QPF Developments Pty Ltd v Yarra CC & Ors [2011] VCAT 1572

1. Leave granted to amend the application by substituting the plans prepared by David Watson Architects, TP.001-SP, TP.002B-SP, and TP.002-SP to TP.025-SP.
2. In permit application No. PL10/0966, a permit is granted and directed to be issued for the land at 58-72 Queens Parade, North Fitzroy, generally in accordance with the endorsed plans and on the conditions set out in Appendix A. This permit allows for the development of a five storey building for 46 dwellings plus two basements for parking.

Christopher Townshend SC and Peter O'Farrell, Barrister, instructed by Hunt & Hunt. They called the following expert witnesses to give evidence:

• Marco Negri, Town Planner, Contour Consultants
• Mark Sheppard, Urban Designer, David Lock Associates
• Chris Butler, Traffic Engineer, Cardno Grogan Richards

Adam May, Penelope Iddon, Desiree Harker, Alida Smith and Trevor Mckeown appeared in person.

Louise Hicks, Barrister, appeared on behalf of Peter Van Duyn and Marita Hogan.

Penelope Iddon also appeared on behalf of Valerie Johnson, and Desiree Harker on behalf of Trevor Harker

Five storey apartment building for 46 dwellings plus two basements for 37 car spaces and 49 bicycle spaces. 24 of the dwellings are single bedroom units with many of their bathrooms off the bedrooms. The other 22 dwellings provide two bedrooms. The sizes of the dwelling range from 44 to 72 sq m. Each dwelling is provided with a balcony ranging in size from 6 sq m to 47 sq m.

The proposal also seeks a reduction in the provision of car spaces pursuant to Clause 52.06. Vehicular access to the basements is from Napier Street.

Mixed Use Zone, Special Building and Environmental Audit Overlays.

Land to the north at No. 497 Napier Street is in the Residential 1 Zone. Queens Parade is in Road Zone Category 1.

Clauses 11, 15, 16, 18, 21.03, 21.04, 21.05, 21.06, 22.05, 22.10, 52.06, 52.34, 52.35, and 65.

Clauses 32.04-5, 44.05-1, 45.03-1 (requirement for a certificate of environmental audit or an environmental statement pursuant to Part IXD of the Environmental Protection Act), 52.06, and 52.34-1.

The site is on the northwest corner of Queens Parade and Napier Street, North Fitzroy. It is in a trapezoidal shape, with a frontage of 19.25 metres to Queens Parade, 27 metres frontage to Napier Street, and a site area of approximately 895 sq m. It is currently developed with a warehouse operating as a liquor outlet ("The Wine Liquidation Centre"). To the west on Queens Parade is a single storey commercial building apparently not occupied, and is part of a large parcel of land known as 26-56 Queens Parade.

To the north is a part three and part four storey residential development comprising of eight town houses at 497 Napier Street. To the east on the opposite side of Napier Street is a series of three storey townhouses with roof terraces. To the south and on the opposite side of Queens Parade are commercial and industrial developments. Queens Parade is a wide boulevard with trees planted in nature strips and medians.

1. The permit applicant seeks to redevelop the site for a five storey building plus basements for 46 dwellings. This is a review against Council's failure to grant a permit within the prescribed time. Were it in a position to determine the application, it would have issued a notice of decision to grant a permit subject to conditions. Proposed condition 1 requires modifications to the design, most of which are of a detailed nature except the one requiring the size and minimum dimensions for balconies increased to 8 sq m and minimum width of 1.6 metres.
2. As the permit applicant has lodged an application to review this failure to grant a permit, the Tribunal must decide whether to grant a permit, and if so, subject to what conditions. In doing so, it must give effect to the Yarra Planning Scheme ("the Scheme").
3. I record leave granted to amend the application by substituting the plans filed and served in accordance with the Tribunal's Practice Note.
4. I have reviewed submissions of the parties, examined expert witnesses' evidence, and inspected the site and surrounding area. I accept Council's overall analysis of the planning merits of the proposal and in general the opinion of Messrs Negri, Sheppard and Butler. With further fine tuning of the design, I am satisfied that the proposal is an appropriate response to the policy and physical contexts of the site.
5. The issues of this review are the scale of development, the particular design parameters and context of the site that facilitate the design outcome, car parking and vehicular access, and amenity impact on nearby dwellings.

1. Council supported the overall scale and building mass of the proposal. It submitted that the site enjoys a number of physical attributes: its size, orientation, corner location on a wide tree lined boulevard, abutting a strategic redevelopment site, and on an arterial. In policy terms, it is free of heritage controls, in proximity to two major and one neighbourhood activity centres, excellent public transport, excellent recreational links, and in an area where higher storey buildings have been either constructed, under construction or approved in Queens Parade. It submitted that the proposed height and scale are appropriate when viewed from Napier Street and Queens Parade, and that it achieves the design policies of Clauses 21.04, 21.05 and 22.10.
2. Conceding that the site is not a strategic redevelopment site nominated in the Scheme, Council submitted that the site has the attributes of one, citing a previous Tribunal decision[1] where the Tribunal found listed sites in the Scheme should not be regarded as exclusive.
3. The point that the site has not been identified as a strategic redevelopment site is the main argument of respondents. To them, residents in the area would gather from the Scheme that they should not expect a five storey building on the site because it has not been identified as one. They argued that designing reference for the development should be drawn from the low scale development in Napier and Coleman Streets which are affected by the Heritage Overlay.
4. I agree with the other Tribunal's view that the list in the Scheme for Strategic Redevelopment site should not be exclusive. I doubt whether it is possible to identify all strategic redevelopment sites in a municipality, as opportunities present itself from time to time with amalgamation of sites, sites becoming redundant due to particular economic circumstances, or a change in land use. For sites already identified as a strategic redevelopment sites, design parameters are clearer as the Scheme has already done work on the appropriate scale for them. For such sites, Clause 21.05-2 identified a height of no more than 5 to 6 storeys. For others, it is a matter of analysing the context and circumstances of the site.
5. The context of the site is an abuttal to a strategic redevelopment site, on a wide boulevard, abuttal to a part four storey residential development to the north, and a three storey (with roof pedestrian bulkhead visible from Napier Street) long built form on the opposite side of Napier Street. The height and building mass of the building should rest less on the premises that it is not in a strategic redevelopment site, but its context and the mixed use zoning of the land, and one that is not affected by a Heritage Overlay.
6. I am not persuaded by respondents' argument that the scale of development should be drawn from the single and double storey building scale in Napier Street or Coleman Street, or that the proposed five storey height and scale would detract from the heritage character of buildings in these streets. The review site is not affected by this overlay. It has no abuttal to a building of heritage significance. Abutting the site to the north is a part three and part four storey recent development in a Heritage Overlay. If a building has to have regard to heritage consideration, that should be the one. At the time of the approval of that development, a height of three and four storeys must have been considered acceptable against the predominantly single storey scale of buildings in Coleman and Napier Streets. This development is the southern tip of the heritage area on the west side of Napier Street.
7. To the east on the opposite side of Napier Street is a recent three storey residential development that stretched over an entire street block. That development has no heritage value but in a Heritage Overlay. Development further east in Queens Parade are recent apartment developments between three and five storeys.
8. The design parameters are not the single and two storey built form north in Napier and Coleman Street, but the three and four storey building to the north, other three storey to five storey buildings in Queens Parade. I now turn to the design response of the proposal to such a context.

1. Council's submission was that the design is an appropriate response to the broad area. To it, the land is part of a broader area along Queens Parade which is undergoing significant changes, with multi-storey development under construction or completed, apart from the site's abuttal to a strategic redevelopment site where local policy allows heights of 5 to 6 storeys. It cited another Tribunal decision[2] where the tribunal did not have a fundamental opposition to a five storey height for 142-146 Queens Parade, but that was a matter of the extent of demolition and the design's response to that particular context. That site is in a Heritage Overlay. Council accepted Mr. Negri and Mr. Sheppard's evidence that the height and scale of the development is an appropriate design response, apart from the fact that its Urban Designer also supported the original proposal which has been improved upon by the amended plans subject to further minor modifications.
2. Respondents' main concern was that the proposed height is not consistent with the heights of buildings in the area, referring to the single, double and three storey buildings in Napier Street. They argued that five storey building heights in Queens Parade, although present, is not prevalent, and tend to be on larger sites. To them, such a height would present a massive building bulk to the back of dwellings at 497 Napier Street. Another concern is the loss of a tree on the land (a Desert Ash) which is the same species of trees planted in Queens Parade.
3. Mr. Negri's analysis of the site is that it has the attributes of a strategic redevelopment site: close proximity to two major activity centres, to a neighbourhood activity centre, to a principle public transport network, to other medium and higher density residential development, as an interface with other higher density development sites including the part three and part four storey development at 497 Napier Street, and being one of the few sites not encumbered by a heritage overlay. It was his opinion that the site's abuttal to industrial and commercial buildings to the west offers an opportunity to accommodate higher density housing to respond to broad urban consolidation principles and to meet the purpose of the Mixed Use Zone that applies to the site.
4. Mr. Sheppard's evidence also addressed the scale and building mass of the development, and whether it is one that prejudices the equitable development of adjoining land to the west. Similar to Council, his review of development in the broader Queens Parade area is that it is undergoing substantial change. He has examined the Urban Design Framework for the North Fitzroy Gasworks Precinct for a site on the opposite side of Queens Parade in the vicinity, a document adopted by Council but has not been included in the Scheme. This document recommends a height of no more than 16 metres to Queens and Alexandra Parades with additional height set back. These measures are to protect the tree lined character of Queens Parade.
5. To him, the proposed height of 5 storeys responds to the merging and preferred future character of Queens Parade. Hr finds merits in the design approach of the building: a building mass broken into two elements with a three storey 'base' and a two storey 'top', with the top two floors recessed from the northern boundary creating a gradual transition to the built form of Napier Street. He supported the proposed range of setbacks in the building between zero and 2.4 metres, which he finds is consistent with the character of buildings in the area. He gave evidence that the development is well modulated by projecting and recessive elements, and well articulated by varied materials and finishes resulting in an attractive composition. He recommended that separate entries for the ground floor apartments and the balustrades to ground floor private open spaces be of obscure glazing.
6. I accept his analysis of the context of the site and the proposed building scale and massing as an appropriate transition from the industrial and commercial development and a strategic redevelopment site to the west for which a five to six storeys building scale can be expected. I agree with him that it is an appropriate transition to the north which is a part three and part four storey building which is a buffer to the lower scaled and fine grained Victorian cottages in Coleman and Napier Streets, noting that these properties are in a Heritage Overlay. I also accept his view that the proposed scale is an acceptable transition to the three storey plus stair bulkheads town houses to the east which is buffered by Napier Street. In view of substantial redevelopment in Queens Parade, I am satisfied that the proposed scale and massing do not detract from the tree lined ambience and character of this boulevard.

Interface with and off-site impact on adjoining and adjacent development

1. The buildings that have an interface with the development is the part three and part four storey residential development to the north at No. 497 Napier Street, and the commercial industrial building to the west at 52 Queens Parade. The interface with No. 497 Napier Street is the sensitive one.
2. The dwellings at No. 497 are multi-level dwellings with their living rooms orientated towards the north and secondary habitable rooms and non habitable rooms facing the review site.
3. The proposal involves a number of dwellings having a northern orientation and their private open space facing north. This is a logical design approach, although the ground and first floor units of the development will be south of an existing masonry wall in the site. The issue with residents of 497 Napier Street is the loss of outlook to the south and the visual bulk of a five storey building, staggered, when looking south.
4. Mr. Sheppard's view was that the site is in an inner urban location where development of five to six storeys is contemplated, and that it is unreasonable for adjoining residents to expect to maintain views over the site. In terms of overlooking, he notes that it is managed by privacy screens. He observed that the setback in the development is larger than those at No. 497 from the common boundary.
5. The proposal is for a building more than three storeys. The provisions and guidelines of Clause 55 do not apply. Instead, it is Guidelines for Higher Density Residential Development that does
6. For the City of Yarra, Clause 22.10 is the key assessment policy. In terms of off-site impact, this policy recommends the location, length and height of walls to a side or rear boundary not to adversely impact on the amenity of adjoining residential properties in terms of overshadowing of private open space, visual bulk or day light to habitable room windows. It is also policy that such walls be articulated, to avoid reflective materials, and screening if there is a window or balcony is within 9 metres of a window, balcony or terrace of an existing dwelling, similar Standard B22 of Clause 55.
7. I share Council's and Mr. Sheppard's view that the north elevation facing 497 is well articulated, and that residents at 497 cannot expect to maintain the existing view over the land because the site is 'under developed'. The proposal, by being on the south side of 497 does not cause overshadowing of dwellings in that development. Overlooking is managed by screening as recommended in Clause 22.10-3.8. I note that respondents prefer obscured glazing than perforated metal panels in privacy screens. The permit applicant accepts that as a design change. Overall, the extent of offsite impact meets the amenity impact recommendations of Clause 22.10-3.8.
8. The proposal would remove a commercial/industrial use from the land. A residential development is definitely compatible with the adjoining residential uses than the commercial activity conducted on the site. Domestic noise associated with a dwelling is consistent with the higher intensity residential development encouraged for a site in the Mixed use Zone. Excessive noise, if a problem, is dealt with by EPA policies.

1. As the development is over four storeys, the provisions of Clause 55 do not apply, but Clause 52.06 does. The rate for parking under this clause is 2 spaces per dwelling. Given the number of apartments in the proposal at 46, a total of 92 car spaces would be required. Only 37 are provided. Clause 52.06 makes provisions for waiving or reduction of car parking. Decision guidelines, as relevant are:
   • .......
   • The availability of car parking in the locality.
   • The availability of public transport in the locality.
   • ..........
   • ....
   • ...............
   • ..............
   • Local amenity including pedestrian amenity.
   • An empirical assessment of car parking demand.
   • Any other relevant consideration.
2. Respondents strongly opposed a reduction in the provision of parking. They urged the Tribunal not to accept Mr. Butler's evidence and not to override the requirements of Clause 52.06. Their observation of parking in the area was that there is a high demand for on-street spaces, and no dispensation should be given.
3. On paper, the proposal falls far short of the parking requirement of Clause 52.06: 37 provided when 92 are required. Nine dwellings (likely to be one-bedroom dwellings) will miss out on a car space. A careful reading of Clause 52.06 should reveal that reducing the number of car space is not overriding car parking requirement. Dispensation, waiving or reducing car spaces are part of the car parking consideration under this clause. It should be borne in mind that the parking rate in this clause applies Victoria wide, equally to a location that has poor access to public transport and to one similar to the review site which enjoys as excellent as it possibly can the availability of public transport in metropolitan Melbourne. It is also a rate for any size dwelling: a bed sitter or multiple bedrooms dwellings is subject to the same rate. To insist on a parking ratio of two spaces for a single bedroom dwelling is not to acknowledge the differences in circumstances.
4. To examine the extent of reduction of car parking, Council submitted that the proposed 37 car spaces are satisfactory. It has sought advice from its traffic engineer who raised no objection. It supported the reduction because:
   • The site has access to excellent public transport providing viable travel options for residents;
   • The site is close to essential services and conveniences including the Brunswick Street Activity centre and the Queens Parade commercial and shopping area;
   • Car parking is available on both sides of the service Road in Queens Parade;
   • There is strong policy support to reduce car dependence and promoting alternate transport options in Clauses 18.01, 18.02, and 21.06;

• Other Tribunals comments on reduction of car dependence[3]

1. It relied on Clause 21.06 as demonstrating this point:

Yarra meeds to reduce car parking dependence by promoting walking, cycling and public transport use as viable and preferably alternatives.

Parking availability is important for many people, however in Yarra unrestricted car use and parking is neither practical nor achievable. Cr parking will be managed to optimise tits use to encourage sustainable transport options.

1. Mr. Butler's statement of evidence contained an empirical survey of parking availability in the area and a review of traffic studies[4]. They point to a preference of deterring unlimited vehicular usage in inner area, and examples of recent developments approved in inner areas where not all dwellings are provided with car parking. He concluded that the proposal, together with the bicycle parking provided, provides adequate parking and would cater well for all modes of green travel. With regard to visitor parking, his opinion was that their demand tends to be in the evenings and weekends, a time when the pressure on on-street parking is low. He was satisfied that parking provided, car and bicycles, is appropriate.
2. Although respondents expressed little faith in Mr. Butler's report, the way to test his findings is cross-examination which occurred. This cross examination raised the issue of the data collecting agency for the parking survey being an unregistered business. The question is not whether the data collecting firm is a registered business but whether the data collected is a true reflection of the parking conditions at the time. There is no suggestion that the data collected was inaccurate.
3. With regard to the number of car spaces to be provided on site, I agree with Council that to require 92 car spaces for the development is unreasonable and not take into account the attributes of the site and say the site is comparable in parking characteristics to an outer area with poor public transport. Clause 55 recommends one car space per one and two bedroom dwelling and 1 visitor car space for five dwellings. I consider the parking rate of Clause 55 is an appropriate rate to use. On this rate, the proposal will be required to provide 46 for the dwellings and 9 for visitors, a total of 55.
4. If there is no policy indication that car dependence is to be discouraged, that unrestricted car use is not practical or achievable, and that it is Yarra's intention to promote and encourage sustainable transport option, I would place weight on the recommendation of Clause 55. The exception would be if a development caters for a sector of the housing market that is known to have less parking requirements, such as social or subsidised housing.
5. The type of housing in the development is on the compact side. The configuration of the one bedroom dwellings seems to suit a single or two persons household.
6. Given the availability of fixed rail public transport, proximity to activity centres and services, clear policy direction promoting alternative transport modes, and the provision of bicycle parking well above the recommendations of Clause 52.34-3, concession should be given to further reducing the number of on-site parking spaces. I note that under Clause 52.34-3, 9 bicycle spaces for the dwellings and 5 for visitors would be required. 49 have been provided.
7. To consider the proposed parking provision appropriate, I accept Council's traffic engineer and Mr. Butler's expertise.

1. Overall, I form the view that the proposal is worthy of support in the context of the site. On that basis, I endorse Council's decision to approve the development. I now turn to permit conditions.
2. Council's 'without prejudice' conditions suggested a number of design modifications, three of which were challenged by the permit applicant. These are:

(a) installation of an internal traffic signal system regulating movements into and out of the site;

(c) The provision of solar protection measures to all unprotected east facing glazing;

(h) All terraces to be a minimum of 8 sq m with a minimum width of 1.6 m without increasing the building envelope.

1. These conditions did not contain one requiring an Environmental Audit or certificate as the site is affected by the Environmental Audit overlay. Instead, it recommended compliance with this overlay as a note in the permit and in line with the Tribunal's ruling on the matter[5]. I note that permit conditions requested by Melbourne Water, the referral authority for the Special Building Overlay, have been included in the draft conditions.
2. Respondents suggested that a condition should be imposed to require 46 car spaces and a further setback of the northern elevation above the second floor. I decline to impose these conditions, as I am satisfied with the level of parking provided. As discussed earlier in these reasons, I have examined at length the relationship between the proposal and the development to the north that further setback of the northern elevation is not justified.
3. I return to the contested conditions. Condition 1(a) requires an internal traffic signal system to regular movements into and out of the site, a recommendation by Council's traffic engineer on the basis that the entrance is not able to provide simultaneous two way traffic movements into and out of the ramp. Mr. Butler gave evidence that such a signal system is not necessary, as there are sufficient sightlines and areas available for stopping at the top and bottom of the ramp, and that the movement of the roller door (opening and closing) is a reliable indication that there is an in-coming vehicle. I accept his opinion and this condition will not be imposed.
4. The second contested condition (c) is the provision of solar protection measures to all unprotected east facing glazing. I would agree with this condition if the windows are west facing. Morning sun from the east, I imagine, is welcome. I prefer the option by residents to have internal protection such as blinds to cut out sunlight and provide for privacy, if desired, than changes to the external fabric of the building.
5. The third contested change is (h) which requires all terraces and balconies to be at least 8 sq m and 1.6 metres in minimum dimensions without increasing the building envelope. These dimensions are consistent with the size of balconies in Standard B28 of Clause 55.5-4.
6. Mr. Townshend submitted that the apartments that cannot meet the 8 sq m are 16, 17, 27, 35, 36, 37, 38, 43, 44, 45 and 46, but all have a minimum of 6 sq m. He submitted that these sizes are practical, useable, functional, and supported by Mr. Negri. He also cited other Tribunal decisions[6] where the Tribunal was satisfied that a lesser area or a lesser dimension in those circumstances were satisfactory.
7. I have reviewed the sizes, minimum dimensions and configurations of the balconies of these apartments. Most of them are one bedroom apartments except Apartments 37 and 38 on the third floor and Apartments 45 and 46 on the fourth floor. All the apartments nominated as having less than 8 sq m have either all or part of the balconies in a minimum dimension of 2 metres. Such a width is useable and practical, and capable of accommodating outdoor furniture. I agree with those other Tribunals that a lesser area than 8 sq m and minimum dimension of 1.6 metres recommended in Standard B28 for compact one bedroom apartments can be satisfactory.
8. I, however, do not agree that a lesser area should apply to the two bedroom apartments. These apartments, 37, 38, 45 and 46 face south and Queens Parade. I agree with Council that they should achieve 8 sq m but not at the expense of the floor area of the apartments. These balconies can be brought closer to the street and over part of the front setback area to achieve the 8 sq m. The permit condition will be amended accordingly.
9. Mr. Sheppard's evidence recommended modifications to the entries of ground floor apartments so that they have individual access directly from the street, and the balustrades to ground floor private open space to be obscure glazing. I adopt these recommendations and will become permit conditions.
10. The last matter is the requirement of the Environmental Audit Overlay appearing as notes in the permit instead of permit condition. Council submitted that it used to impose the requirement as permit condition but has refrained from doing so since the Tribunal's ruling[7] on the matter. The review applicant prefers Council's approach of leaving it as a permit note. Ms. Hicks urged the Tribunal to impose it as a permit condition, on the strength that a permit condition is not just a mere duplication of what is required of the overlay but also an opportunity for further requirements on an-on-going basis, such as a Section 173 agreement. Otherwise, she suggested that the chance of enforcement outside a permit would be slim.
11. I have reviewed the Tribunal decision referred to by Council. That Tribunal was constituted of a legal member and the decision is a Red Dot decision. That review relates to permit conditions requiring either a Certificate of Environmental Audit or a Statement from an Environmental Auditor in accordance with the recommendations of the Environmental Audit overlay.
12. That decision was reached following further submissions of the parties on this particular matter and the Tribunal's detailed analysis of the efficacy of meeting the obligations of the overlay through permit conditions. It is not my expertise to analyse the legal argument, suffice to say that this decision has not been challenged. I adopt the findings of that review, which are:
    • The requirements of the EAO apply independently, whether or not any supplementary permit conditions are imposed;
    • Council already has the ability to take enforcement action under the independent operation of the EAO without or without any equivalent permit conditions in a permit; and

• There are potential problems associated with planning permit conditions imposing less rigours audit requirements compared to the EAO;

1. Under the circumstances, I accept Council's recommendation that the EAO requirement should appear as a permit note.

1. I find the height, scale, building mass and design an appropriate response to the policy and physical contexts of the site, one of the few sites that abuts a Strategic Redevelopment Site that is not in a Heritage Overlay. I agree with Council and experts called to give evidence that it is an appropriate fit to the emerging character of the area and one that does not detract from the boulevard qualities of Queens Parade.
2. Although the proposal does not provide one car space for each dwelling, there is policy support and traffic grounds for a reduction to the level provided.
3. Subject to the permit conditions stated in this order, I support Council's decision to approve the development.

Development of land at 58-72 Queens Parade, North Fitzroy for construction of a five-storey building comprising 46 dwellings, and 2 basement levels of car parking, and a reduction in the car parking requirements.

1. Before the development starts, amended plans to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the plans will be endorsed and will then form part of the permit. The plans must be drawn to scale with dimensions and three copies must be provided. The plans must be generally in accordance with the application plans TP.001-SP, TP002B-SP, TP002-SP to TP.025-SP, received on 09 June 2011 but modified to show:
   • (a) compliance with the requirements of Melbourne Water Condition 11 to 16;
   • (b) relocation of the four (4) external bicycle hoops to the footpath of Napier Street;
   • (c) an amended schedule of car parking allocation to reflect 37 car parking spaces;
   • (d) confirmation of all bedrooms having operable windows;
   • (e) the privacy screen to terraces fronting Queens Parade and Napier Street at ground floor to comprise a material more akin to front fences (i.e. timber or metal rod pickets) and of a maximum 1.7m high;
   • (f) all terraces of Apartments 37, 38, 45 and 47 to be a minimum of 8sqm, with a minimum width of 1.6m;
   • (g) a plan notation confirming material details of all privacy screens, confirming fixed screens on the north side to be opaque;
   • (h) deletion of the glass balustrade to Apartment 22 as shown on plan TP.006-SP;
   • (i) modifications to ground floor apartments to show separate entries from the street;
   • (j) balustrades to ground floor private open space be of obscure glazing;
   • (k) all ESD initiatives as outlined in the Sustainability Statement prepared by Ark Resources, dated 04 November 2010 to be notated on plans;
   • (l) confirmation of at least 6 cubic metres of storage facilities for each dwelling;
   • (m) the layout of the third floor of Townhouse 6 of the adjoining property to the north to be accurately shown on plans;
   • (n) an area set aside within the property boundaries for pits, meters, and essential services;
   • (o) a plan notation confirming the location of any plant equipment or machinery including hot water services, air conditioning units, heating units and pumps associated with the water tanks all of which must be concealed from public views and be acoustically baffled to the satisfaction of the Responsible Authority; and
   • (p) a full schedule of all external materials and finishes (including colour samples). The schedule must show the materials, colour and finish of all external walls, roof, fascias, window frames, glazing types, doors, fences, paving (including car park surfaces) etc. One set of coloured elevations must be submitted.

all to the satisfaction of the Responsible Authority.

1. All development must accord with the endorsed plans. Any alterations must be approved in writing by the Responsible Authority.
2. Floor levels shown on the endorsed plan(s) must not be altered or modified without written consent of the Responsible Authority.
3. All new on boundary walls will be cleaned and finished to the satisfaction of the Responsible Authority.

1. The new vehicle crossing and bicycle hoops on Napier Street must be constructed in accordance with the Responsible Authority's Standard Drawings and Specifications, and to the satisfaction of the Responsible Authority.
2. Any damage to road(s) and footpath(s) or other Council infrastructure as a result of the development must be reinstated to the satisfaction of the Responsible Authority.
3. The costs of all of road infrastructure reinstatements and rectification works associated with utility service provision and building works shall be borne by the developer.

1. Once completed, no fewer than 37 car parking spaces and 49 bicycle spaces must be provided on the land at all times, to the satisfaction of the Responsible Authority.
2. The area set aside for the parking of vehicles and bicycle, together with the associated access lanes as delineated on the endorsed plans must:
   • (a) be provided and completed to the satisfaction of the Responsible Authority prior to the commencement of the development hereby permitted;
   • (b) thereafter be maintained to the satisfaction of the Responsible Authority;
   • (c) be made available for such use at all times and not used for any other purpose;
   • (d) be properly formed to such levels that it can be used in accordance with the endorsed plan; and
   • (e) be drained and sealed with an all weather seal coat.

3. Prior to the commencement of the development, a Green Travel Plan must be submitted to and approved by the Responsible Authority. The Green Travel Plan must include, but not be limited to:
   • (a) electric motor vehicle charging points for vehicles/bicycles within the basement car park; and
   • (b) mechanism to encourage public transport use including welcome packs for new residents of the development.

1. No polluted and / or sediment laden runoff is to be discharged directly or indirectly into Melbourne Water's drains or watercourses.
2. The ground floor residential apartments, lobby and lift area must be constructed with finished floor levels a minimum of 300mm above the applicable flood level.
3. The entry / exit driveway of the basement car park must incorporate a flood proof apex and bund wall to a minimum height of 300mm above the applicable flood level.
4. All doors, windows, vents and openings to the basement car park must be a minimum of 300mm above the applicable flood level.
5. Any drainage system to the basement must be designed such that stormwater is unable to penetrate the basement.
6. Prior to the development plans being endorsed and the commencement of works, amended plans must be submitted to Council and Melbourne Water addressing Melbourne Water's conditions. Plans must be submitted with ground and floor levels to Australian Height Datum (AHD).

1. Privacy screens as required in accordance with the endorsed plans must be installed prior to occupation of the building to the satisfaction of the Responsible Authority and maintained to the satisfaction of the Responsible Authority thereafter.

1. The development must be provided with external lighting capable of illuminating access to each car parking space, bicycle parking space, store, rubbish bin, recycling bin, pedestrian walkways, stairwells, dwelling entrances and entry foyer. Lighting must be located, directed, shielded and of limited intensity so that no nuisance or loss of amenity is caused to any person within and beyond the site, to the satisfaction of the Responsible Authority.

1. The endorsed waste management plan must be complied with at all times unless with the further written consent of the Responsible Authority.

1. Any storm water drainage within the property must be provided and be connected to the nearest Council pit of adequate depth and capacity (legal point of discharge), to Council's satisfaction.
2. Areas must be provided inside the property line and adjacent to the footpath to accommodate pits and meters. No private pits, valves or meters on Council property will be accepted.

1. Prior to commencement of construction works, a pre construction site inspection and condition assessment of all right of ways and road ways abutting the development is to be prepared and in the event of damage during construction will be required to be repaired by the developer, at the developers cost and to the satisfaction of Council.
2. Before any development starts, a Construction Management Plan to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the plan will be endorsed as evidence of its approval. The plan must provide for or include the following:
   • (a) A pre-conditions survey of all adjacent Council roads and footpaths;
   • (b) Protection works necessary to road and other infrastructure (limited to an area reasonably proximate to the site);
   • (c) Remediation of any damage to road and other infrastructure (limited to an area reasonably proximate to the site);
   • (d) Containment of dust, dirt and mud within the site and method and frequency of clean up procedures in the event of build up of matter outside the site;
   • (e) On site facilities for vehicle washing;
   • (f) Methods for management of noise and general nuisance;
   • (g) Site security;
   • (h) Waste and stormwater treatment;
   • (i) Construction program;
   • (j) Preferred routes for trucks delivering to the site;
   • (k) Parking facilities for construction workers;
   • (l) Delivery and unloading points and expected frequency;
   • (m) An outline of requests to occupy public footpaths or roads, or anticipated disruptions to local services;
   • (n) An emergency contact that is available for 24 hours per day for residents and the Responsible Authority in the event of relevant queries or problems experienced;
   • (o) Traffic management measures to comply with provisions of AS 1742.3-2002 Manual of uniform traffic control devices - Part 3: Traffic control devices for works on roads; and
   • (p) All contractors associated with the construction of the development must be made aware of the requirements of the Construction Management Plan.
3. During the construction phase of the development, the following conditions must be met:
   • (a) Any stormwater discharged into the stormwater drainage system to comply with EPA guidelines;
   • (b) Stormwater drainage system protection measures must be installed as required to ensure that no solid waste, sediment, sand, soil, clay or stones from the premises enters the stormwater drainage system;
   • (c) Vehicle borne material must not accumulate on the roads abutting the site;
   • (d) The cleaning of machinery and equipment must take place on site and not on adjacent footpaths or roads;
   • (e) All litter (including items such as cement bags, food packaging and plastic strapping) must be disposed of responsibly; and
   • (f) All site operations must comply with the EPA Publication TG302/92 (including all revisions or replacement guidelines).
4. The development, once commenced, must be completed, to the satisfaction of the Responsible Authority.

1. Except with the written consent of the Responsible Authority, demolition or construction works must only be carried out between: 7.00 am - 6.00 pm, Monday-Friday (excluding public holidays) and 9.00 am - 3.00 pm, Saturday and public holidays. No work is to be carried out on Sundays, ANZAC Day, Christmas Day or Good Friday without a specific permit. All site operations must comply with the relevant Environmental Protection Authority's Guidelines on Construction and Demolition Noise.

1. This permit will expire if:
   • (a) The development is not commenced within two (2) years from the date of this permit; or
   • (b) The development is not completed within four (4) years from the date of this permit.

The Responsible Authority may approve extensions to these time limits if requests are made before the permit expires or within 3 months afterwards.

The site is located within an Environmental Audit Overlay. Pursuant to clause 45.03 of the Yarra Planning Scheme, the requirements of the Environmental Audit Overlay must be met prior to the commencement of works permitted under the permit.

A building permit may be required before development is commenced. Please contact Council's Building Services Unit on Ph. (03) 9205 5351 to confirm.

All future residents and occupiers residing within the development approved under this permit will not be permitted to obtain resident or visitor parking permits.

This planning permit covers only the works within the site and does not imply the rights to connect the utilities etc. within the road reserve.

In accordance with the Yarra Planning Scheme, a 4.5 per cent public open space contribution may apply in the event of the subdivision of the land.

A copy of this permit and the endorsed plan (and any subsequent variation) must form part of the document to any Contract of Sale or Lease for any part of the site after the date of the permit.

Prior to the commencement of works, the refuse collection point and on-site storage area of the development must be resolved with Council's Engineering Operations branch (based at the Collingwood Depot). The collection of refuse must also be in accordance with the requirements of Council's Services Contracts Unit and must be undertaken to the satisfaction of the Responsible Authority.

The flood level for the property is 24.3 metres to Australian Height Datum (AHD).

If further information is required in relation to Melbourne Water's conditions shown above, please contact Land Development on telephone 9235 2517 quoting Melbourne Water's Reference 181485.

[1] Common Equity Housing Pty Ltd v Yarra City Council and Ors, [2009] VCAT 1722. One of the members constituting this Tribunal is myself.

[2] Queens Parade Pty Ltd v Yarra CC [2011] VCAT 1173

[3] Stockland Developments Pty Ltd v Stonnington CC [2009] 2179. And Manhattan Hanson Roden Pty Ltd v Melbourne CC (VCAT Ref. P3204/2009).

[4] Inner Melbourne Action Plan adapted by the Cities of Melbourne, Yarra, Port Phillip, Stonnington and Docklands in December 2005, City of Yarra Strategic Transport Statement 2006

[5] VCAT Reference No. P2062/2009, heard on 15 December 2009 and order dated 31 March 2010.

[6] Silverton Group Pty Ltd v Boroondara CC & Ors [2010] VCAT 1889, and DD Planning v Yarra CC [2011] VCAT 889, KR Developments Pty Ltd v Moonee Valley CC [2010] VCAT 1063, Abito 3PL v Yarra CC [2003] VCAT 1809.

[7] Referring the Red Dot decision Architype Australia Pty Ltd v Yarra CC [2010] VCAT 497.