Renaissance United Assets Management Pty Ltd v Yarra CC [2018] VCAT 103

1. In application P101/2017 the decision of the responsible authority is affirmed.

1. In planning permit application PLN15/0645 no permit is granted.

• Mr Tim Biles, town planner & urban designer, Message Consultants Australia Pty Ltd
• Dr Phillip Greenup, lighting designer, Arup Pty Ltd
• Mr Jason Walsh, traffic engineer, Traffix Group Pty Ltd
• Mr David Bick, conservation architect
• Mr Christopher Goss, visualisation, Orbit Solutions Pty Ltd

Mr John Batten (10, 11 & 12 July 2017) & Ms Sandra Batten (8 December 2017)

For Bruce Baade, Margaret Kelso, Kelly Williamson & Hamish Sutton

Mr Peter O'Farrell of Counsel, instructed by Mr Nick Sutton, Planning & Property Partners Lawyers & Consultants

• Mr Rob Milner, town planner, 10 Consulting Group Pty Ltd
• Mr Valentine Gnanakone, traffic engineer, One Mile Grid Pty Ltd
• Mr Stephen Schutt, visualisation, Hansen Partnership Pty Ltd

It contains a shop (part ground and part lower ground level), 23 apartments comprising 11 studio apartments, six one-bedroom apartments, four two-bedroom apartments and two three-bedroom apartments, and 11 car spaces at the lower ground level accessed from a rear lane off Sherwood Street

Application under section 77 of the Planning and Environment Act 1987 to review the refusal to grant a permit

Heritage Overlay Schedule 310 (HO310) (Bridge Road Precinct, Richmond)

The land adjoins a road in a Road Zone Category 1 (RDZ1) (Bridge Road)

Clause 34.01-1 (use of land in C1Z for accommodation if frontage exceeds 2 metres)

Clause 34.01-4 (construction of buildings and works on a lot in C1Z)

Clause 43.01-1 (demolition of a building and construction of buildings and works in HO310)

Clause 52.07 (waiver of loading requirements)[1]

Clauses 9, 10, 11, 15, 16, 17, 21.02, 21.03, 21.04, 21.05, 21.07, 21.08, 21.09, 21.10, 21.11, 22.02, 22.03, 22.05, 22.07, 22.16, 22.17, 34.01, 43.01, 52.06, 52.07, 52.34, 58 & 65

The land is on the south side of Bridge Road, about 140 metres east of Punt Road and about 40 metres west of Rotherwood Street. It is rectangular in shape with a frontage of 12.7 metres, a depth of 41.5 metres and an area of about 516 square metres. The land falls about 3.8 metres from the north-east corner to the south-west corner of the land. The land is developed with a double-storey commercial building containing two shops. The rear of the land is partly used for at-grade car parking. The rear of the land is accessed via a T-shaped lane, about 40 metres long, off Sherwood Street.

On 11 July 2017, the Tribunal inspected 21, 23 & 25 Sherwood Street (being the land adjoining the subject land to the south) accompanied by the parties. Immediately after that, the Tribunal then undertook an unaccompanied inspection of the neighbourhood in which the land is located and some other nearby locations identified by the parties as relevant in the proceeding, including the roof terrace of the nearby Mountain View Hotel, the former Pelaco Building and Pelaco sign.

On 5 January 2018, the Tribunal again inspected Sherwood Street, Bridge Road and Wellington Parade South, and other vantage points in and around Punt Road south of Bridge Road from which the Pelaco sign could be observed. The Tribunal also inspected, at the request of the applicant, a number of locations where recent (or recently approved) multi-storey development adjoined existing low-rise housing, including the interface between 37-41 Bridge Road and 15 Moorhouse Street, between 45-47 Bridge Road and 20 Normanby Place, between 243 Bridge Road and 41 Bank Place, between 171 & 173 Lennox Street, between 172-174 Lennox Street and 176 Lennox Street, and between 172-174 Lennox Street and 5 & 7 Union Street.

1. The south side of Bridge Road, Richmond, immediately east of Punt Road and extending to Rotherwood Street, is a low-rise (one to three storeys) commercial streetscape. Most of the buildings were built in the nineteenth century and the streetscape is subject to heritage controls.
2. Immediately behind the commercial premises in this streetscape is a residential area with a mixture of nineteenth century houses, later infill houses and both more recent and older apartment buildings.
3. Further to the east, south of Bridge Road and to the east of Lennox Street, is the former Pelaco factory and on its roof sits a well-known and heritage-protected advertising sign. The Pelaco sign is prominent from various locations to the west of the sign, including Sherwood Street, which is a street from which access to the rear of the land is obtained, via a lane.
4. Renaissance United Assets Management Pty Ltd (in these reasons, Renaissance) owns land on Bridge Road and wants to demolish the two, two-storey commercial buildings on the land and construct a seven-storey mixed use building.
5. Renaissance applied to Yarra City Council for a permit under the Yarra Planning Scheme (the scheme) to undertake these buildings and works. The Council's officers recommended the Council grant a permit subject to conditions. The Council refused to grant a permit on heritage, urban design, character, internal amenity and equitable development grounds. Renaissance applied to the Tribunal to review the Council's decision. All of the respondents are opposed to the grant of a permit. Their grounds include those of the Council plus impact on views of the Pelaco sign and traffic and parking issues.
6. Renaissance prepared amended plans in an attempt to address the concerns of the Council and the respondents. It submitted those plans were in accordance with the conditions in the permit the Council's officers recommended be granted. I granted leave in an interim order for the plans to be substituted.
7. The amended plans make various changes that I do not need to describe but Renaissance's proposal may continue to be described as demolition of all buildings and construction of a seven-storey mixed use building (the proposal). The brief details of the proposal are set out in the information section at the start of these reasons. The Council decided to not support the grant of a permit in respect of the proposal, mainly on heritage grounds. The respondents remain opposed to the grant of a permit on the grounds on which they originally relied.
8. The main issues agitated by the parties in this proceeding relate to the three items of context to which I have referred in paragraphs 1 to 3. They may be expressed as follows:
   • Does the proposal adversely affect the significance of the heritage place?
   • Does the proposal have an unreasonable impact on the amenity of the land to the south, especially land in Sherwood Street?
   • Does the proposal unreasonably impact on views to the Pelaco sign?
9. My ultimate finding, after considering these issues, other relevant considerations under the scheme, and undertaking a net community benefit analysis, is that the proposal is not an acceptable planning outcome. Conditions cannot be included in a permit to enable it to become an acceptable planning outcome. No permit will be granted. My reasons follow.

1. The proposal responds positively to the overall strategic context. The scheme identifies the land as being located within the Bridge Road major activity centre (the activity centre). The activity centre is a preferred location under State and local policy for more intensive development, including higher density residential development.
2. The activity centre extends from Punt Road/Hoddle Street in the west to the Yarra River in the east, a distance of about 2.2 km. In general terms, the activity centre is narrow and does not often extend further north or south from Bridge Road beyond the dimensions of the lots on which the original commercial buildings were located. This proceeding focuses on that section of the activity centre on the south side of Bridge Road between Punt Road and Rotherwood Street (the section). See figure 1 below.

Figure 1 - Zones in and around the activity centre. The subject land is outlined in red.

1. I agree with the opinions of Mr Biles and Mr Milner that the north side of the activity centre, especially in the longer section between Punt Road/Hoddle Street and Church Street, has been developed more intensively in recent years. The Epworth Hospital is on the north side, occupying a large site between Bridge Road and Erin Street, and the extent and scale of recent buildings on its site is prominent. There are many sites, more of them to the east side than the west side of the hospital, that have been recently redeveloped with taller built forms of up to about ten storeys, often behind retained fronts of original buildings or new fronts generally observing streetscape scale.
2. There has been no recent multi-storey development in the section. I have no evidence on the number and type of applications, if any, refused by the Council in the section. The only application that was refused and reviewed by the Tribunal concerned land close to the corner of Punt Road at 18-20 Bridge Road.[3] That application proposed demolition of an existing three-storey non-contributory building and construction of a seven-storey, mixed-use building containing seven apartments and one shop. The Tribunal, in 2013, did not grant a permit for that development.
3. There are no doubt many reasons for the differences in the development outcomes between the north and south side of Bridge Road.
4. However, it cannot be said that local policy or particular requirements of the scheme have discouraged development of land in the section. There is no structure plan prepared and approved by the Council for the activity centre that encourages more intensive development on the north side of Bridge Road in the activity centre in the vicinity of the subject land. There are no built form requirements in the scheme in, for example a Design & Development Overlay (DDO), that restrict built form outcomes in the section compared to land on the north side of Bridge Road or other parts of the activity centre.
5. The hinterland context is likely to be one of the reasons for the difference. It has added constraints to development in the section relative to other parts of the activity centre. I do not observe any significant difference in the physical context. The mixture of mainly original lower-scale residential development from the Victorian era and interspersed with a variety of forms from later periods is not significantly different at the boundary between land fronting Bridge Road and land immediately to its rear elsewhere in the activity centre.
6. However, the provisions of the scheme are different at the interface to the south abutting the section from the interface abutting lots on the north side of Bridge Road. The two main differences are the relevant zone and heritage provisions.
7. Except for the interface at the immediate corner of Punt Road and Bridge Road, the interface of the section is wholly in the Neighbourhood Residential Zone (NRZ). No other part of the immediate hinterland on the north side of the activity centre is similarly zoned. Between Hoddle Street and Church Street, only a small section near Hoddle Street is in the NRZ. Over 80% of the abutting land at the interface is in either a General Residential Zone (GRZ), a Special Use Zone that acknowledges the Epworth Hospital, or a Mixed Use Zone (MUZ).
8. Hence, respect for existing or preferred character is more relevant for development of land at the interface in the section. In accordance with established authority, there is a need to acknowledge this sensitivity in the design response for development of land in the section.
9. The hinterland abutting the section (and extending to the hinterland on the south side of Bridge Road to the east, generally to Church Street) is wholly in the Richmond Hill heritage precinct. Further to the east, on the south side, there is no heritage precinct covering any significant section of the hinterland. In the hinterland on the north side of Bridge Road, only a small part of the section between Hoddle Street and Lennox Street is the West Richmond heritage precinct. East of Lennox Street, there is no heritage precinct covering any significant section of the hinterland on the north side of Bridge Road.
10. Accordingly, the hinterland of the section has an elevated heritage sensitivity to the hinterland of the activity centre elsewhere.
11. There are a few other factors that could help explain the difference between the south and north side of Bridge Road.
12. The size and shape of land parcels could be a factor. Lots covering more than half of the overall frontage in the section are only about 21.2 metres deep. These lots are in two parts to the west and east of a central part of the section. The central part extends from 30 to 56 Bridge Road and so the land in this proceeding is at the eastern end of this part. The shallower lots (ie those about 21.2 metres deep) appear to be generally in the shallowest range of lots in the activity centre.
13. Topography could be a factor. The land in this part of the municipal district falls to the south and west from two high points on which the Epworth Hospital and the former Pelaco factory are located. In the information section at the start of these reasons, I have referred to the 3.8 metres fall in the land away from Bridge Road. This factor tends to increase the visual impact of buildings from lower vantage points to the south.
14. The convenience of rear access to lots in the section could also be a factor. The east and west parts of the section have the advantage of conventional rear lanes running east-west along rear boundaries of lots. However, the central section does not have such lanes and is accessed from three north-south lanes off Sherwood Street on the west side of 7, 11 & 21 Sherwood Street. These lanes provide court-like access ie requiring entry and egress from those lanes.

1. The land is in a heritage precinct known as the 'Bridge Road Precinct'. It includes land on both the north and south sides of Bridge Road, east of Punt Road and further east past the land. The heritage place is the precinct.
2. The relevant statement of significance for the precinct emphasises the aesthetic and historic significance of the one-storey and two-storey Victorian and Edwardian era shops in continuous rows with no front and side building setbacks and architectural continuity and high integrity of upper level facades.
3. The two buildings on the land were constructed in about the 1950s and are 'not contributory' under the Council's latest heritage review. The surrounding buildings are of greater significance. To the immediate east, the five shops and then the hotel (on the corner of Rotherwood Street) are all 'contributory'. To the west, the abutting building at 52 Bridge Road is 'not contributory' and next to it are seven two-storey buildings (in three terrace groups) that are either 'contributory' or 'individually significant'. In fact, only the buildings on three parcels of land between Rotherwood Street and Punt Road are not either 'contributory' or 'individually significant'.[4]
4. The heritage overlay operates to potentially temper the otherwise broad support for new development in the activity centre. However, this constraint is not an unusual one in the City of Yarra because four of the five major activity centres in the municipal district are substantially affected by heritage overlays.
5. Land to the immediate south (including south-west and south-east), comprising the T-shaped lane off Sherwood Street and the dwellings at 21, 23 & 25 Sherwood Street and the apartments at 15 & 27 Sherwood Street and 2 Rotherwood Street are in a separate heritage precinct known as the 'Richmond Hill Precinct'. Figure 2, below, shows the location of the two heritage precincts.

Figure 2 - Heritage precincts. The subject land is outlined in red.

1. The demolition of the non-contributory buildings on the subject land is not in dispute and is acceptable.
2. The proposal includes a three-storey street wall that is about one metre higher than the street wall of the five contributory terrace-style buildings to the east, about two metres higher than the street wall of the non-contributory street wall to the west, and about the same or marginally higher than the seven contributory buildings adjoining the non-contributory building. The scale of the street wall is not in serious dispute.
3. The critical issue is the impact of the three topmost levels (ie those above the street wall and those identified on the plans as the third, fourth and fifth floors) upon the significance of the precinct. The plans show the third and fourth floors set back 5.3 metres (to the two full width balconies/terraces) and between 6.5 metres and seven metres (to the front walls) from Bridge Road. The top level (the fifth floor) is set back seven metres (to the full width balcony) and 8.6 metres (to the front walls) from Bridge Road.
4. Under heritage policy, 'general' requirements for new buildings include encouragement for massing that corresponds to the prevailing form of the contributory elements of the heritage place and for the design to be visually recessive and to not dominate the heritage place.[5] The policy also sets out 'specific' requirements for a 'commercial' heritage place such as the Bridge Road Precinct.
5. It is policy that specific requirements prevail over general requirements.[6] Under specific requirements, it is policy to encourage 'new upper level additions' to be set back from lower built form elements, to encourage each higher element to be set further back from lower heritage built forms, and to encourage those additions to incorporate treatments that make them less apparent.
6. The policy, as a whole, clearly distinguishes between 'new development' and 'additions'. The proposed building is 'new development'. As the specific requirements apply to 'new upper level additions', those requirements do not apply. There is therefore no inconsistency between general and specific requirements. The general requirements alone apply.
7. Mr Bick agrees the three upper levels are greater in scale than adjacent contributory and significant buildings and are three to four storeys higher than, and are differently articulated to, other buildings in the section of the precinct. In that sense, he concedes the three levels are not consistent with the architectural integrity and context of the precinct.
8. Nonetheless, in his opinion, these levels are sufficiently visually recessive and acceptable because, in summary:
   • Although greater setbacks may have been justified if the land was not in the activity centre, the strategic context of a major activity centre and the 'relatively shallow' depth of the land, at about 41 metres, supports lesser setbacks.
   • From directly opposite in Bridge Road, the setbacks mean that only the fourth floor and part of the fifth floor will be apparent and the visual impact is lessened by the proposed full width glass (and not solid) balustrades.
   • From oblique views within the precinct to the east and west along Bridge Road, the three floors will not 'stand out' because they will 'merge' with the distant high-rise building backdrop (to the west) and will 'partly' merge with surrounding buildings (to the east).
9. Under the heritage overlay, the main considerations are whether the bulk, form or appearance of the proposed building would adversely affect the significance of the precinct and whether the bulk, form and appearance of the proposed building is in keeping with the character and appearance of adjacent buildings and the precinct. In making this assessment, I agree with Mr Bick that impacts from the public realm are the most relevant in this proceeding.[7]
10. I do not accept Mr Bick's evidence that the proposed building is acceptable having regard to these main considerations.
11. Mr Goss' photomontages to the west (ie figures 2.1 & 2.3) show the proposed building from the footpath on the north side of Bridge Road about 100 metres east of the land and near the Epworth Hospital vehicle entrance. They do not show any merging with any distant high-rise backdrop. His photomontages to the east (ie figures 4.1 & 4.3) show the proposed building from the tram stop in the centre of Bridge Road to the immediate east of Punt Road/Hoddle Street and about 140 metres west of the land. They also do not show no merging with surrounding buildings.
12. Mr Schutt prepared photomontages also from both the east and west but from different viewpoints. The photomontage to the west (ie view location 3) shows the proposed building from a closer viewpoint on the footpath about 70 metres east of the land. Again, there is no merging with any distant high-rise backdrop. The photomontage to the east (ie view location 2) is about 40 metres further to the north-east on the north-east corner of Hoddle Street and Wellington Parade. As with Mr Goss' photomontage, it also does not show no merging with surrounding buildings. Figure 3, below, is an extract from Mr Schutt's photomontage.[8]

Figure 3 - Mr Schutt's photomontage facing west along Bridge Road

1. I do not agree with Mr Bick that the 'shallow' depth of the land justifies, in part, the proposed street setbacks. As I have stated, the depth of the land exceeds most lots in the section. Mr Goss' and Mr Schutt's photomontages on the oblique from the east and west confirm there are insufficient setbacks. The upper levels appear dominant and loom over much of the heritage fabric in the section.
2. In the Tribunal's decision refusing a permit to construct a seven-storey building at 18-20 Bridge Road,[9] the three upper levels (above a three-storey street wall) were set back between about 7.6 metres and 11.6 metres (to building wall, not balconies) from Bridge Road. They were found to be 'monolothic' in appearance from viewpoints along Bridge Road. Recognising that the different context of that proposal (including the smaller land size, the lack of sensitive rear interface, the land being closer to Punt Road and an earlier policy context), the decision is a further guide that draws attention to the insufficient upper floor setbacks.
3. Even if nearby land in the section is developed with buildings containing three or more overall levels so that the building in this proceeding (if constructed) would appear part of a cluster rather than isolated, the impact would remain unacceptable.
4. In conclusion, I find that the bulk, form and appearance of the three upper levels of the building would adversely affect the significance of the precinct and are not in keeping with the character and appearance of adjacent buildings and the precinct.

1. The principal issues relating to the land's residential interface are visual bulk, overlooking and overshadowing impacts.

1. The rear boundary of the land does not directly abut residential land. At the rear boundary is a short section of 'dead end' lane. The section of lane extends along the full width of the rear boundary, but does not extend further to the east. The section of lane forms the right-hand top of the 'T' of the lane off Sherwood Street that provides rear access to the land. This section of lane is 4.475 metres wide. On the south side of this section of lane (including land to the south-east and south-west of the land's rear boundary), the land is in an NRZ.[10]
2. The rear interface of the building has seven levels.[11] In general terms, the lower three levels are built to boundary, the fourth level has a small setback, and the fifth to seventh levels have setbacks of 8.6 metres, 8.6 metres and 11.6 metres, respectively.[12]
3. The most sensitive parts of the interface are the single dwellings at 21, 23 & 25 Sherwood Street, whose occupants are the fourth respondents in this proceeding. The three nearby multi-storey older-style apartment buildings at 15 & 27 Sherwood Street and at 2 Rotherwood Street are not as sensitively located. The dwellings at 21 & 23 Sherwood Street both have north-facing living rooms on the rear walls of the dwellings adjacent to rear gardens 9.1 metres deep and five metres wide. Those gardens sit lower than the rear boundary of the subject land due to the fall in the land to the south.
4. The rear fences of 21 & 23 Sherwood Street, abutting the lane, are about two metres high. Abutting the rear boundary at 21 Sherwood Street is a part-masonry and part-steel outbuilding with a floor area of about 2.5 metres by 3.5 metres which has a gable roof with a ridge about 3.3 metres high. The garden of 23 Sherwood Street is relatively densely planted. The rear boundary of 25 Sherwood Street does not abut the lane. It is a minimum of six metres to the south-east of the subject land.

It is a wider lot (about 15.5 metres) and has a lowered rear garden in the north-west corner about 10 metres wide and eight metres deep.

1. The Council correctly identifies longstanding Tribunal authority that the objectives of each zone at an interface must be balanced by the principle of relative amenity. In essence, this means that residents in a residential zone at the interface cannot expect the same level of amenity as in a residential hinterland location and development in a commercial zone at the interface must expect and accept greater constraints than those applying to land not at the interface.
2. The balancing task needs to recognise that the commercial zone is the Bridge Road major activity centre (a higher order centre) and that the residential zone is an NRZ. NRZ purposes include recognising areas of mainly single and double storey housing and recognising neighbourhood character and heritage characteristics. The Richmond Hill heritage precinct also applies to this NRZ.
3. The ResCode rear boundary setback standards do not apply. There is neither a DDO, a site specific preferred policy nor a structure plan in or under the scheme to guide height and built form, including boundary setbacks.
4. To assist me to assess the visual bulk impact, I had the benefit of Mr Goss' and Mr Schutt's photomontages, Mr Milner's and Mr Biles' opinions and my inspections.
5. I hesitate to place great weight on either of the photomontages because the viewpoints could be said to represent almost a worst case and a best case scenario to assess visual impact.
6. Mr Goss' viewpoint (figure 1.1) is the south side of Sherwood Street opposite the three-storey apartment building at 27 Sherwood Street about 65 metres from the rear boundary. Its oblique view shows levels 6 & 7 and part of level 5 in the more distant background above the two-storey gabled roof of 25 Sherwood Street and diminutive in comparison with the apartment building at 27 Sherwood Street, which is shown in the foreground at the right hand side. I hesitate to give it weight because it does not greatly help in assessing impact at the interface.
7. Mr Schutt's viewpoint (location 1) is much closer to the actual interface and is in the rear garden of 21 Sherwood Street about two metres north of the rear wall of the house. It shows levels 2, 3 & 4 and part of level 6 above the outbuilding on the rear boundary. As it is close to the dwelling rather than the rear boundary, the concealing effect of the outbuilding and rear fence is minimised.

1. The same viewpoint in the rear garden of 23 Sherwood Street would potentially show a greater impact because there is no outbuilding on the rear boundary.[13] It is unsurprising that the visual impact of the building is much greater in Mr Schutt's photomontage, if only because the viewpoint is much closer to the building.[14]
2. Mr Milner's opinion is that the effective zero setbacks at levels 1 to 3 are acceptable but the visual impacts of levels 4 to 7 from the viewpoint in Mr Schutt's photomontage is 'highly imposing' and 'unacceptable' and from broader viewpoints in the Richmond Hill heritage precinct the building would be a 'notable imposition' and a 'dominant form'.
3. Mr Milner's opinions are based in part on what he considers are the scheme's built form objectives for the Richmond Hill heritage precinct. I do not agree with him about the relevance of those objectives. As the land is in the Bridge Road heritage precinct and not in the Richmond Hill heritage precinct, the objectives for the latter have little relevance.
4. Mr Biles' opinion is that there is effectively a four-storey wall on the rear boundary that is 'relatively tall'. His sight line diagram shows the level 4 terrace balustrade and top of the level 4 wall, none of level 5, the level 6 terrace balustrade and top of the level 6 wall and the top of the level 7 wall able to be viewed from Mr Schutt's 'worst case' viewpoint above the ridge of the outbuilding. Nonetheless, in Mr Biles' opinion, the visual impact is acceptable because, from this viewpoint, only two and a half levels will be apparent from above the outbuilding from Mr Schutt's location.
5. I agree with Mr Milner that levels 1 to 3 are acceptable being on or close to the rear boundary in a major activity centre where the boundary is separated by a 4.47 metres wide lane from residential land. The acceptability of the impact is therefore determined by the impact of levels 4 to 7.
6. I prefer Mr Biles' opinion that the impact is acceptable because from the viewpoint of the rear garden close to the living rooms at 21 & 23 Sherwood Street, those four upper levels are well setback so that only the balustrade of level 6 is apparent, other than insignificant points of the tops of the walls of levels 4, 6 & 7.

1. For development in a C1Z at a residential zone (eg NRZ) interface, the scheme requires consideration of shadow impacts.[15]
2. The ResCode standard relating to impact on secluded private open space between 9 am and 3 pm at the equinox is a useful starting point for assessment. Renaissance's shadow analysis shows the following impacts on secluded private open space:
   • 21 Sherwood Street: 9 am (nil), 10 am (small impacts within existing shed and fence shadows), 11 am (0.3 square metres additional shadow near rear fence), 12 pm, 1 pm & 2 pm (impacts within existing shed and fence shadows), 3 pm (nil).
   • 23 Sherwood Street: 9 am, 10 am (nil), 11 am (0.15 square metres additional shadow near rear fence), 12 pm, 1 pm & 2 pm (impacts within existing shed and fence shadows), 3 pm (nil).
   • 25 Sherwood Street: 9 am to 3 pm (nil).
3. The analysis also shows no impact on the secluded private open space of dwellings further to the west at 11 & 13 Sherwood Street. Other impacts fall on areas that are not secluded private open space such as parking areas at apartment buildings at 15 Sherwood Street and 2 Rotherwood Street, and open areas at the rear of land nearby in the C1Z.
4. The impacts on 21 & 23 Sherwood Street are well within the ResCode standard and are acceptable.

1. For development in a C1Z at a residential zone interface, the scheme also requires consideration of overlooking impacts.[16]
2. The ResCode standard relating to impact on secluded private open space and north-facing habitable room windows within an arc of 9 metres is a useful starting point for assessment. The dwellings at 21, 23 & 25 Sherwood Street are potentially affected.
3. At level 1, the plans show a 700 mm deep shelf screen extending horizontally from the top of the 1.5 metres high full-width, south-facing, translucent balustrade to the two rear terraces. While this does not prevent longer range views into the living areas of 21 & 23 Sherwood Street (disregarding intervening vegetation and pergola structures), the treatment prevents all unreasonable overlooking into the two rear gardens.
4. The plans do not show a similar balustrade and horizontal shelf for the similarly configured south-facing terraces at level 2. A standard one metre high glazed balustrade is shown. Obviously, the view into the rear gardens is more downward than for level 1, but I agree with Mr Biles that a similar treatment is warranted.

1. At level 3, the one metre high balustrade is set back 1050 mm from the rear boundary. The nine metre long downward view extends over the boundary into the rear gardens but is more than nine metres at the point it reaches the rear garden surface. If I had been minded to grant a permit, I would have included conditions requiring some treatment at this level, most probably a 350 mm wide horizontal shelf.
2. At levels 4 to 7 the view angles and the distances are such that no treatment is required.
3. I agree with Mr Biles that the only other potential overlooking is between apartments in the building between habitable room windows about 6.6 metres apart in a number of levels in the courtyard on the west side boundary and to possible future windows or balconies in development of 52 Bridge Road. This potential overlooking is satisfactorily addressed in the plans by the use of translucent glass.

1. Having regard to the key issues of visual impact, overshadowing and overlooking, the built form at the residential interface to the south is not a sufficient reason to refuse a permit.

1. The Pelaco sign (the sign) sits atop the former Pelaco factory in Goodwood Street, and is located about 350 metres east of the subject land. See figure 4, below.[17]

Figure 4 - Location of Pelaco sign (red circle at top) and subject land (red circle at bottom)

1. The sign is of State heritage significance.[18] The sign is also of local heritage significance.[19] It is a double-side sky sign with internally illuminated box letters, erected in 1939.

It is what I estimate to be about 12 metres long and, on a north-south alignment, it projects to the east and west. It is historically important for its association with a well-known shirt manufacturer and socially important in representing Richmond's former role in manufacturing clothes and textiles. Its prominence is enhanced by its location on the Richmond Hill. The former Pelaco factory sits on land that is about eight metres higher than the subject land. Figure 5, below, illustrates its prominence.[20]

1. None of the parties in this proceeding are claiming the proposed building will impact on the heritage significance of the sign. Rather, the dispute is about whether the proposed building will impact on views to the sign and whether this is acceptable having regard to relevant built form policy.

1. It is built form and urban design policy in the central Richmond neighbourhood (ie between Swan Street and Bridge Road) that 'the visual prominence of the Pelaco sign' be maintained in accordance with the 'landmarks and tall structures' policy (the landmarks policy).[21]
2. The landmarks policy identifies the Pelaco sign as one of five 'landmark' signs.[22] The Nylex sign in Cremorne is also one of the five landmark signs and I will refer again to that sign later.

The landmarks policy and its objective is to maintain the prominence of Yarra's valued landmark signs.[23] The policy goes on to provide that development 'should protect views' to landmark signs.[24] I observe the policy does exempt any types of development.

1. The impact of the building upon the visual prominence of the sign was not addressed in the planning report submitted by Renaissance to the Council and was not addressed in the Council officer's report on the permit application. It was not a ground on which the Council refused a permit and the Council did not rely upon it at the hearing. The first and fourth respondents relied on the landmarks policy in opposing the grant of a permit.
2. The Tribunal has considered the landmarks policy on a number of occasions. It did not need to consider the policy to determine the application for a seven-storey building at 18-20 Bridge Road.[25] The Tribunal has previously held:
   • The policy only applies to viewpoints in the public realm and does not include viewpoints from private land.[26]
   • Not every view to landmark signs needs to be preserved and that 'key or important views need to be carefully dealt with, not every incidental view'.[27]
   • Not all views to landmark signs are of equal worth.[28]

1. Mr Goss and Mr Schutt prepared photomontages of the building looking east along Bridge Road.
2. Mr Goss' viewpoint (figure 4.0) is at eye level from the tram stop in the middle of Bridge Road about 20 metres east of Punt Road on the south side of the west-bound tram tracks. According to contour plans, this location is about 1.5 metres lower than the footpath outside the subject land. From this lower point, the buildings on the south side of Bridge Road obscure the sign and hence the proposal does not impact on views of the sign.
3. Mr Schutt's viewpoint (location 2) is at eye level from the footpath at the north-west corner of Hoddle Street and Wellington Parade. This is about 50 metres west of Mr Goss' viewpoint.

1. As this viewpoint is about two metres higher and about 50 metres further away from buildings on the south side of Bridge Road, it is no surprise that the horizon above those buildings is significantly lower and that the sign comes into full view above the facades of the two-storey Victorian era commercial buildings between what I estimate to be 26 to 38 Bridge Road.
2. Mr Schutt's photomontage shows the building wholly obscuring views of the sign from that viewpoint. See figure 6, below.[29]

Figure 6 - Visual impact of proposal on Pelaco sign

1. Viewpoints from within Bridge Road and Punt Road/Hoddle Street west of the land are the most relevant for the purposes of the landmarks policy. I have carefully inspected views of the sign from the public realm south of Bridge Road, including the minor residential streets, public car parks, Punt Road and Yarra Park. From those locations, the view of the sign is either sporadic or partially concealed.

1. Mr Biles, in his witness statement, stated that at pedestrian level within Bridge Road between Punt Road and Lennox Street, existing buildings on the south side of Bridge Road obscure views of the sign, and that as one moves around the streets south of Bridge Road between Lennox Street and Punt Road, the sign slips in and out of view. In the statement, he expressed the opinion that the building will not therefore significantly prevent views of the sign or detrimentally impact its landmark significance. It is apparent that Mr Biles relied heavily on Mr Goss' photomontage.
2. At the hearing, Mr Biles conceded he had not assessed visual impact from Mr Schutt's viewpoint (ie the intersection) and from viewpoints along Wellington Parade, East Melbourne, west of the intersection.
3. I am surprised that Mr Biles did not assess the impact from those viewpoints. Those viewpoints were considered by the Tribunal in Rescom.[30] In that proceeding, the Tribunal considered a proposal to construct a seven-storey building at 172-174 Lennox Street, about 200 metres to the east of the subject land and about 100 metres north-west of the sign.

1. In Rescom, Mr Lovell, one of the permit applicant's heritage witnesses, assessed impact under the landmarks policy. Mr Lovell's opinion was that the landmarks policy sought to protect the 'historical principal heroic views' to the sign.[31] The Tribunal did not dissent from that opinion. Mr Lovell stated those views were from the west side of the intersection in Wellington Parade and in Wellington Parade as far as Berry Street being about 70 metres west of the intersection.
2. Wellington Parade angles to the north-west from the intersection with Punt Road/Hoddle Street. There is a triangular-shaped public open space reserve on the north side of Wellington Parade at the intersection. Ms Trewhella, appearing for objectors, tendered photographs from the reserve purportedly showing the proposed building interrupting the view to the sign.
3. The Tribunal held the viewpoints identified by Mr Lovell and Ms Trewhella were relevant points from which to assess the proposed building under the landmarks policy.[32]
4. In Rescom, the Tribunal considered two photomontages of the proposed building at 172-174 Lennox Street from the corner of Berry Street and Wellington Parade and the tram stop in Wellington Parade at the intersection with Punt Road/Hoddle Street. The Tribunal did not have a photomontage from Ms Trewhella's viewpoint on the footpath on the north side of Wellington Parade.

The two photomontages showed the proposed building (in Lennox Street) north of the viewline to the sign and in no way concealing the view of the sign.

1. The Tribunal relied on those photomontages in finding that the proposed building had no impact on the visibility of the sign. The Tribunal observed that even if it had a photomontage from the northern footpath, it would not have refused a permit because viewlines would be maintained from the two photomontage locations.

1. I agree that the viewlines to be protected in this proceeding are the 'historical principal heroic views' and that those views include those from the locations identified by Mr Lovell and Ms Trewhella in Rescom.
2. I have carefully considered those locations and, in the course of my inspections, I would somewhat widen the relevant area because of the prominence of the sign from the Wellington Parade environs.
3. I would identify that area as starting at the north-west intersection (ie Mr Schutt's view location 2), extending north-west along a line parallel with the north-side footpath about three metres north of the raised stone boundary between the footpath and the reserve,[33] extending south-west across Wellington Parade to the corner of Vale Street, and extending south-east along the footpath back to the intersection, passing Berry Street. In this area, there is a clear viewline for pedestrians and for drivers and passengers travelling east in cars, trams and buses to the whole of the sign.[34]
4. Mr Milner relied on Mr Schutt's photomontage to identify that the viewpoint to the sign is over the central part of the subject land and the view to any part of the sign would be effectively blocked. The extent of this concealment contributes to his overall opinion that the building is a poor response to the scheme's provisions.
5. Mr Milner relies on Mr Schutt's photomontages to estimate that the silhouette view of the sign could only be maintained if the three upper levels of the building were removed. The fourth respondents rely on Mr Milner's and Mr Schutt's evidence in opposing the grant of a permit.

Integrating landmarks policy and activity centre policy

1. In Rescom, the Tribunal correctly identified that the viewlines from the locations relevant under the landmarks policy were longer range views to the sign (which I estimate to be up to about 680 metres) over, in major part, private land in a C1Z and a major activity centre. Under State and local policy, higher density development (including mixed use developments around six or seven storeys) is encouraged in a major activity centre.

The Tribunal stated it brought 'into question the extent to which these views [ie views sought to be protected under the landmarks policy] can and should be maintained'.[35]

1. While the Tribunal did not have to answer that question in Rescom, it is the question that is squarely before me in this proceeding.
2. I have decided that, in this proceeding, I must give weight to the landmarks policy, for the following main reasons.

1. First, the landmarks policy is just that, a policy. It provides that development 'should', not 'must', protect views to the sign. The landmarks policy is not a control, unlike view protection provisions to some landmarks in other schemes such as the Shrine of Remembrance in St Kilda Road. The conflict is not between a control and the landmarks policy. If the encouragement of higher density development in the activity centre was a control, it would prevail over the landmarks policy,[36] but is also a policy (in both the State and local frameworks), so higher density development policy does not prevail for that reason.

Is there inconsistency with a State standard provision?

1. Second, if there is an inconsistency, a State standard provision prevails over a local provision.[37] The policy encouraging higher density development in activity centres is a State standard provision.[38] The landmarks policy is a local provision. Hence, on that basis, the landmarks policy would have to give way.
2. However, it is unclear whether there is an inconsistency. The policy encouraging higher density development in activity centres is not the only relevant State standard provision. It is also State policy to create urban environments with a sense of place and identity and to protect and enhance landmarks.[39] In that sense, there is potential conflict within the State standard provisions. It therefore follows that the scheme as a whole must , as far as practicable, be read so as to resolve the potential conflict.[40]

1. Third, Renaissance submitted that the landmarks policy does not apply to viewing locations outside the area of the scheme, being the City of Yarra.[41] It submitted those locations were in the City of Melbourne and that the landmarks policy is not part of the scheme applying in that municipal district.
2. In my opinion, this is an artificial argument. The protected viewline from those locations is substantially in the City of Yarra. The Tribunal in Rescom was not troubled by assessing viewlines from the same locations. The Tribunal, in Caydon,[42] considered impacts on views to the Nylex sign, being another one of the five signs specified in the landmarks policy. The Tribunal found the impact on viewlines to the sign from the west, from the Yarra River and parkland beyond was acceptable. The river and the parkland was also in the City of Melbourne.

1. Fourth, Renaissance submitted less weight should be given to the landmarks policy because the Council, as responsible authority for administering the scheme, does not oppose the grant of a permit based on any failure to protect viewlines to the sign under the landmarks policy.
2. It is correct that the Council's officers did not assess impact under the landmarks policy and that the Council did not rely on the policy at the hearing in opposing the grant of a permit. I observe that the Council also did not rely on the policy in opposing a permit in Rescom. This submission carries little weight because the Tribunal is assessing the application afresh.
3. The Council's apparent lack of enthusiasm for applying the landmarks policy in this proceeding might be related to the Council's opinion that the relevant viewing locations west of the intersection of Bridge Road and Punt Road/Hoddle Street are not the significant views to be protected. The Council may not agree they are the 'historical principal heroic views'. This opinion was not apparent at the hearing. I agree with the Tribunal's observation in Rescom that it is open to the Council to amend the policy to clarify what views of the sign should be protected.[43]

1. Fifth, Renaissance relied on Mr Milner's opinion that the three upper levels would have to be removed to ensure protection of the viewlines to the sign. Mr Milner's opinion was based on Mr Schutt's two supplementary photomontages which show the building with two and three levels removed. I find those supplementary photomontages unclear in the sense that it is unclear if they support Mr Milner's opinion. Subject to further analysis, it may be the case that sufficient viewlines could be protected with two levels removed in a similar design response.
2. I am cautious to accept Mr Milner's opinion for other reasons.
3. A closer inspection of Mr Schutt's photomontage of the seven-storey building shows that part of the building that is about 20 metres from Bridge Road (ie about the front half of the land) obscures the sign. Hence, a fresh analysis might show that the removal of the whole of any level is unnecessary.
4. As well, a fresh analysis should consider view protection more widely through the Wellington Parade area to which I refer. It might be the case that different levels of concealment might apply in relation to a fresh design response. The degree of concealment from Mr Schutt's viewpoint may be different from other viewpoints in the Wellington Parade areas. As the Tribunal observed in Rescom, the extent of concealment may be less from the other viewpoints in the Wellington Parade area I have identified and the Council may consider the degree of protection overall in that area is satisfactory in a new design response.

1. Sixth, Renaissance submitted that protecting viewlines to the sign from Mr Schutt's photomontage location would yield the result that very little if any land on the south side of Bridge Road between Punt Road and Rotherwood Street could be developed with four or more storeys buildings. It went so far as to submit that it would sterilise large areas of land in the C1Z. It submitted this is contrary to local policy encouraging buildings of around five or six storeys in a major activity centre.
2. This submission lacks balance and perspective. There is no evidence from any viewline analysis tendered in this proceeding that such a sweeping outcome would follow.
3. Even if a part of the land on the south side in this section of Bridge Road could not contain built form higher than three storeys in particular design responses, the submissions fails to take a 'whole of centre' approach and estimate the impact across the whole of the major activity centre. The centre exists on both sides of Bridge Road along most of the length of Bridge Road. The north side of Bridge Road has been recently developed with many higher built forms. The application of the landmarks policy will not impact development in the vast majority of the centre.

1. The proposed building does not protect the relevant significant views to the sign from the public realm and therefore responds poorly to the landmarks policy.

1. I will deal briefly with a few of the other grounds relied on by the parties that were not central to the proceeding.

1. Council's concerns mainly relate to excessively long vertically-oriented windows in the street wall and use of timber-look cladding in the two light court walls which it claims are both contrary to heritage policy. These features are generally consistent with policy and would not warrant refusal of a permit or particular conditions.

Traffic and parking, waste collection and loading

1. A number of respondents are concerned about use of the lane on the west side of 21 Sherwood Street to access the eleven car spaces at the lower ground level. Both Mr Walsh and Mr Gnanakone agreed that the location of parking spaces in Sherwood Street at the lane entrance would require some adjustment to ensure sufficient space to turn into and out of the lane. Subject to resolution of this issue, I find there is no sufficient traffic or amenity reason to refuse a permit on the basis that the lane provides unsatisfactory access.
2. The respondents oppose collection of waste in standard bins from the kerb in Sherwood Street. Mr Walsh's opinion is that bins could be collected from the basement by a mini-rear lift collection vehicle. However, I prefer Mr Gnanakone's opinion that the preferred location for bin collection is Bridge Road with bins being taken from the lower ground storage room via lift to the ground floor and taken through the foyer to the footpath for either Council or private collection outside clearway times. If I had been minded to grant a permit, I would have required a waste collection plan that gave effect to Mr Gnanakone's scheme.
3. The eleven on-site car spaces enable one space for all but one of the six one-bedroom apartments and one space for each of the four two-bedroom and two three-bedroom apartments. Consequently, a waiver from parking requirements is sought for the eleven studio apartments and one of the one-bedroom apartments and the shop, and a reduction is sought from two to one space for the two three-bedroom apartments. I agree with Mr Walsh that, based primarily on his demand assessment and the local policy context, the waiver and reduction is justified.
4. Mr Walsh also recommended some detailed design changes to the ramp and basement layout.[44] If I had been minded to grant a permit, I would have required them to be included by permit conditions.
5. At the time of the hearing of the proceeding, a permit was required to waive the provision of a 27.4 square metre loading bay with specified minimum dimensions for the 194 square metre shop. Mr Walsh recommended the waiver based on the availability of on-street parking on Bridge Road and constraints of the land off Sherwood Street. The waiver was not in serious contention. On 16 January 2018, the scheme was amended to remove the provisions for loading and unloading and the need for a permit to waive or vary the requirements. Accordingly, although I would have waived the requirements if I had granted a permit, a waiver is no longer required and the issue falls away.

1. The Council and the third respondents contend the proposal fails to provide an equitable spread of development opportunities to land to the east and west. They particularly contend the on-boundary windows on a number of levels in the east and west walls include a number of windows that would be likely to be blocked in future development of that adjoining land.
2. I accept Dr Greenup's uncontradicted opinion that the windows are not needed for acceptable daylight outcomes (an internal amenity issue) and Mr Biles' opinion that they visually activate otherwise potentially visually-dreary side elevations. Mr Bick recommends the windows be fitted with fire-rated glass bricks. Mr Biles recommends a permit condition requiring a section 173 agreement to ensure the windows can be covered over in any future development. The Council opposes the condition. If I had been minded to grant a permit, I would have included the condition.
3. Dr Greenup otherwise recommended some detailed design changes to all floor levels including the roof plan, but excluding the two lower ground levels.[45] The design changes were not in contention and if I had been minded to grant a permit, I would have required them to be included by permit conditions.

1. It follows from the other reasons that I find the proposal responds satisfactorily to strategic policy and provides an acceptable interface to the residential area to the south and is an acceptable design response having regard to various factors that have been unnecessary to assess in detail in these reasons. However, the proposal responds poorly to heritage policy and landmarks policy.
2. The task that the Council and, on review, the Tribunal must carry out under clause 10.04 of the scheme is to balance the responses to potentially conflicting relevant objectives of the scheme in favour of net community benefit and consider whether, despite some unsatisfactory responses to relevant provisions of the scheme, the proposal is an acceptable planning outcome. I find the proposal's unsatisfactory responses to heritage policy and landmarks policy does not result in a net community benefit. Those responses cannot be remedied by permit conditions.
3. For the above reasons, the Council's decision will be affirmed. No permit will be granted.

[1] As stated later in these reasons, this clause was a permit requirement at the time the Council made its decision and at all times during the various days of hearing. However, before the date of this decision, the scheme was amended and the clause is no longer a permit requirement.

[2] The submissions and evidence of the parties, any supporting exhibits given at the hearing and the statements of grounds filed have all been considered in the determination of the proceeding. In accordance with the practice of the Tribunal, not all of this material will be cited or referred to in these reasons.

[3] Dreaming Investments Pty Ltd v Yarra CC [2013] VCAT 1296.

[4] These three parcels are the subject land, 18-20 Bridge Road and 52 Bridge Road.

[5] Yarra Planning Scheme cl 22.02-5.7.1.

[6] Yarra Planning Scheme cl 22.02-5.7.2.

[7] For example, I inspected the roof top terrace of the Mountain View Hotel located about 20 metres to the east on the south side of Bridge Road on the corner of Rotherwood Street. It enjoys extensive views to the west towards the city skyline. The proposed building will have a significant impact from the terrace but I characterise the impact as more an amenity impact than on the heritage significance of the precinct.

[8] The photomontage has been copied and resized to fit this document and is therefore different from the original. It is included only for illustrative purposes.

[9] Dreaming Investments Pty Ltd v Yarra CC [2013] VCAT 1296 [24].

[10] In fact, the boundary of the C1Z and NRZ is along the mid-point of the width of the 'dead end' section of lane.

[11] For convenience, I will now refer to the lower ground as level 1, the ground floor as level 2, the first floor as level 3, the second floor as level 4, the third floor as level 5, the fourth floor as level 6 and the fifth floor as level 7.

[12] In more detail, the rear boundary setbacks (to the nearest points of rear walls) are as follows. Zero at level 1; 1.6 metres at levels 2 & 3, excluding a 1.6 metres wide full-width terrace that is built to the rear boundary; 2.6 metres at level 4, excluding a 1.75 metres wide full-width terrace; 8.66 metres at levels 5 & 6, excluding a 1.6 metres wide full-width terrace, except for a two metres long section at the western end; and 11.6 metres at level 7, excluding a 1.6 metres wide terrace that is 6.5 metres long and centrally located.

[13] I suspect a photomontage from the same viewpoint in the rear garden of 23 Sherwood Street would not have been of equal assistance because of the concealing effect of the denser vegetation. Visual impact is not normally assessed with existing vegetation because it is not part of the existing built form.

[14] There was some controversy at the hearing about a 15% tilt in the camera in Mr Schutt's photomontage. Mr Goss was called to give evidence about the preparation of Mr Schutt's photomontage, referring to it as an unreliable and non-standard practice.

[15] Yarra Planning Scheme cl 34.01-8. As the permit application was made before the approval of Amendment VC136 to the scheme, the objectives, standards and decision guidelines for an apartment development do not apply.

[16] Yarra Planning Scheme cl 34.01-8. As the permit application was made before the approval of Amendment VC136 to the scheme, the objectives, standards and decision guidelines for an apartment development do not apply.

[17] Source: Written submissions on behalf of fourth respondents, page 5.

[18] Victorian Heritage Register under the Heritage Act 2017, number H1149.

[19] Yarra Planning Scheme cl 43.01 schedule HO259.

[20] Source: Written submissions on behalf of fourth respondents, page 7.

[21] Yarra Planning Scheme cl 21.05-2 objective 17 strategy 17.3 & cl 21.08-10. Figure 23 to cl 21.08 identifies the location of the Pelaco sign.

[22] Yarra Planning Scheme cl 22.03-4.

[23] Yarra Planning Scheme cl 22.03-2 & cl 22.03-3.

[24] Yarra Planning Scheme cl 22.03-4.

[25] Dreaming Investments Pty Ltd v Yarra CC [2013] VCAT 1296.

[26] Genser & Associates (Aust) Pty Ltd v Yarra CC [2007] VCAT 2261 [29]. This decision considered impacts on views to the Nylex sign.

[27] Cremorne Corporation Pty Ltd v Yarra CC [2008] VCAT 1202 [50].

[28] Richmond Icon Pty Ltd v Yarra CC [2011] VCAT 2175 [66]. This decision considered impact on views to the Nylex sign.

[29] The photomontage has been copied and resized to fit this document and is therefore different from the original. It is included only for illustrative purposes. The upper image shows existing conditions. The sign is rather difficult to see against the pale sky but is located above the buildings in the centre of the image. The lower image shows the proposed building.

[30] Rescom QED Lennox Street Pty Ltd v Yarra CC [2013] VCAT 1799.

[31] Rescom QED Lennox Street Pty Ltd v Yarra CC [2013] VCAT 1799 [54].

[32] Rescom QED Lennox Street Pty Ltd v Yarra CC [2013] VCAT 1799 [55].

[33] Beyond the line three metres north of the stone border, the view to the sign is obscured by vegetation in the reserve.

[34] This area is a somewhat larger than the relevant area identified by Mr Milner in cross examination.

[35] Rescom QED Lennox Street Pty Ltd v Yarra CC [2013] VCAT 1799 [60].

[36] Planning and Environment Act 1987 s 7(4)(b)(ii).

[37] Planning and Environment Act 1987 s 7(4)(b)(i).

[38] Yarra Planning Scheme cl 11.03-2.

[39] Yarra Planning Scheme cl 15.01-1 & cl 15.01-2.

[40] Planning and Environment Act 1987 s 7(4)(a).

[42] Caydon Cremorne No. 1 Development Pty Ltd v Yarra CC [2016] VCAT 1177 [18].

[43] Rescom QED Lennox Street Pty Ltd v Yarra CC [2013] VCAT 1799 [59].

[44] Mr Jason Walsh, statement of evidence, 23 June 2017, page 19 & Appendix C.

[45] Dr Phillip Greenup, statement of evidence, 23 June 2017, pages 17-17 & Appendix C.