1. A permit is granted in relation to land at 139-155 Queensberry Street, Carlton. The permit will allow -
   • Construction of a multi-storey residential building with ground floor retail premises and a waiver of loading requirements
2. The permit is subject to the conditions contained in Appendix A to these reasons.

Mr Chris Canavan QC and Ms Emma Peppler of counsel, instructed by Planning & Property Partners Pty Ltd. They called the following witnesses:

• Mr Mark Sheppard, urban designer, David Lock Associates
• Ms Charmaine Dunstan, traffic engineer, Traffix Group Pty Ltd
• Mr Bryce Raworth, heritage consultant
• Mr Andrew Biasci, town planner, Contour Consultants Australia Pty Ltd

Statements prepared by Mr Chris Goss in relation to photomontages and Mr Jon Morgan in relation to wind effect were also filed but both witnesses were not called to give evidence or be examined.

Mr James Livingston, town planner. He called the following witness:

• Mr David Pryor, senior urban designer, Melbourne City Council

Rev Warren Green for Carlton Residents Association Inc (6 November 2013)

• A ten storey podium 32.5 m above Queensberry Street with the upper five storeys a further 16.2 m high setback between 11.2 m and 12.6 m from the street
• A maximum height of 48.7 m above Queensberry Street (excluding about 110 sq m of plant, lift overrun and roof access structure with a maximum height of 5.5 m)
• 193 dwellings (110 one bedroom, 74 two bedroom and 9 three bedroom)
• Ground floor retail premises of 329 sq m gross floor area
• Three basement levels, with access off Cornell Place at the rear, containing 138 car spaces
• Roof top garden of 354 sq m

Application under section 77 of the Planning and Environment Act 1987

Design & Development Overlay Schedule 44 (DDO44) (Elizabeth Street and South Carlton)

Clause 32.04-2 (use of land in MUZ for retail premises)

Clause 32.04-6 (constructing two or more dwellings on a lot in MUZ)

Clause 32.04-8 (building or works for retail premises on a lot in MUZ)

Clause 52.07 (waiver of loading requirements for retail premises)

Clauses 10, 11, 13, 15, 16, 17, 18, 18, 21.02, 21.03, 21.04, 21.06, 21.07, 21.08, 21.09, 21.10, 21.16, 21.17, 22.02, 22.17, 22.19, 52.07 & 65

The land is on the south side of Queensberry Street between Swanston Street and Cardigan Street in south Carlton, about 300 m north of Victoria Street and Melbourne's CBD. It is generally rectangular with a frontage to Queensberry Street of about 44 m and depth of about 34 m and an area of about 1,460 sq m. Along the full length of its east boundary it abuts Queensberry Place. This lane is a 4 m wide carriageway in a 6 m wide reserve and with 1 m wide footpaths on both sides. Along the full length of its south boundary it abuts Cornell Place. This lane is a 5.7 m carriageway in a 6.4 m wide reserve and with a 700 mm footpath on the south side. Along part of its west boundary it abuts an unnamed Council lane. The land is occupied by a two storey commercial building generally built to its boundaries.

7 November 2013 (accompanied by representatives of the parties)

1. At the conclusion of the hearing I announced to the parties my intention to make the above orders and to provide brief reasons.
2. The Applicant has applied to the Tribunal to review the Council's decision to refuse to grant a permit to construct a mixed use building on the subject land the features of which are briefly described in the above Information section of these reasons.

1. There is no dispute that the land has attributes well suited for higher density development. It is close to the CBD, close to excellent public transport, close to many services and facilities (including higher educational services), is a large site with a broad street frontage, and is under-developed with a non-heritage listed 80-year old two-storey commercial building. In addition, it has less sensitive abuttals in the sense that three and a half of the four boundaries of the land abut streets or lanes.
2. I agree with Mr Sheppard that the existing built form character in and around this part of Queensberry Street is varied with a mix of uses, building styles and building heights between two-storey heritage buildings and 10- storey contemporary apartment buildings.
3. The emerging built form character includes a 17-storey mixed use building under construction on adjoining land on the southeast corner of Queensberry Street and Swanston Street (known as the Cloud) and a 9-storey mixed use building on a cleared site ready for development opposite the land on the east side of Queensberry Lane at 73-81 Cardigan Street.
4. Having regard to State and local policies promoting urban consolidation in this area (particularly the street block bounded by Swanston Street, Victoria Street, Cardigan Street and Queensberry Street), the land should be developed at or near its potential, subject to application of all the relevant policies and provisions of the scheme.
5. The key issue in this proceeding is the building's fit with the built form character of the area. The Council and the Respondents submit the proposal goes well beyond its appropriate potential and it would be too bulky, out of character and be a poor transition to lower scale built form to the east.

1. While there are many relevant policies and provisions in the Melbourne Planning Scheme, the most specific one is DDO44. DDO44 applies to a smaller area of South Carlton and a larger area around Elizabeth Street. In general terms, it is divided by DDO45 which applies to the Swanston Street spine. North of Queensberry Street is DDO47 which applies to central Carlton South.
2. The preferred maximum height in DDO44 is 8 storeys. If a building exceeds that height, the design objectives and built form outcomes must be achieved along with any other relevant policies. Both the 10-storey podium and the 15-storey tower element exceed the preferred height of 8 storeys.
3. Three of the six design objectives are relevant. They may be summarised as -
   • Developing a new built form character in a transitional area.
   • Encouraging consistent higher built form.
   • Maintaining a contrast with CBD built form
4. It is relevant to observe that these are also objectives in DDO45 but not in DDO47. This confirms similarities between DDO44 and DDO45. Both are transitional areas supporting material change. The preferred building height in DDO45 is only one storey higher than in DDO44.
5. In relation to the first relevant objective, the building is consistent with an area undergoing transition to a new built form character. This objective is therefore met.
6. In relation to the second relevant objective, 'consistent higher built form' is not easy to assess because it does not clarify with what the higher built form is to be consistent.
7. Mr Pryor's opinion was the building was not a consistent higher built form because there could be only consistency up to 8 storeys. I do not agree because this elevates an objective to a rule. It does not make sense for consistency to be based on preferred height. If the Cloud's 17 storeys could be said to be a consistent form in DDO45 with the approximately two to 10-storey forms in DDO45, then this building's 15 storeys could be said to be a consistent form in DDO44 with its approximately two to 9 storey built or approved forms in DDO44.
8. Mr Pryor also relied on the Cloud in expressing the opinion that consistency meant ensuring the relative prominence of buildings in DDO45. The maximum height, excluding rooftop plant etc, of the proposed building is RL81 and the Cloud is about RL86. In other words, the absolute height of the Cloud is about 5 m higher than the proposed building.
9. There is no effective requirement for ensuring prominence for built form in DDO45 because, taking maximum height as one factor, there is only one storey preferred height difference in between DDO44 and DDO45. The casual observer rarely notices a one-storey difference at 8 or 9 storeys. The proposed 5 m lower comparative height of the proposed building reflects, in any event, that marginal difference.
10. Even if I am wrong and this objective infers relative prominence, the Cloud will remain relative prominent because the buildings will only abut at their lower levels. The large setback of the tower element will ensure prominence for the Cloud.
11. In my view, the objective seeks to encourage built form around 8 storeys throughout DDO44. It does not mean it will always be achieved. It does not mean higher form cannot sometimes be achieved.
12. As Mr Sheppard remarked, the 32.5 m high streetwall would effectively meet the preferred height in DDO44 if this was wholly a commercial building with 4 m between floors. As the land is in the MUZ, this is an apt comparison.
13. In summary, the second design objective is achieved.
14. In relation to the third relevant objective, the 15-storey maximum height contrasts with higher CBD built form in the sense that there will be contrast with the two buildings each about 50 storeys near Victoria Street about 400 m away that form the southwest backdrop to the land.
15. In Mr Pryor's opinion a relevant reference point is the maximum CBD streetwall height of 40 m and the lack of contrast with the 49 m entire south facing wall on Cornell Place and 49 m high part of the east facing wall Queensberry Lane. I doubt this is what is meant by the objective. In any event, I would not apply this requirement to the service lane function of the two lanes. Queensberry Street has the key streetwall and there is sufficient contrast between that wall and CBD streetwalls.
16. Finally, the contrast objective also applies in DDO45. If the 17-storey Cloud is taken to contrast with CBD built form, it is difficult to conclude the proposed 15-storey building does not. In summary, the third design objective is met.
17. I now turn to built form outcomes. There are a number of such outcomes. Only one is relevant, being a new character reflecting institutional, commercial and residential demand. The building meets that outcome because it is helps create a new character in DDO44 that meets residential demand.
18. To complete the DDO44 analysis, it is necessary to consider the DDO decision guidelines and other relevant policies or urban design guidelines. The Council and Mr Pryor relied on four matters.
19. The first was concern that the height and width of the podium would overwhelm the two-storey adjacent heritage dwellings to the east on Queensberry Street, and that the tower element would overwhelm the three lanes.
20. I prefer the opinions of Mr Sheppard and Mr Raworth to those of Mr Pryor. The podium is about 24 m higher than the two dwellings and this is significant. I nonetheless find the interface reasonable. There is a 5 m wide lane separation. The juxtaposition of heritage form against much higher form in areas of change is not unsual. The tower element is positioned south of the dwellings and thus opening a western vista. The dwellings have a north-south orientation. The design features in the eastern wall break up the façade into three separate vertical sections each with horizontal and further vertical framing elements and this helps reduce bulk impacts.
21. The large setback of the tower is important and ensures significant visual recession in this section of Queensberry Street. Oblique views from the west will be restricted by the Cloud when completed. Oblique views from the east will be more open given the two storey built form at the corner but they will be framed by the 9-storey building at 73-81 Cardigan Street and by any future development, possibly behind the heritage facades, at the corner consistent with DDO44.
22. It is also relevant that the tower element is located centrally within the street block. This ensures it is visually recessive in an overall sense. As well as being about 12 m from Queensberry Street (and largely hidden behind the streetwall from with the section of the street opposite), the tower element's nearest points are at least 30 m from both Swanston Street and Cardigan Street.
23. At the inspection, Mr Green and Mr Bird drew my attention to a building under construction on a site further north at 103 Pelham Street. In general terms the building had a taller western section (closer to Swanston Street) of about 11 storeys and a lower eastern section (closer to Cardigan Street) of about 7 storeys. This is similar to the sort of outcome preferred by the Council in this proceeding. 103 Pelham Street has some similarities in context in that it is on a wide lot, located mid block on the south side between Swanston Street and Cardigan Street, adjoins a two-storey built form on the Cardigan Street corner, and adjoins recent higher built form at the Swanston Street corner.
24. The building at 103 Pelham Street does not reliably support the Council's decision and preferred outcome because there are important differences in context. First, the land is in DDO47 where a design objective is to maintain low scale form with a preferred maximum height of four storeys. Second, the eastern edge of 103 Pelham Street is closer to Cardigan Street than the eastern edge of 139-155 Queensberry Street because the corner lot is smaller and because there is no adjoining lane. Third, on the east side of Cardigan Street opposite 103 Pelham Street is a more sensitive public realm interface with public gardens.
25. In summary, the building is a reasonable response to the emerging or preferred built form character.
26. The second matter was an adverse impact on the function of the lanes and a failure to meet equitable development objectives. The lanes have a current and future service function and not predominantly a pedestrian function. There is no explicit policy about activating these lanes. The Cloud and the Cardigan Street building do not provide pedestrian access from the rear. They, like the proposed building in this proceeding, focus pedestrians to the outer edges of the street block.
27. In relation to equitable development, the key nearby site with future development potential is the land to the south of Cornell Place at 500 Swanston Street. I prefer the opinion of Mr Sheppard that given the relatively wide lane reserve here of about 6.4 m an acceptable separation between habitable room windows of 9 m can be maintained with reasonable width balconies directly abutting the lanes.
28. I prefer the urban design policy analysis of Mr Biasci to that of Mr Pryor because he placed more appropriate emphasis on the land being in an area in transition to a new and emerging built form character.
29. The Council adopts the opinion expressed by Mr Pryor that a balanced approach means the built form volume would have to be significantly reduced. His opinion is that the tower element must be lowered by 3 storeys for its western 30 m and lowered by 7 storeys for its eastern 15 m and must be setback 4 m from the southern boundary and 3 m from the eastern boundary. His opinion is also that the podium must be lowered by 2 storeys for its western 30 m and by 5 storeys for its eastern 15 m.
30. It follows from my reasons that such changes are not needed to the building. The changes would be discordant with the emerging built form, especially of the 9-storey building in Cardigan Street. No greater deference to the Cloud is required.
31. I also give more weight to Mr Goss's photomontages than the Council's GIS images for various reasons including the former being submitted as expert evidence in accordance with the Tribunal's requirements and it being a more sophisticated visual depiction including façade features.

1. DDO44 is not the only relevant consideration.
2. Moving briefly to amenity impacts at the interfaces, I adopt Mr Sheppard's opinion about interfaces with the Cloud, the Cardigan Street building, and the two storey heritage building on Queensberry Street. It is relevant that the Cloud's owners have stated in writing they are content with the proposal in the amended plans and no longer contest the application.
3. Mr Bird relied on the adverse impact on the heritage places to the east and south east. The Council did not rely on heritage grounds. I prefer the analysis of Mr Raworth. The land is not in heritage overlay and there is no formal obligation to assess impact on nearby heritage places.
4. Mr Green and Mr Bird expressed concerned about creep of justification for higher built form into other nearby areas. I can only confirm that each proposal must be considered on its individual merits.
5. I record that the Council, Mr Green and Mr Bird do not dispute Mr Sheppard's and Mr Biasci's assessment of internal amenity.
6. Mr Green opposes a loading zone waiver for the retail premises. Having regard to the opinion of Ms Dunstan and the location of loading zones in the vicinity of the site, a waiver is reasonable.
7. If a permit was to grant, the Council favours the inclusion of conditions relating to examination of potential soil contamination. At the hearing, Mr Livingstone tendered a less onerous version of the conditions with which the Council would now be content. I do not consider any such conditions are necessary. Even the proposed use is largely residential, the land and its surrounds are not in an Environment Audit Overlay. While that does not mean there will not be a contamination issue, there is nothing in the history of the use of the land indicating the probability of an issue. Mr Raworth's evidence is that the land was used for residential purposes before it was changed to a factory use in a building occupying the whole site in the 1930s before it changed to office use in more recently. In addition, the proposal involves the excavation of the whole of the site to a depth of about 9 m and the encasing of the floor and walls with a concrete lining.

1. The Council has not persuaded me that refusing a permit was the correct and preferable decision. The proposal is an acceptable planning outcome and I will grant a permit subject to conditions.

Construction of a multi-storey residential building with ground floor retail premises and a waiver of loading requirements

1. Prior to the commencement of any construction or carrying out of works on the land, the Applicant must submit to the Responsible Authority three copies of plans drawn to scale generally in accordance with the plans drawn by Plus Architecture dated 19 September 2013 but amended to show -
   1. Any changes required by wind tunnel testing required by condition 5.
2. The use and development as shown on the endorsed plans must not be altered or modified without the prior written consent of the Responsible Authority.
3. Prior to the commencement of the development, including demolition or bulk excavation, a detailed construction and demolition management plan must be submitted to and be approved by the Responsible Authority. This construction management plan is to be prepared in accordance with the City of Melbourne - Construction Management Plan Guidelines and is to consider the following -

1. Public safety, amenity and site security; 2. Operating hours, noise and vibration controls;

1. Stormwater and sediment control; 2. Waste and materials reuse; and 3. Traffic management.
2. All projections over the street alignment must be drained to a legal point of discharge in accordance with plans and specifications first approved by the Responsible Authority - Manager Engineering Services Branch.
3. Prior to the commencement of the development, wind tests carried out by a suitably qualified consultant, must be carried out on a model of the approved building. A report detailing the outcome of the testing must be submitted to and be to the satisfaction of the Responsible Authority. The report must also recommend any modifications which must be made to the design of the building to reduce any adverse wind conditions in areas used by pedestrians, to the satisfaction of the Responsible Authority. The recommendations of the report must be implemented at no cost to the Responsible Authority and must not include reliance on street trees.
4. Prior to the commencement of the development, an Environmentally Sustainable Design (ESD) Statement shall be prepared by a suitably qualified professional and submitted to the satisfaction of the Responsible Authority. The ESD Statement must demonstrate that the building has the preliminary design potential to achieve the following -
   1. A 5 star rating under a current version of Green Star - Multi Unit Residential rating tool or equivalent; and
   2. 1 point for Wat-1 credit under a current version of the Green Building Council of Australia's Green Star - Multi Unit Residential rating tool or equivalent.
5. The performance outcomes specified in the Environmentally Sustainable Design (ESD) Statement required by condition 6 for the development must be implemented prior to occupancy at no cost to the City of Melbourne and be to the satisfaction of the Responsible Authority.

Any change during detailed design, which affects the approach of the endorsed ESD Statement, must be assessed by an accredited professional. The revised statement must be endorsed by the Responsible Authority prior to the commencement of construction.

1. The owner of the subject land must construct a drainage system, incorporating integrated water management design, within the development and make provision to connect this system to the City of Melbourne's stormwater drainage system in accordance with plans and specifications first approved by the Responsible Authority - Manager Engineering Services Branch.
2. All necessary vehicle crossings adjacent to the subject land must be constructed and all unnecessary vehicle crossings demolished in accordance with plans and specifications first approved by the Responsible Authority - Manager Engineering Services Branch.
3. The owner of the subject land will not be permitted to alter the existing footpath/road levels in Queensberry Street, Queensberry Place and Cornell Place for the purpose of constructing new vehicle or pedestrian entrances without first obtaining the written approval of the Responsible Authority - Manager Engineering Services Branch.
4. The footpath in Queensberry Place adjacent the subject land must be upgraded and reconstructed in asphalt together with associated works, including the renewal and relocation of kerb and channel and the relocation of all services pits and covers as necessary, at the cost of the owner/developer in accordance with plans and specifications first approved by the Responsible Authority - Manager Engineering Services Branch.
5. The footpath in Queensberry Street which is adjacent to the subject land must be reconstructed in accordance with plans and specifications first approved the Responsible Authority - Manager Engineering Services Branch.
6. Any requirement to temporarily relocate street lighting must be first approved by the City of Melbourne - Manager Engineering Services Branch.
7. All street lighting temporarily relocated must be reinstated to the satisfaction of the City of Melbourne - Manager Engineering Services Branch.
8. A warning device/sign should be installed at the car park entry alerting pedestrians when vehicles are exiting the building, to the satisfaction of the Responsible Authority.
9. The parking, loading and unloading areas shown on the endorsed plans must be kept available for that use at all times and the car parking spaces and access ways must not be obstructed or otherwise rendered inaccessible.
10. The waste storage and collection arrangements as outlined in the Waste Management Plan prepared by Leigh Design dated 27 November 2012 and provided with the application must not be altered without prior consent of the City of Melbourne - Engineering Services.
11. This permit will expire if one or more of the following circumstances apply -

1. The development is not started within two years of the date of this permit. 2. The development is not completed within four years of the date of this permit.

1. The use is not started within four years of the 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.