implementation, and ongoing management, maintenance and monitoring.
   • (g) Demonstrate that the design elements, technologies and operational practices that comprise the ESD management plan can be maintained over time.
2. Prior to the commencement of use for a particular stage of the development, a Green Travel Plan for that stage must be submitted to and approved by the Responsible Authority. When approved, the Green Travel plan will be endorsed to form part of the permit. The Green Travel Plan must include actions and recommendations designed to reduce the use of cars and increase the use of alternative travel methods to the satisfaction of the Responsible Authority. Parking demand, travel modes and mode splits must be monitored and assessed after 3 years of operation of the uses. Following this assessment, the Green Travel plan must be reviewed and any changes deemed necessary to ensure alternative travel methods are utilised must be made, to the satisfaction of the Responsible Authority.

1. Prior to the commencement of any buildings and works for a particular stage of the development a Waste Management Plan for that stage must be submitted to, and approved by the Responsible Authority. The Waste Management Plan must include details on how the waste will be undertaken so it has minimal impact on the amenity and the environment. Details to be provided in the Waste Management Plan must include, but not be limited to:
   • (a) How the building is to assist Council in achieving the waste reduction and diversion targets outlined in the State Government Strategy; 'Sustainability in Action: Toward Zero Waste'.
   • (b) That adequate storage space for waste bins has been provided.
   • (c) That adequate provision has been made for access to recycling facilities.
   • (d) The frequency of collection of waste.
   • (e) How the waste bin capacity is balanced against the collection frequency.

The Waste Management Plan must be approved by the Responsible Authority prior to commencement of construction of that stage and all waste storage and collection must be carried out in accordance with the approved Waste Management Plan.

1. Prior to commencement of use for a particular stage of development a Parking Management Plan for that stage is to be submitted to the satisfaction of the Responsible Authority and shall:

(a) Show how the 553 car spaces will be designated to the individual tenancies/dwellings.. Spaces are to be allocated as follows:

• (i) Maximum of 1 space per 1 bedroom unit.
• (ii) Not less than 1 space per 2 bedroom unit.

(iii) Not less than 26 spaces for the retail or office uses.

(b) Detail the signing and line marking of parking spaces;

(c) Detail where and how loading and unloading will occur;

(d) Detail any access controls to the parking area, such as boom gates which shall take into account the required queue length required as per section 3.4 of AS 2890.1.

8 Prior to the commencement of any buildings or works, a suitably qualified person must undertake a comprehensive wind tunnel test of the entire development and a Wind Climate Assessment Report must be provided for the written approval of the Responsible Authority. Any modifications required to the development in order to ensure acceptable wind conditions must be submitted to and approved by the Responsible Authority. The design details of any wind mitigation works must receive the endorsement of the owner(s) wind climate experts and preference should be afforded to the use of architectural features and planting.

1. Prior to the commencement of any buildings or works for a particular stage of the development, a Landscape Plan for that stage is to be prepared by a landscape architect or suitably qualified or experienced landscape designer and must be submitted to and approved by the Responsible Authority. When approved, the Landscape Plan will be endorsed and will then form part of the permit. The Landscape Plan must be drawn to scale and three copies must be provided. The Landscape Plan must be generally in accordance with the landscape streetscape concept plan prepared by Mark McWha landscape architect drawing no. 1555LC1 dated 20.06.2008 and show:
   • (a) Amended to provide consistency with plans endorsed under Condition 1;
   • (b) A planting schedule of all proposed trees, shrubs and ground covers, including botanical names, common names, pot sizes, sizes at maturity, and quantities of each plant;
   • (c) Landscaping and planting within all open areas of the site;
   • (d) Trees of a substantial size to be included within the design; and
   • (e) Landscaping scheme for podium level terrace.

1. The Conservation Analysis prepared by Michael Taylor (dated 22 April 2010) must be endorsed under this amended permit, and will form part of the permit.
2. Prior to the occupancy of the first stage of development, the permit holder is to provide details for a heritage display of the history of the site. The heritage display is to be submitted to and approved by the Responsible Authority.
3. The permit holder will, at the request of a broadcast transmission service provider, enter into a lease of such space on the roof of the northern tower as is necessary to replicate or relocate the television transmission facilities presently located at the Como Centre together with such internal space as is necessary to operate, maintain and service the facilities. The terms and conditions of the lease must be to the satisfaction of the Responsible Authority. The lease must upon execution by the parties be incorporated into an agreement under of the Section 173 of the Planning and Environment Act 1987, to be registered on the title of the northern tower. A request by the broadcast service provider under this condition must be made prior to, or within 30 days of, the commencement of buildings and works for the northern residential tower allowed by this permit.

1. Prior to the commencement of any buildings and works allowed by this permit for a particular stage (as relevant to that stage), the owner of the land in that stage must enter into an agreement with the Responsible Authority pursuant to Section 173 of the Planning and Environment Act 1987 to the satisfaction of the Responsible Authority and such agreement shall require that:
   • (a) The owner and/or developer must reach agreement with Council on a plan for the treatment of the public area abutting the site within Chapel Street, Toorak Road and Almeida Crescent. Once the plan has been agreed to the satisfaction of both parties, this plan will be endorsed and will then form part of the permit. The plan must provide comprehensive details of the public realm works and the works must be constructed at the cost of the owner / developer of each separate stage and under the supervision and to the satisfaction of the Responsible Authority prior to the commencement of the use allowed by this permit.
   • (b) The owner and or developer must carry out traffic management works in Almeida Crescent in accordance with detailed engineering construction plans prepared by the owner and or developer and approved by the Responsible Authority.

The owner and or developer of the particular stage must incur all the costs associated with these works and such works must be carried out prior to the commencement of the use allowed by this permit;

(c) The owner and/or developer of the particular stage must incur all costs associated with the construction of all infrastructure including footpaths, traffic management works and the paving materials and construction of the footpath adjacent to the site of the particular stage that must be to the satisfaction of the Responsible Authority;

(d) The payment of a supervision fee by the owner and/or developer of a particular stage where works in relation to that stage are supervised by the Responsible Authority.

(e) Identify the apportionment and responsibility for works and payments for any stage of the development.

(f) The cost of provision of the land and public works be set off against any future public open space requirement.

With the agreement of the Responsible Authority, the Section 173 Agreement may be removed from any title once the requirements within the Agreement for any part of the land) are satisfied.

A memorandum of the Agreement is to be entered on the relevant title and the cost of the preparation and execution of the Agreement and entry of the memorandum on title is to be paid by the owner.

1. The owner and or developer will prepare a plan of subdivision of the site in which those portions of the site:
   • (a) Forming part of the footpath along Toorak Road and Chapel Street and adjacent to the site (to a depth below the existing services to be agreed between the parties); and
   • (b) In Almeida Crescent to be used as a road (to a depth below the existing services to be agreed between the parties);

(as shown on the endorsed plans) are set aside as roads so that upon registration of such plan, those portions of the site will vest in the Responsible Authority as roads pursuant to Section 24(2)(b) of the Subdivision Act 1988.

1. Prior to the commencement of the use of the land for a particular restaurant, plans and schedules for that restaurant are to be submitted to the satisfaction of the Responsible Authority indicating the following:
   • (a) A plan showing the location of the tenancies within the building that are to be used for the purpose of a restaurant and the maximum seating capacity to be provided within each premises.

When approved, the plans and schedules shall be endorsed to form part of the permit. The location of the restaurants or the number of seats provided within each tenancy shall not be altered without the written permission of the Responsible Authority.

1. Prior to the commencement of any buildings and works for a particular stage of the development allowed by this permit the owner and/or developer must submit a Construction Management Plan for that stage to the satisfaction of the Responsible Authority. Once approved, the Construction Management Plan will be endorsed and will then form part of the permit. The Construction Management Plan must include details on how the construction will be undertaken so it has minimal impact on the environment. Details to be provided in the Construction Management Plan shall include, but are not limited to:

(a) Full work schedule/construction management plan for each individual stage to ascertain impacts on surrounding properties.

(b) Public/worker access and safety issues;

(c) Hours of construction activity (including at what stage "out of hours works" are proposed and what type of works are to be conducted outside the hours of operation;

(d) The location of hoardings, hoists and workers' amenities;

(e) The location of public precautions, loading zones, site sheds, materials, cranes and crane/hoisting zones, gantries and any other construction related items or equipment to be located in any street;

(f) Details as to how traffic and pedestrian safety and amenity will be controlled within the vicinity of the site and its surrounds;

(g) The provision of a traffic management plan, including detailed plans that show the areas required for and the nature of items to be placed on any street during all stages of construction in accordance with approval by the responsible Building Surveyor, entry and exit points for construction vehicles (including temporary and permanent vehicle crossings), traffic management during construction including road closures/road occupation/footpath closures, work zones/construction zones to accommodate vehicles and deliveries;

(h) Service connections/road and footpath openings and anticipated impact on public land during the connection of different services;

(i) Measures to be used to protect Council infrastructure from damage;

(j) Existing services and environmental management;

(k) A list of all environmental hazards that the activities on-site pose i.e.; contaminated soil, materials and waste, dust, stormwater contamination from run-off and wash-waters sediment from the site on roads, construction noise, hours of operation, vibration, washing of concrete trucks and other vehicles and machinery, spillage from refuelling cranes and other vehicles and machinery etc;

(l) Protection measures that will be undertaken to minimise the risk of the above hazards being realised;

(m) Regular monitoring/inspections of the above protection measures;

(n) Identification as to who will be responsible for managing all of the above issues; and

(o) Measures required for interim or temporary site management; including temporary site access; car parking provision; treatment and/or screening of vacant spaces;

All activities associated with the construction of the buildings and works hereby permitted must be carried out in accordance with the approved Construction Management Plan. The Construction Management Plan may be amended to the satisfaction of the responsible authority.

1. The emission of noise or any other emission to the environment derived from activities on the site must conform to standards contained in the appropriate State Environment Protection Policy or Policies.

1. All walls on or facing a boundary must be cleaned and finished to the satisfaction of the Responsible Authority prior to the approved development being occupied.
2. Any poles, service pits or other structures/features on the footpath required to be relocated to facilitate the development must be done at the cost of the owner and/or developer and subject to the relevant authority's consent.
3. All redundant existing crossings must be removed with footpath, kerb and channel reinstated at the permit holder's cost to the satisfaction of the Responsible Authority.
4. The vehicle crossings must be constructed to Council's standard vehicle crossing specifications to the satisfaction of the Responsible Authority.
5. All services to the site and buildings approved as part of this permit must be provided underground to the satisfaction of the Responsible Authority.
6. Before the use of a particular stage allowed by this permit starts or by such later date as is approved by the Responsible Authority in writing, the landscaping works for that stage as shown on the endorsed plans must be carried out to the satisfaction of the Responsible Authority. Landscaping must then be maintained to the satisfaction of the Responsible Authority, including that any dead, diseased or damaged plants are to be replaced.
7. Prior to the commencement of a particular stage of development a report for the legal point of discharge must be obtained from Council. A drainage design for that stage of the development must be prepared by a suitably qualified Engineer prior to a building permit being issued. The drainage must be constructed in accordance with the Engineer's design.
8. This Permit will expire if one of the following circumstances applies:
   • (a) The first stage of development is not commenced within five years of the date of the amendment to this Permit, or;
   • (b) The first stage of development is not completed within four years from commencement of the first stage;
   • (c) Subsequent stages of development are not completed within four years from the completion of the first stage of development;
   • (d) The use is not commenced within two years from the date of completion of the particular stage in which the use is located.

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.

1. The owner and/or developer for a particular stage must take all reasonable steps to ensure that disruption to tram operation along Chapel Street and Toorak Road is kept to a minimum during the construction of the development. Foreseen disruption to tram operation during construction of that stage and mitigation measures must be communicated to Yarra Trams and the Director of Public Transport fourteen days (14) prior.
2. The owner and/or developer for a particular stage must ensure that all track, tram overhead and supporting infrastructure is not damaged or that works do not cause unplanned disruption to tram operation during construction of that stage. Any damage to public transport infrastructure must be rectified to the satisfaction of the Director of Public Transport at the full cost to the owner and/or developer.

1. Prior to the commencement of the permitted development, a detailed functional layout drawing, generally in accordance with drawing TP02.03 revision D 0 Level 00 - Lower Ground Level Drawing prepared by Bates Smart, but modified to show the following must be submitted and approved by VicRoads:
   • (a) Functional layout of the vehicle access to Almeida Crescent from Chapel Street. The functional layout must include details of physical islands and associated line markings and signage.
   • (b) Keep Clear markings along the north bound direction at the intersection of Chapel Street and Almeida Crescent, for traffic entering Almeida Crescent.
   • (c) Swept path analysis of appropriate design vehicles entering and exiting the development from Chapel Street.
   • (d) The redundant crossovers on Chapel Street removed and the kerb, channel and footpath reinstated.
2. Prior to the commencement of use of the permitted development, works as shown on the approved functional layout drawing must be completed to the satisfaction of the Responsible Authority.
3. Written consent from VicRoads must be obtained for the works in, on, under or over the Chapel Street road reservation in accordance with Section 63 of the Road Management Act 2004.
4. The owner and/or developer for a particular stage must arrange for and pay for the full cost of road works, drainage, road safety devices, service relocations, civil works, public lighting, and any other associated costs relating to that stage of development hereby permitted ie. all works to be completed at no cost to VicRoads.

[1] The Capitol (Vic) Pty Ltd v Stonnington CC & Ors [2009] VCAT 1227.

[2] Following the gazettal of Planning Scheme amendment VC100, the land has been rezoned from Business 1 to Commercial 1.

[3] [2009] VCAT 1227.

[4] [2009] VCAT 1227, paragraph 11.

[5] [2009] VCAT 1227, paragraph 18

[6] [2009] VCAT 1227, paragraph 54.

[7] Mr Hutson considers the internal amenity of the dwellings to be acceptable, and acknowledges that the building would not imposes unreasonable shadowing of the public realm. Mr Czarny considered the proposal to be broadly in line with the parameters identified in the planning scheme for the Forest hill Precinct.

[8] Bestway Group Pty Ltd v Monash CC (Red Dot) [2008] VCAT 860

[9] [2008] VCAT 860, paragraph 19.

[10] E A H Batman Pty Ltd v Melbourne CC (includes Summary) (Red Dot) [2011] VCAT 1477