Rescom QOD Lennox Street Pty Ltd v Yarra CC [2013] VCAT 1799

1. By no later than Monday 4 November 2013, the Applicant for Review must advise the Tribunal and the other parties in writing whether it wishes to take up the opportunity to amend the plans of the proposed development, and by what date the amended plans will be prepared.

Mr J Gobbo QC and Mr P O'Farrell of counsel by direct brief.

• Mr P Lovell, building conservation consultant of Lovell Chen;
• Mr B Raworth, conservation consultant and architectural historian of Bryce Raworth Pty Ltd;
• Mr A Walley, traffic engineer of Cardno Victoria Pty Ltd;
• Mr M Negri, town planner of Contour Consultants Aust Pty Ltd;
• Mr D Bullock, director of evolv3design Pty Ltd; and
• Mr M Sheppard, urban designer of David Lock Associates Pty Ltd.

• Mr R Beeston, architect and conservation consultant of RBA Architects and Conservation Consultants Pty Ltd.

Mr S McCarthy appeared in person and on behalf of R McCarthy, L & A Kerr, P & J Pandel, A Baker, M Holden, J Curcio, I Ryder, J Schreiber & G Littlewood and M Palmer

Ms R Syme, solicitor of Corrs Chambers Westgarth appeared on 31 July and 1-2 August; and Ms J Trewhella of counsel instructed by Corrs Chambers Westgarth appeared on 9 September on behalf of Mr J Turnbull.

The site comprises two parcels of land with frontage to Lennox Street and totalling 1,296sqm in area. No. 174 contains buildings formerly used as a funeral parlour. No. 172 contains a part single and part double storey building formerly used as a medical office.

Demolition of all of the existing buildings except for the front façade and part of the southern wall of the Herbert King & Sons Funeral Directors building.

Development of a 6-7 storey building (due to the slope of the land) containing two food and drink premises fronting Lennox Street, 57 residential apartments and two basement levels for 63 car spaces, bicycle parking, storage areas and services.

Section 79 Planning and Environment Act 1987

Commercial 1 Zone[1] (C1Z) at No. 172 and Residential 1 Zone (R1Z) at No. 174

Clause 32.01-1 To use No. 174 for a food and drink premises (café) in R1Z

Clause 32.01-4 To construct two or more dwellings on the land at No. 174 in R1Z

Clause 32.01-6 To construct a building or construct or carry out works for a food and drink premises land use at No. 174 in R1Z

Clause 34.01-1 To use No. 172 for 'dwelling' as the ground floor frontage exceeds 2 metres in width in C1Z

Clause 34.01-4 To construct a building or construct or carry out works at No. 172 in C1Z

Clause 43.01-1 To demolish or remove a building in HO332

Clause 43.01-1 To construct a building or construct or carry out works in HO332

Clause 52.06-3 To reduce the standard car parking requirements for visitors to the dwellings and the food and drink premises

Clause 52.07 To waive the loading bay requirements for the food and drink premises

1. This is an application to review the failure by Yarra City Council ('the Council') to grant a permit within the prescribed time for the demolition of much of the existing buildings and the development of a 6-7 storey building containing residential apartments and two food and drink premises at Nos. 172-174 Lennox Street, Richmond.
2. The permit application was lodged with the Council in December 2012. The application included 59 dwellings, 64 car spaces, 36 bicycle spaces and a proposed sewerage easement. It was publicly advertised and 25 objections were received. In April 2013, this Application for Review was lodged with the Tribunal. In June 2013, the Council determined that it would have refused to grant a permit for four reasons:
   1. The extent of demolition of the individually significant heritage place is inappropriate and excessive and will fail to adequately conserve the historic fabric and maintain the integrity of the place.
   2. The heritage and scale of the development will visually dominate the heritage place and fails to respect the heritage place contrary to the purposes of the Heritage Overlay at clause 43.01 and fails to comply with clauses 21.05-1 (Heritage) and 22.02 (Development Guidelines for Sites Subject to the Heritage Overlay).
   3. The proposed development fails to adequately respond to the off-site amenity impacts on the immediate neighbours to the south through overshadowing and fails to comply with Objective 2.5 and 2.6 of the former Department of Sustainability and Environment's (DSE) Guidelines for Higher Density Residential Development.
   4. The proposed development does not provide an adequate level of internal amenity failing to comply with Objectives 5.4 and 6.3 of the former Department of Sustainability and Environment's (DSE) Guidelines for Higher Density Residential Development.
3. The Applicant then served notice of its intention to substitute amended plans in this proceeding that included reducing the number of apartments from 59 to 57; reducing the number of car spaces from 64 to 63; increasing the number of bicycle spaces; removing the proposed easement; and altering terraces and increasing setbacks from the south. The Council considered these amended plans in July 2013 and determined:

The substituted plans do not adequately address grounds 1, 2 or 4 that Council would have refused the application on but they do address ground number 3.

1. At the start of the hearing, these amended plans were substituted. The parties then presented their submissions and expert evidence in response to these plans, and the reasons for my decision are based upon these plans.

1. Council has no issue with the appropriateness of this site for a new development that is taller than the buildings surrounding it. This site is partly within the Bridge Road Major Activity Centre (MAC) as No. 172 is zoned Commercial 1 and partly adjacent to the MAC as No. 174 abuts No. 172's commercially zoned land[2]. There is strong State and local planning policy support for increased development opportunities on sites with such characteristics.
2. Whilst the residents have expressed concern about the overall height of the development within the existing urban character (including its scale), the Council has no specific concerns with the overall height of the development other than in regard to heritage considerations. The Council's position accords with its local planning policies relating to built form that provide for development that is different to the prevailing low-rise urban form in activity centres and on strategic redevelopment sites[3]. This site falls within both of these criteria. The built form policies contain a strategy that new development should generally be no more than 5-6 storeys unless a design demonstrates specific benefits[4]. The Council did point out that the building varies in height from 6-7 storeys, but this is because of the slope of the land - a fact acknowledged by the Council. Overall, I am satisfied the proposed building height is generally supported by the built form local planning policies.
3. The extent of demolition and the acceptability of the height in a heritage precinct is of concern to the Council, and it is a concern shared by the residents. Having considered this in some detail, I support the demolition subject to the northeast corner of the front building being retained. I also support the height and design of the building from a heritage perspective subject to one change to respond to the heritage significance of the front façade and streetscape.
4. The Council initially refused this proposal partly because of external impacts upon the amenity of the residential apartments to the south of this site. The amended plans have addressed the Council's concerns and this ground of refusal is no longer being pursued. However, the residents to the south and west remain concerned about the amenity impacts upon their properties. With some additional screening, I find the southern interface is acceptable; however changes need to be made to the west interface to address the unreasonable visual bulk impact.
5. Despite modifications to the southern setbacks in the amended plans, the Council remains concerned that the internal amenity being created for the ground and level 1 apartments on the south side of the development are not acceptable. I agree with this concern and find that changes need to be made.
6. The changes that need to be made cannot be dealt with by permit conditions because they have implications for the design detail and the number and size of the apartments. Hence, I have decided to give the Applicant the chance to amend the proposal to address my concerns. If the Applicant chooses not to take up this opportunity, I will order that no permit be issued. If the Applicant does take up the opportunity, I will consider the acceptability of any changes and the views of the parties about the amendments in deciding whether a permit should issue.

1. The Heritage Overlay purpose includes conserving those elements that contribute to heritage significance and ensuring development does not adversely affect the significance of heritage places. The decision guidelines of the Heritage Overlay require consideration of whether demolition and new building and works will adversely affect the significance of the heritage place. In this case, none of the parties raised any concern about the demolition of the existing buildings on No. 172 and the expert heritage witnesses all agree No. 172 has no heritage significance. However, No. 174 is a different story. It is categorised as being an individually significant building/place in the Richmond Hill heritage precinct. Mr McCarthy explained the two key concerns of the residents were the impact of the proposal, including demolition, upon the significance of the heritage place; and the impact of the height and mass of the building upon the urban character of the area. Other matters were raised in the statements of grounds submitted by the residents, but Mr McCarthy highlighted it is the above matters that are the main reasons why the residents say this proposal should be refused. In order to determine the acceptability of the extent of demolition and the acceptability of the new development from a heritage perspective, it is first necessary to understand the significance of the heritage precinct and No. 174.

1. Nos. 172 and 174 are contained within the Richmond Hill heritage precinct, which is a large area extending generally from south of Bridge Road to north of Swan Street, and from east of Punt Road to west of Church Street. These two properties form a small part of the northern edge of a large heritage precinct. As such, the precinct is then broken down into a number of sub-areas. Nos. 172-174 are located at the boundary of two sub-precincts and one other heritage precinct:
   • Nos. 172-174 and other properties fronting both sides of Lennox Street as far as Rowena Parade to the south are in Richmond Hill (north) precinct;
   • The Union Street properties and Mr Turnbull's property at the rear of other Lennox Street properties are in the Richmond Hill (west) precinct; and
   • The Bridge Road properties to the north are in the separate Bridge Road commercial heritage precinct (Heritage Overlay HO310).
2. The Richmond Hill (north) precinct is a predominantly residential precinct located at the rear of the Bridge Road commercial heritage precinct, and it is focussed around the Pelaco building at the top of Richmond Hill. Under cross-examination by the Applicant, Mr Beeston agreed the contribution of Nos. 172 and 174 to the Richmond Hill precinct is reasonably marginal because (as he explained) it is an interface scenario between varying precincts/sub-precincts. The Heritage Overlay decision guidelines require consideration of "any applicable statement of significance, heritage study and any applicable conservation policy".

1. It is common these days for statements of heritage significance to be contained in a planning scheme, however that is not the case here. The Yarra Planning Scheme has a series of documents listed as reference documents in the Heritage local planning policy; and the planning scheme has one incorporated document.
2. An incorporated document is part of the planning scheme and hence carries the same weight as other parts of the scheme[5]. In this case, the incorporated document is Appendix 8 of the City of Yarra Review of Heritage Overlay Areas 2007 ('the 2007 Review') that identifies the level of significance of every building affected by a Heritage Overlay. No. 172 is identified as "not contributory", which is defined in the Heritage local policy as a place that is not individually significant and not contributory within the heritage place. No. 174 is identified as "individually significant" which is defined in the Heritage local policy as "a heritage place in its own right". All of the expert heritage witnesses in this case agree with these identifications.
3. A reference document provides background information to assist in understanding the context within which a particular planning policy or planning control/provision in the planning scheme has been framed. Such documents have a limited role in decision making as they are not part of the planning scheme; and do not have the status of incorporated documents or carry the same weight[6]. In this case, all of the previous conservation and heritage studies undertaken for the City of Yarra and its predecessors as well as "the City of Yarra heritage database" are listed as reference documents.
4. All of the expert heritage witnesses placed greatest emphasis upon the 2007 Review. This is both understandable and appropriate given the 2007 Review forms the basis of the current Heritage Overlay that affects this area. The 2007 Review contains a heritage citation for this sub-precinct that includes a statement of significance.
5. During the hearing, some differences were identified in the wording of the heritage citation for the Richmond Hill (north) area contained in the 2007 Review and the wording of the citation in the Heritage Database. The City of Yarra website contains a section on its "Heritage Database"[7] that states the information on the database "is derived from a study conducted by Graeme Butler and Associates in 2007 for Yarra City Council". Whilst it may be derived from it, Mr Raworth's evidence revealed they are different as:
   • The version of the citation on Heritage Victoria's database in relation to No. 174 describes the development era of the precinct using the terms "primary" and "secondary", whereas the 2007 Review version uses the terms "main" and "a contribution"; and
   • The version of the citation on Heritage Victoria's database in relation to No. 174 contains some additional information at the end that does not form part of the 2007 Review. During the hearing, it appeared this information had been extracted from a 1980s building citation sheet relating specifically to No. 174.
6. The nuances in the meanings behind the differing wording and the relevance and weight of the additional information at the end of the citation were matters of discussion and cross-examination during the hearing. The Council was unable to shed any light on why there were differences and how or when the changes were made. Having regard to all of this, I think there is a real question as to which version should be relied upon. These differences can create confusion and uncertainty for developers, residents and the Council. Further, the nuance of the words contained in a particular version may be important and influential in a particular application. The expert evidence of Mr Raworth certainly sought to rely upon the nuance of the words 'primary' and 'secondary' to explain his views having regard to the Heritage Victoria database version. However, no one was able to explain why this version is different. There is no obvious 'paper trail' of approved amendments to the database through the Council or its officers; and there is nothing to suggest there has been any public consultation process associated with any amendments to the wording. As such, I find greater weight should be given to the 2007 Review version of the statement of significance that formed part of the basis for the current Richmond Hill Heritage Overlay precinct. I note both Mr Beeston and Mr Lovell had regard to this version in forming their opinions.

The Heritage Significance of this Precinct and No. 174

1. In this case there is no dispute amongst the expert heritage witnesses that:
   • The sub-precinct contains Victorian and Edwardian period buildings with some Inter-war buildings and individually significant places of all eras.
   • No. 174 is correctly described as an individually significant building within the precinct[8].
2. No statement of significance was prepared for No. 174 at the time of the 2007 Review. Hence, none of the experts were able to say specifically why this property was designated as being of individual significance. The heritage experts all surmise that it was because of its streetscape presentation in Lennox Street as they agree it is possible for heritage studies to be limited to a streetscape analysis[9].
3. I am persuaded by the evidence of Mr Lovell that No. 174 is best described as an Inter-war building having regard to the works undertaken to it between the late 1890s and 1930s. All three heritage experts acknowledged the further research of No. 174 undertaken and provided to the Council by Mr and Mrs McCarthy some time ago. On the basis of this research, the Council's heritage advisor comments during the processing of the application suggested a new statement of significance for No. 174; and it appears the advisor has then assessed this proposal on the basis of this suggested statement of significance. I give no weight to these comments as the suggested statement has not been through any public consultation or exhibition process; and it is not part of the incorporated document or the reference documentation that informs the Heritage local planning policy.
4. Despite the further research provided to the Council, including the acknowledgement by the Council's heritage advisor of the historical significance of the site's long association with the King family, the Council has not sought to pursue a new statement of significance or in any way modify the extent of control in the Heritage Overlay affecting No. 174. This means the internal structure of the buildings on the site can be removed now without planning permission; and the heritage significance of the buildings on the site is limited to the external structure, e.g. walls and roofing.

1. In simple terms, No. 174 consists of three principal buildings - the front building and chapel (built between the 1890s and 1930s), the middle stables building (built between the 1880s and 1890s), and the rear western stables (built around 1914).
2. Mr McCarthy highlighted only two walls are being kept, which he described as less than 1% in the development. Mr McCarthy said he agreed with Mr Beeston's description of the walls to be retained as a 'skin'.
3. The proposal is to demolish all of the buildings except the front façade and the south side boundary wall of the front building and the middle stables building. The Heritage local planning policy[10] generally discourages demolition of part of an individually significant building unless it can be demonstrated that the removal does not negatively affect the significance of the place. The heritage experts agreed that the mere fact of partial demolition of No. 174 does negatively affect its heritage significance, as any loss of original fabric is arguably a negative outcome. However, in general terms, none of the heritage experts are of the view all of the buildings should be retained. They have each taken a more pragmatic approach to the conserving of the heritage significance of No. 174. Mr Lovell and Mr Raworth are comfortable with the extent of demolition. Mr Beeston's evidence is that more of the buildings should be retained, being:
   • About 9 metres in depth of the front building from its front façade including part of its northern side wall and its roof; and
   • Some of the rear stables, for example the external walls, the loft entry facing the laneway, and at least part of the roof at the north end.
4. At the outset, I agree with and accept the evidence of all the heritage experts that the middle building can be demolished, other than its southern wall, without adversely affect the heritage significance of the precinct and No. 174. What is in dispute amongst the heritage experts is the extent of demolition of the front building and the demolition of the rear stables.

1. Mr Beeston says the extent of removal of the front building results in facadism so more of the roof and the north side of the building should be retained. During Council's cross-examination, Mr Lovell agreed there is a benefit in maintaining the northeast corner of the front building as the chimney does aesthetically contribute to the composition of the front façade. Mr Raworth said the northeast corner is not an essential part of the front building but he has a similar view to Mr Lovell that there could be a benefit in a recessed entry to the new building that enables its retention.
2. As the hearing was broken into two separate sets of hearing days, at the end of the first hearing days I asked the Applicant to provide sketch plans/elevations to illustrate how the northeast corner might be retained and incorporated into the overall development[11]. Plans and a computer model image[12] were subsequently provided illustrating the retention of 2.15 metres of the northern wall from the northeast front corner, which includes the chimney. These plans will result in the loss of two car spaces (one from each basement level) and some minor changes to the size and shape of the front apartments and terraces at levels 1 and 2. The most significant implication is the loss of two car spaces, and I have considered the merits of this separately later in these reasons.
3. I find the retention of 2.15 metres of the northern wall of the front building is a preferable design outcome having regard to the heritage significance of No. 174. I am not persuaded by Mr Beeston's evidence that more of the northern wall or the roof should be retained as the views of No. 174 from the north looking south are largely fortuitous views across No. 172, much of which are limited by the existing signage on No. 172. I agree with Mr Lovell that the return of the northern wall, including the chimney, aesthetically contributes to the appearance of the front building. The retention of this part of the wall will contribute to the continued appreciation of the heritage significance of the front building of No. 174.
4. Whilst the walls and chimneys to be retained may be described by some as a 'skin', the fact is they form part of the exterior façade of the front building. I am satisfied their retention only is an acceptable heritage outcome.

1. Mr McCarthy said this building has the appearance of a stable and is in good repair albeit it is around 100 years old. Mr Beeston said consideration should be given to retaining the boundary walls given it is "clearly of heritage significance"; its northern frontage is visible down the laneway; and it is one of two stable buildings fronting the laneway. However, during the Applicant's cross-examination, Mr Beeston also noted:
   • The view of the north wall of the stables from Lennox Street down the laneway is a fleeting view opportunity; and
   • The boundary walls may be identifiable as having heritage significance but not necessarily by an ordinary person[13].
2. I observed during the inspection that the other stable building in the laneway has had its loft entry modified with glass. I also observed that the existing windows and louvres along the rear west boundary wall of the west stables building have largely been damaged or removed. I brought these observations to the attention of the parties during the hearing/inspection.
3. Mr Beeston suggested further openings could be incorporated into the north and west walls of the stables building if that assisted in their retention. However, I agree with Mr Lovell's evidence that any further openings would need to be limited otherwise they would impact upon the significance of these walls and the reasons for their retention.
4. Whilst the historical information gathered by Mr and Mrs McCarthy demonstrate the link between the stables and the undertaker activities of the King family, in a physical sense there is nothing evident of this. For example, the stables are located partly behind No. 172 and it may not be clear to an ordinary person from the laneway that the west stables building has a connection with No. 174. Whilst the loft door in the northern wall identifies the building as a former stables, this does not clearly demonstrate that the stables was associated with an undertaker's business. The mere fact that the building was a stable is not a particular historical or architectural element identified as forming part of the heritage significance of either No. 174 or the Richmond Hill (north) heritage precinct. I am persuaded by Mr Lovell's evidence that:
   • The stables can be separated physically and architecturally from the front building;
   • They are interesting but not of such importance that they cannot be removed because their external removal does not challenge the reasons for the individual significance of this place.
5. The decision guidelines require consideration as to whether demolition will adversely affect the significance of the heritage place. The evidence of Mr Lovell and Mr Raworth is that, arguably, any demolition of building stock identified broadly in the Richmond Hill (north) statement of significance adversely affects the precinct's heritage significance by the fact of the mere loss of a part or the whole of a building. None of the heritage experts, including Mr Beeston, are saying that the buildings need to be retained in full. Rather, the question in this case is about the extent of demolition. Having regard to the matters explained above, whilst the demolition of the rear stables may have an adverse impact on the significance of the heritage precinct, I am persuaded by the evidence of Mr Lovell and Mr Raworth that the extent of demolition is acceptable. The front façade of No.174 and some of the boundary walls are being retained, which will conserve an acceptable level of the heritage significance of No. 174 as well as contribute to the heritage significance of the precinct.

1. The proposed building is 6 to 7 storeys high due to the slope of the land towards the west. The Council submits a taller building on this site is acceptable if there is an acceptable heritage response. The Council's concerns with the heritage response are that:
   • The three storey street wall of the new building is 1.5 metres higher than the heritage façade of No. 174;
   • The upper levels are visually dominant with what the Council describes as a heavy handed built form; and
   • The facades are complicated and overly busy.

1. Mr Lovell described the proposal as a far more interesting building than the typical glazed block design that is often used to distinguished new from old in development proposals such as this:

To the first and second floors the east and west facades are finished with a folded articulated panel arrangement with shallow projecting fins. The dominant materials are precast concrete and glazing. Above, the third level is finished in a dark zinc cladding. The two top floors are sheathed with a paler zinc clad skin. The structure as a whole presents as a contemporary form with a relatively high level of articulation generated by stepped balcony arrangements, varied fenestration, fins and sunshading devices, and a mixed materials palette. [14]

1. Mr Lovell considers the street wall works very successfully because it steps up in height toward the north. With the retention of the northeast corner of the front building, I am satisfied that the old and new sections of the front elevation of the proposal will sit comfortably together. The difference in the height of the new section will not adversely affect the heritage significance as it is separated by the recessed apartment entryway.
2. Mr Lovell said the upper levels have a neck when viewed from the north and this reduces the bulk. However the neck does not exist on the south side, a side which was acknowledged by Mr Lovell and Mr Raworth as being the "sensitive" view. Mr Lovell described the southern view as "less constrained in architectural presentation".
3. The decision guidelines of the Heritage Overlay require consideration of whether the location, bulk, form and appearance of the proposed building is in keeping with the character and appearance of adjacent buildings and the heritage place; and whether it will adversely affect the heritage significance. Mr McCarthy said the proposed building is like no other new building in the precinct and I agree with him. However, that does not mean it is not in keeping with the adjacent buildings and the precinct; and it does not mean the new building will adversely affect the heritage significance. In my opinion, the term "in keeping with" does not mean new development should be more of the same; and it does not mean there cannot be differences in setbacks, height, shape or materials and finishes.

1. The issue of visibility of the upper levels was discussed and debated through both the submissions and the expert heritage evidence during the hearing. The Heritage local planning policy does not seek additions and new works to be invisible, but rather to respect the significance of the place. There was some discussion during the hearing about whether the general or specific provisions of the policy apply in considering the viewlines and visibility of this proposal. The Council referred to the general policy that encourages additions to individually significant buildings to "as far as possible be concealed by existing heritage fabric when viewed from the front street". The Applicant referred to the specific requirements for commercial and retail heritage places that say new higher elements should be set further back from lower heritage built forms. Whilst there may be some debate about the applicability of these two policy provisions because No. 174 has a long commercial history but is on residentially zoned land, I find the general thrust of both sections of the policy accepts new upper levels will be visible to varying degrees and seeks that they be set back in a manner that is respectful to its context (e.g. residential, commercial or other) and that is respectful of the heritage place.

1. The new building overall is unashamedly modern. The chosen architectural presentation is bold and dominant because of the façade detailing, dark colours and materials. The proposed building may well be different in these aspects to the existing buildings, but it does not automatically mean the proposed building adversely affects the significance of the Richmond Hill (north) heritage precinct. Mr Lovell said the proposal will not enhance the heritage place and it will contrast with its immediate neighbours. He also said:

... The proposal is one which will maintain the contribution which the former funeral parlour makes to the heritage place and the immediate streetscape. It will not impact on the early history of the Richmond Hill, nor will it impact on the pattern of subdivision. It will be visible above surrounding buildings and in views of the Pelaco Factory and sign, but not such that it is considered to compete. [15]

1. I find the modern architectural design response is distinguished from the heritage fabric being retained on the site as well as from the surrounding heritage fabric, and is appropriate.

The Setback of New Development from the Street Frontage

1. Mr Lovell acknowledged a judgement needs to be made about how far back the upper levels need to be from the street frontage, but he does not consider it is necessary to set them further back. Mr Beeston said the greater visibility of higher rear parts at No. 172 is acceptable, but expressed concern that the new building is bleeding down on top of, and is overwhelming the heritage façade of No. 174.
2. Mr Lovell acknowledged in his oral evidence-in-chief that it is important to feel the weight and mass of the new building is not coming down onto No. 174. The plans show:
   • Level 2 (apartment 207) is set back 2 metres from the existing south retained wall and 1.996 metres from the existing east (front) retained wall of No. 174;
   • The level 3 front terraces are set back 5.747 metres is from the south boundary and 2.1 metres from the east boundary (Lennox Street), whilst the level 3 apartments are setback 7.247 metres from the south boundary and 6.571 metres from Lennox Street; and
   • Level 4 and 5 apartments are set back 6.947 metres from the south boundary and 6.571 metres from Lennox Street, with the terraces set back 4.971 metres.
3. Mr Lovell says the dark colour of level 2 (apartment 207) is important to distinguish it from the painted rendered frontage of the heritage façade of No. 174. Mr Lovell expressed the view that increasing the south side setback of level 2 by one further metre would be a subtlety rather than a change of substance. He also said this change would be discernible and, if level 2 became slightly more recessive, it would be his preference. However, Mr Raworth said this is not a useful change particularly when level 2 is already a dark element. He also supports the 2 metre front setback of level 2 because he says its dark appearance makes it less apparent, particularly with the backdrop of the balance of the new building behind it.
4. I agree with Mr Beeston's concern. The design does overwhelm No. 174 because of apartment 207 and the dark glass balustrade to the front (east) terrace of apartment 305. I am not persuaded the two metre setbacks of apartment 207 from the front and side boundaries and the dark colour of apartment 207 and level 3's terrace above create a sufficiently recessive appearance in contrast to the retained heritage façade.
5. I am of the opinion the design of this section of the building needs to change. It is difficult to be specific as to the changes necessary but it appears to me that the majority of apartment 207 needs to be removed and possibly the southern half of the east section of apartment 305's terrace (that sits above No. 174) needs to be modified (possibly in size, shape, colour and/or materials). The outcome that needs to be achieved is the upper levels being of greater recession in form and setbacks (rather than primarily through colour and materials) from the heritage façade of No. 174 in the east elevation.
6. Subject to this change to the design, I am satisfied the new upper levels will be an acceptable design response to the heritage significance of No. 174 and the heritage precinct.

1. The objective and relevant policy statement of the Landmark and Tall Structures local planning policy at clause 22.03 is to maintain the prominence of Yarra's valued landmarks and landmark signs. The design response sought is that "development should protect views to" five identified landmark signs including the Pelaco sign. However, there is no guidance in the policy as to which views of these signs should be protected.
2. The Council did not consider this policy in any detail in its assessment of the planning application. Further, the Council was not able to assist me during the hearing in identifying which views of the Pelaco sign should be protected. Mr Beeston expressed concern about the loss of partial views of the Pelaco sign from the laneway and Union Street to the west of the site; however I am not persuaded these are views that should be protected.
3. I agree with the findings of the Tribunal in Crema Group[16] that the policy is not intended to preserve and protect every possible view from public spaces. The Tribunal found in Cremorne Corporation[17] that key or important views need to be carefully dealt with, not every incidental view; and in Richmond Icon[18] that not all views are of equal worth.
4. Mr Lovell considered this policy because, firstly, the Pelaco sign forms part of an individually significant heritage place and, secondly, it is a planning scheme local policy relevant to "all development". In his opinion, what needs to be protected are "the historical principal heroic views". In this case, Mr Lovell considers the key view of concern is that obtained from the west side of the intersection of Punt and Bridge Roads, namely in Wellington Street between Punt Road and Berry Street.
5. Ms Trewhella provided photographs of a view from the public open space to the northwest of the Punt and Bridge Roads intersection. She submitted pedestrian views of the Pelaco sign from this location will be interrupted by this proposal, and that this view is more important than at the intersection, which is primarily a view from a car. The view lines identified by Ms Trewhella and Mr Lovell are both valid considerations as they are views from public locations being major roads and public open spaces.
6. Two photomontages have been prepared to illustrate the proximity of the proposed building to the Pelaco sign from the viewpoints identified by Mr Lovell. He is comfortable these montages demonstrate the proposed building will have no impact on these views of the Pelaco sign. Mr Raworth did not consider views of the Pelaco sign to be a heritage issue, but observed "thankfully there is no impact". Mr Sheppard disagreed the view identified by Ms Trewhella would be interrupted given the height of the proposed building as shown in the photomontages. I agree with Mr Raworth's comment that even if the proposal had an impact on these views, this does not automatically mean a planning application should be refused.
7. After the hearing, I searched for Tribunal cases where views of landmark buildings and signs have been considered, and there appear to be a limited number. Interestingly, I note the Tribunal recently determined that an eight storey building in Punt Road failed to maintain the prominence of the Nylex sign from various vantage points to the north, but found any non-compliance did not warrant refusal or significant modifications[19]. Also, in considering an identified landmark building in Gore Street Fitzroy, the Tribunal found an opportunistic public view across private land did not diminish the significance or relevance of the view albeit the view did not exist because of deliberate actions to create or preserve it[20].
8. Mr Raworth pointed out there are numerous privately owned parcels of land between the Pelaco sign and Punt Road, including the commercial properties on the south side of Bridge Road, that could be developed with taller buildings that may block or diminish views of the Pelaco sign from the west side of the intersection of Punt and Bridge Roads. He referred to a recent Tribunal decision at 18-20 Bridge Road[21] as an example and pointed out the potential impact upon the Pelaco sign was not raised as an issue at all in that case. This is a fair point to make.
9. The Council's actions in its processing of this planning application and the example referred to by Mr Raworth at 18-20 Bridge Road create some doubt about whether the Council is actively pursuing the achievement of this policy. It is my view that greater guidance as to which public views are sought to be protected in accordance with the policy would assist the Council, the community and developers when considering development proposals.
10. The views highlighted by Mr Lovell and Ms Trewhella are long range views achieved in part over private land, including properties zoned Commercial 1 in a Major Activity Centre. It brings into the question the extent to which these views can and should be maintained when there is an argument that limiting the height of buildings to protect such views is contrary to State planning policies and other aspects of the local planning policies that encourage higher density development in Major Activity Centres.
11. The photomontages in this case demonstrate that the proposed building has no impact upon the visibility of the Pelaco sign from the montage view points. In the absence of montages from Ms Trewhella's viewpoint it is difficult to conclude with accuracy as to what impact the proposed building may have. Even if this view of the sign is lost as a result of this development, I would not refuse this proposal as it is clear from the photomontages that other viewpoints would maintain a view.

1. Mr Turnbull's submission described the site as being near Bridge Road but not on it or in the activity centre; and surrounded by a built form character of generally one to two storeys with a few exceptions. Based on the submissions of the Council; the submissions and expert evidence of the Applicant; and my inspection of the site and surrounds, I am not persuaded that this description captures the urban character. There is a level of complexity to the urban character surrounding this site.
2. This complexity is influenced by the fact that the site has a split zoning. No. 172's commercial zoning either places it within or links it closely to the Bridge Road Major Activity Centre. No. 174's residential zoning means this portion of the site forms part of the interface between the Bridge Road commercial precinct and the residential hinterland.
3. The design response to urban character is very much informed in this case by the identified heritage significance in the extent of heritage controls that affect the site, all surrounding properties and the broader area (another layer to the complexity). I have already made findings about this, including that some changes need to be made to enhance the retention and prominence of the front façade of No. 174.
4. Mr Sheppard identified a range of building heights in the area (another layer of complexity) including:
   • Predominantly 1-2 storeys along Bridge Road;
   • 3 storeys at the southwest corner of Bridge Road and Lennox Street;
   • An emergence of taller development behind the north side of the Bridge Road façade including 10 storeys at 243 Bridge Road, 7 storeys at 231 Bridge Road and up to 11 storeys at 271 Bridge Road; and
   • A mix of larger detached dwellings and 3-4 storey blocks of flats in Lennox Street.
5. I also note that Union Street contains predominately smaller dwellings of 1-2 storeys; and there are a mix of architectural styles in the surrounds. This mix is evident from an inspection of the area and from reading the various heritage precincts' statements of significance.
6. I have already stated that I am satisfied the proposed building height is generally supported by the built form local planning policies in the planning scheme. It is my opinion that the proposed building also responds to the mixed built form character described above. I have already explained that I am satisfied with the modern appearance of the building amongst the heritage characteristics of the area. I am also satisfied with the modern appearance given the mix of architectural styles in the surrounds.
7. Hence, the remaining issues to be considered in regard to the building form and height are the acceptability of any external amenity impacts and the internal amenity being created within the development.

1. Neighbours to the west and south of the site are concerned about the visual bulk, overlooking and overshadowing created by the proposed building.
2. Initially, one of the Council's grounds of refusal was the overshadowing impact to the immediate neighbours to the south and failure to comply with objectives 2.5[22] and 2.6[23] of the Guidelines for Higher Density Residential Development[24] ('the Higher Density Guidelines'). The amended plans increased the set backs from the southern boundary at levels 2, 4 and 5; and provided additional overshadowing analysis. The Council officer report found this ground of refusal was addressed in the amended plans because they achieved "an acceptable outcome" to the south as:
   • Only one first floor terrace to the south would have a reduction in direct sunlight at 10am and 11am, being the terrace at the first floor of the middle building of Nos. 176-178; and
   • The first floor unit at the front northeast corner of Nos. 176-178 would lose direct sunlight into its north facing windows between 12pm and 3pm but receive reasonable sunlight throughout the day as they serve an open plan living area that also has an aspect to the east.
3. However, some of the residents to the south and west remain concerned about the amenity impacts upon their properties, which includes properties to the south not mentioned in the above Council assessment. The accompanied inspection of the site and some of the neighbouring properties during the hearing revealed the intricacies of these interfaces. In this case, these intricacies are difficult to appreciate and consider from plans and photographs, and the inspection was most helpful.

1. Mr Holden, Ms Baker, Mr Ryder and Ms Curcio all have apartments in the rear (western) building at Nos. 176-178 to the south, which are not the units/terraces mentioned in the Council's assessment (described previously).
2. Mr Ryder and Ms Curcio have a ground level apartment (11) and are concerned about the level of daylight they will receive and the impact upon their internal amenity. They say the existing boundary wall between their property and the site "still enables a high degree of ambient natural light".
3. During the accompanied inspection, apartment 11 was not able to be inspected but Mr Holden advised of his understanding that its north facing windows serve living and bedroom areas. These windows are setback about 2 metres from the site's southern boundary wall. The Equinox shadow diagrams illustrate that the existing shadow cast by the boundary wall extends well over the ground floor north facing windows now; and the proposed shadow line will extend higher up the wall but will not change the existing shadow impact upon the windows. Whilst the overall ambient light may be reduced, there is nothing in the planning scheme or the Higher Density Guidelines that requires a design to maintain or respond to the level of ambient light. Rather, the Higher Density Guidelines distinguish between private open spaces and dwellings in regard to sunlight and daylight access. The Higher Density Guidelines design suggestions refer to clause 55 of the planning scheme (commonly known as ResCode) when considering sunlight to private open space, but they do not do the same in regard to north facing windows or daylight access into dwellings. Rather, the Guidelines talk about spacing between buildings and side setbacks "where they are important" for things like solar access. In this case, the shadow impact on the windows remains unchanged. Whilst I accept there may be changes in the levels of ambient light, this is not sufficient reason to refuse this proposal in light of the planning scheme provisions and the Higher Density Guidelines.
4. Mr Ryder and Ms Curcio have also expressed concern that the visual bulk of the proposal is unreasonable when viewed from the "the units to the south". There will be varying degrees of view of the proposed building from the units/apartments to the south depending upon where and at what level the unit is located. In the case of unit/apartment 11, there will be limited to no views of the new building as the existing boundary wall creates a visual barrier.
5. Mr Holden and Ms Baker each have a two storey apartment (17 and 18) above ground level car parking at the rear of the rear building on Nos. 176-178. Ms Baker shares the same concerns about daylight and ambient light as Mr Ryder and Ms Curcio. The Equinox shadow diagrams indicate some additional shadow will be cast into Ms Baker's upper living area at 9am but otherwise the extent of shadow into her dwelling and onto her balcony will be similar to what already occurs. Given this and in light of my previous findings about daylight and ambient light, I find this impact upon Ms Baker's amenity is acceptable.
6. Mr Holden is concerned about overlooking into his upper level living area and balcony; the loss of winter sunlight onto his balcony and into his living area; and the creation of a wind tunnel effect. His interface with the site is different to that of Ms Baker as his upper level and balcony is partially opposite the southern wall to be retained and partially adjacent to an existing lower section of southern wall that is proposed to be removed. As such, Mr Holden enjoys a greater level of sunlight access into the upper level of his apartment.
7. The Higher Density Guidelines suggest sunlight access to a balcony (private open space) should accord with clause 55 of the planning scheme, in which case the consideration is of the shadow cast at the Equinox (March and September) between 9am and 3pm. Clause 55 does not say there should be no shadow impact but rather that there is not significant overshadowing. The shadow diagrams demonstrate there will be a marginal impact in the morning and minor variations in the afternoon. Whilst there will be some loss of sunlight into the upper living area and onto the balcony, I am satisfied this impact is not significant and therefore is acceptable.
8. In regard to wind effects, I note that Mr Holden's balcony is exposed to westerly winds and that will not change as a result of this development to the north. The Higher Density Guidelines include an objective to ensure new tall buildings do not create adverse wind effects; but the associated design suggestions focus upon pedestrian experiences at ground level rather than wind effects on private amenity spaces. In any event, the upper levels of the proposed development have progressively increasing setbacks from the south boundary, which will assist to disperse down draught wind effects.
9. Mr Negri gave evidence that there is the potential for overlooking from some of the apartments toward Mr Holden's balcony and living area. As such, Mr Negri recommended some further screening and/or relocation of windows/balconies to address this, which I agree with.
10. In regard to visual bulk, the sightline drawing in section D of the plans illustrates that Mr Holden and Ms Baker will be able to see levels 4 and 5 and possibly the top part of level 3 from their upper level living areas. Level 4 is set back between 6 and 7.3 metres and level 5 is set back a minimum of 7.5 metres with a raked wall that slopes further away to the north. These setbacks combined with the materials and finishes of the façades and the 1.75 metre setback of Mr Holden and Ms Baker's balconies create an interface that does not result in an unreasonable visual bulk impact.
11. With the proposed demolition of the rear section of the southern boundary wall, Mr Holden will also have a view of the rear section of the proposed building. This is generally a lower element of about three storeys above the car park. Overall, Mr Holden's outlook will change significantly as a result of this proposal but, again, this is not unreasonable in the particular circumstances of the interface between No. 174 and Nos. 176-178. Both properties are or will contain multi-storey apartment style developments. Mr Holden's living area is elevated on an upper level. This assists to reduce any visual bulk impact. In addition, the retention of part of the southern boundary wall assists to reduce the extent of new built form that will be visible. Given this particular immediate context, the change in Mr Holden's outlook is acceptable.

1. No. 180A is a long rectangular property situated to the rear of Lennox and Union Streets properties. It has a north-south alignment with the house quite set back from the property's northern end, where there is a former workshop that has been converted into a studio. The house has a northern living area that is separated from the studio by tiered private open space areas. The studio has six clear glass skylights in its roof as well as large glass windows and doors in its southern wall.
2. Mr Turnbull opposes the proposed development because it will be visually dominant from the northern living areas of the house and from the rear studio; as well as resulting in overlooking of his studio and private open space areas.
3. Mr Negri gave evidence that, having had the benefit of viewing this property during the accompanied inspection, there is the potential for overlooking from some of the apartments into Mr Turnbull's studio and private open space. As such, Mr Negri recommended further screening and/or relocation of windows/balconies to address this. Ms Trewhella acknowledged on Mr Turnbull's behalf that such screening would be necessary and said "there is only so much screening that should be required of a building before it becomes clear that it does not fit within its surrounds and context". The additional screening proposed by Mr Negri is not significant in its extent or visual impact; nor in its impact upon the internal amenity of the proposed apartments. Therefore, I am not persuaded the additional screening would mean the proposal does not fit into its surrounds.
4. The proposed building will cast a shadow over the studio. The shadow diagrams illustrate the sunlight into the skylights will be less in the morning 9am; at 11am there will be a little additional shadow; and at 1pm and 3pm the extent of afternoon shadows will be less than existing shadows. Given this and the fact that the studio also benefits from glass windows and doors facing south, I am not persuaded there will be an unreasonable loss of sunlight or daylight into the studio.
5. Mr Turnbull expressed concern about the demolition of the south wall of the rear stables on the site as this may be a shared wall with his studio or part of the structural support for his studio's north wall. This matter needs to be resolved at the building permit stage of any development. Ultimately, if it is determined that the south rear stables wall on the site should remain, it seems likely that it could be without impacting upon the balance of the proposed development.
6. The proposed building will be visible from Mr Turnbull's private open space areas, but I am not persuaded it will result in a dominating outlook and sense of enclosure. The site is at a higher elevation than Mr Turnbull's house and private areas due to the Richmond Hill slope. Whilst the building will be visible, Mr Turnbull's studio and the set backs of the proposed building from the south boundary that increase from 2 metres at level 1 to in excess of 7.7 metres at level 5 all contribute to a reasonable extent of separation between Mr Turnbull's private areas and the proposed building. The reasonableness of this separation is particularly so when one considers that this is an inner suburban and densely developed area already. Mr Turnbull's outlook will change as a result of this proposal but this change is not unreasonable in the particular circumstances of the interface between the site and No. 180A Lennox Street.

1. Nos. 1, 7 and 11 Union Street to the west have lodged statements of grounds opposing this development. These properties contain single and double storey houses with back gardens, sheds and garages at their eastern ends (closest to this site).
2. Mr and Mrs McCarthy reside at No. 11, which is partly adjacent to the west side of Mr Turnbull's rear studio and does not have a direct interface with the site. Mr and Mrs Pandel reside at No. 7 which has a brick garage across their rear boundary adjacent to the laneway alongside this site. Ms Palmer resides at No. 1 that has a garden area, car space and roller door adjacent to the laneway. They all submit that the proposal is an overdevelopment and results in significant and unreasonably adverse overshadowing and overlooking to the west that is "contrary to relevant standards".

1. It is not clear from their submissions what standards they are referring to. My assessment of the amenity impacts is based upon the Higher Density Guidelines, as they are relevant to a proposed building of this height. Clause 55 is referenced in the Guidelines as a tool or guide to use in regard to considering overlooking and overshadowing. I am satisfied that the screening proposed on the west elevation satisfies objective 2.9 of the Guidelines about the protection of privacy of neighbouring properties. The shadow diagrams illustrate that additional shadow is cast particularly upon Nos. 7, 9 and 11 Union Street at 9am and 10am. It may be that the clause 55 overshadowing of private open space standard is not met for some or all of these properties. I do not intend to make a final judgement about this as I am of the opinion the rear of the building needs to be altered (for reasons that I will explain shortly). What I do wish to highlight for the Applicant is the need to consider the impact of any additional shadow cast upon these properties private open space areas as part of any changes made to the rear of the building.

1. Mr Sheppard gave evidence that he considers, in the context of a Major Activity Centre, the rear setbacks of the proposed building and the added separation provided by the rear laneway is sufficient to avoid an unreasonable visual impact on the Union Street properties. I am not persuaded of this, particularly in regard to the lower levels of the proposed building.
2. The Union Street properties are located close to a Major Activity Centre, but do not currently form part of it as they are in a residentially zoned street, and have a residential zone interface with this site. They also have a low scale built form character with rear private open space areas. There is no evidence before me that this character is likely to change to any significant degree[25]. The built form character of Union Street is different to that to the south in Lennox Street[26], hence a different design response is needed. Whilst a taller building is appropriate for this site, the western interface of the site is sensitive and needs to be respected in the design response.
3. The visibility and associated visual bulk impact of the upper three levels of the proposed building upon the Union Street properties is acceptable. The terraces are at least 7 metres from the laneway and the walls are around 10 metres from the laneway, which means they are set back at least 10 to 13 metres from the rear boundaries of the Union Street properties. These upper western walls are narrower in width and have greater articulation than the western walls of the lower levels. All of these factors create an acceptable interface to the Union Street properties.
4. Mr Sheppard used the height and set back ratios of standard B17 in clause 55 to assess the visual bulk impact of the proposed building upon the Union Street properties. Standard B17 is applied from the property boundary of the proposed development site, and the proposed building would not meet this standard. Mr Sheppard's expert witness statement[27] illustrates standard B17 applied from the west side of the laneway and he gave oral evidence that the lower three levels essentially achieve the built form contemplated by standard B17. This is not correct given standard B17 should be applied from the site boundary rather than the west side of the laneway. In any event, standard B17 does not apply because the building is 6-7 storeys in height and clause 55 does not apply. Objective 2.7 of the Higher Density Guidelines is "to ensure visual impacts to dwellings at the rear are appropriate to the context". It contains illustrations and words about building height and mass scaling down at interfaces with lower residential areas and providing planting zones at the rear as well as articulated facades.
5. The facts that this is an inner urban area and there is an existing wall on the property boundary to a height of around 6 metres creates an opportunity for the proposed building to be built to the boundary. Hence, basement level 1 built to the boundary and the terraces of two ground level apartments extending to the boundary are acceptable. However, the overall presentation of the lower floor levels to the west is not acceptable.
6. Levels ground, 1 and 2 have west elevations that are at least 17 to 19 metres wide across a 21 metre wide site. Levels ground, 1 and 2 contain many walls and screened terraces set back 2-2.5 metres or less. They are largely generic with the use of rendered walls and blade screens. There are variations in the colour of the render but these are not sufficient to achieve a reasonable or acceptable level of articulation across these levels of the building. Overall, I find these levels create an unacceptable visual bulk impact.
7. It is not the role of the Tribunal to redesign the rear interface. The design is a matter best left to the Applicant and its architects. However, to provide some guidance, changes that may need to be contemplated include:
   • Whether greater set backs are needed from the rear boundary for level 2 and possibly level 1;
   • Whether greater set backs are needed for the rear apartments from the south side boundary for levels 2 and 1 to reduce the visual presence of the overall width of the west elevation;
   • Whether greater articulation and/or variations in rear and side setbacks for levels 2 and 1 are needed to reduce the visual presence of the overall width of the west elevation; and
   • Whether articulation that blends levels basement, ground and 1 together and/or blends levels 2 and 3 together may assist in reducing the visual bulk impact.
8. These changes may result in a reduction in the number or size of apartments, but such changes would be acceptable if the design outcome achieved an acceptable interface to the Union Street properties.

1. The Council is concerned about the internal amenity of the south facing apartments and studios on levels ground and 1. The Council considers a consequence of retaining the 6 metre high southern boundary wall is very poor solar access to these apartments. The relevant apartments on the ground level consist of four studio apartments, one one bedroom apartment and one two bedroom apartment; and on level 1, there are four two bedroom apartments. The Council said any argument that the number of north facing apartments "balances out" the poor amenity of the south facing apartments is disputed as each apartment must have access to an appropriate level of amenity and outdoor space.
2. Objective 5.4 of the Higher Density Guidelines is to ensure that a good standard of natural lighting and ventilation is provided to internal building spaces. The design suggestions include providing direct light and air to all rooms wherever possible; and designing light wells that are adequately sized for their intended purpose. In this case, the windows of the ground level apartments and the windows and terraces of the level 1 apartments are set back 3 metres from the existing 6 metre high boundary wall to their south.
3. Mr Negri gave evidence the ground floor apartments need to be set back half the southern wall height (3 metres) in order to meet clause 55's daylight standard, and this is achieved. He said the existing wall is effectively two storeys high and this type of interface (for ground and level 1) is "quite normal" in an inner urban area. I am not persuaded the interface for these apartments is quite normal or acceptable, even in an inner urban area. Internal amenity is derived from a number of factors including but not limited to daylight, ventilation and outlook. Consideration of whether the design of a multi-dwelling, multi-level residential development has optimised the amenity of future dwellings within the parameters of the chosen design (such as dwelling yield, floor area, number of bedrooms, dwelling type, etc)[28] is also relevant. In addition to the existing southern boundary wall, the development creates a predominantly two storey wall 3 metres from the south wall that is in the order of 34 metres in length. Whilst I acknowledge further upper levels have greater setbacks, these setbacks are progressively increased with level 2 set back an additional 300mm to its terraces and an additional 1.2 metres to its walls above level 1. This is a challenging environment in which to create an acceptable level of internal amenity.
4. I find the internal amenity created for apartments G5 to G10 and 108 to 111 is not acceptable. At ground level, daylight and ventilation may be at a minimal acceptable level, but the outlook is poor and particularly so for the very small studios and a one bedroom apartment that borrows light from a further setback area enclosed on three sides. At level 1, the screening of the terraces affects the daylight penetration and outlook for the terraces, living areas and bedrooms of these apartments.
5. I will leave it to the Applicant to consider what alternate solutions may address these concerns. In my view, any redesign should consider:
   • Reducing the number of southern apartments at levels ground and 1; and
   • Changing the size and shape of these apartments including considering the creation of two storey apartments that reduce the need for screening at level 1.

1. The Council also expressed concern about the amenity of apartment 107, which is in the southeast corner of the site with heritage walls being kept to its east and south. The Council said it has very limited access to direct sunlight and daylight because of this enclosure and because of the terrace that sits above part of it for apartment 207. As I have already found apartment 207 should be largely removed from the development for heritage reasons, this will create further opportunities to improve the amenity of apartment 107.
2. There is a proposed 3sqm secondary west terrace to apartment 107 that appears to be necessary in order to create natural light and ventilation into the second bedroom of apartment 107. This is a poor design solution as the 107 terrace is surrounded by the 11sqm terrace directly accessible from apartment 108's living area. This is poor internal amenity for both apartments and they should be redesigned.

1. Whilst the Council has no concern about the proposed car parking provision or resultant traffic in the laneway, the residents did express concern.

1. Mr Turnbull and other residents are concerned the car parking reduction will pose additional problems for residents and their guests given the existing "considerable" difficulties in finding available parking. Mr Turnbull was critical of the fact that Mr Walley's expert witness statement did not include any car parking survey to test the car parking demand.
2. In this proposal, there are three components to the car parking provision - resident parking, resident visitor parking and food and drink premises/café parking.

1. The planning scheme requires 53 of the apartments[29] to each have one car space and 4 of the apartments[30] to each have two car spaces. This is a total of 61 spaces for 57 apartments, which is provided.
2. Earlier in the heritage section of this decision, I noted that keeping more of the front building at No. 174 will result in the loss of two car spaces. The Applicant had no preference whether the loss was from the residential or food and drink premises car spaces. If there is to be a loss, I am of the view it should be from the resident parking as there is limited car parking being provided for the food and drink premises already and it is not uncommon for reduced resident parking to be proposed in developments within or adjacent to activity centres. However, having said that, with the changes I am seeking to the design, I anticipate that the size of apartments may change and the number of apartments may be reduced. Hence, the loss of two resident car spaces may not result in an additional permit requirement and consideration by me (to reduce the resident parking provision) as the loss of some apartments may well mean the resident car parking provision continues to comply with the planning scheme. In the event that further permission is needed to reduce the resident car parking as part of the response to this interim decision, I anticipate that a further traffic engineering assessment would be provided to support such a reduction.

1. The planning scheme requires the provision of 11 visitor car spaces and the proposal is to reduce that to zero. Mr Walley gave evidence that visitor parking on the site is not desirable in this case as it is along a laneway and visitors may have difficulty understanding where the car park entrance is and how to access it. I accept that the car park access off the laneway creates some practicality issues for visitors.
2. It is often put to, and accepted by the Tribunal that peak visitor parking demands are in the evenings and on weekends. I am not persuaded the visitors would all be short term car parkers as visiting a friend or having a meal (for example) may result in a longer stay than 1-2 hours. However, the residents and their visitors will be well aware, or will become aware of the parking restrictions in the area, particularly the lack of longer term parking. Hence, visitors will decide whether to park or travel by an alternate mode of transport. The Council's engineering services referral:
   • Supports no visitor parking;
   • Points out future residents in this proposal will not be eligible to apply for on-street residential or visitor parking permits; and
   • Says on-street parking in the area regularly turns over and visitors should be able to find a space close to the site if they choose to drive.
3. The planning scheme[31] does not specifically require car parking surveys to be done as part of a car parking demand assessment. Even if car parking surveys had been undertaken that showed limited available car spaces during the evenings and weekends, I would not refuse this proposal. Mr Walley's expert opinion is that the peak visitor weekend car parking demand from this proposal will be 6 spaces. Given the significant extent of on-street car parking available in this area, I am satisfied this demand can be accommodated.

1. The planning scheme requires the provision of 10 car spaces for the two food and drink/café premises. The proposal seeks to reduce this to 2 spaces, one for each premises.
2. Mr Walley estimates that approximately 110 seats could be accommodated within the two premises combined[32] and a parking generation rate of about 0.15 spaces per patron/seat[33] is appropriate. This equates to an evening parking demand for up to 17 spaces and a daytime demand that is typically 50% of the evening demand (i.e. 9 spaces). Mr Walley says this demand can and should be met on-street. Again, Council's engineering services have no concern with this reduction, noting in its referral comments that "pedestrian movements along Lennox Street are very high and would form a sizeable proportion of potential customers to the two food and drink premises". I accept the evidence and the views of the Council that it is reasonable to reduce this parking provision to one space per tenancy.

1. Mr Turnbull and other residents expressed concern about the volume of vehicles entering and exiting the laneway from a safety perspective, as well as suggesting it will unfairly prejudice the future development capacity of Bridge Road properties.
2. Mr Walley gave evidence that traffic counts undertaken in June 2013 recorded 3 vehicles in the laneway during the AM peak hour and 5 vehicles during the PM peak hour. He estimates this proposal will generate 22 vehicle movements per hour at peak times. The first 45 metres of the laneway from Lennox Street will remain a single lane two way road, with the balance adjacent to this site being wider creating an opportunity for two vehicles to pass each other. On the single lane section, Mr Walley's opinion is that the chances of two opposing vehicles meeting is less than 1% during both peak periods. If it did happen, practically one vehicle would need to reverse to a point where the other could pass, which could be at the wider section of the laneway or by accessing the rear of properties fronting Bridge Road. Having regard to this evidence, I am persuaded this proposal will not create unreasonable safety implications. In fact, it will result in a greater proportion of the laneway being wider than it currently is.
3. There is no material or evidence before me to suggest that the laneway's environmental capacity[34] is consumed by the vehicles and traffic of this proposal. Hence, I am not persuaded this proposal fetters the future development potential of other properties along the laneway.

1. I have explained that there are aspect of the design that need to change, being:
   1. The retention of the northeast corner of the north wall of the front building at No. 174 in accordance with the plans referenced in footnote 12;
   2. The removal of the majority of apartment 207 and possibly the southern half of the east section of apartment 305's terrace modified in size, shape, colour and/or materials to achieve the upper levels being of greater recession in form and setback from the heritage façade of No. 174;
   3. The rear interface of the building altered to achieve an acceptable visual bulk impact to the west taking into account the changes contemplated in paragraph 98 and the impact of any additional shadow cast upon the Union Street properties private open space areas;
   4. The southern apartments G5 to G10 and 108 to 111 altered to achieve acceptable internal amenity talking into account the changes contemplated in paragraph 104; and
   5. Improving the internal amenity between the terraces of apartments 107 and 108 to an acceptable level as outlined in paragraph 106.
2. If these changes are made, I also suggest that the Applicant make further changes to address other matters that arose during the hearing where it was suggested they be dealt with by permit condition:

1. The removal of the toilet and entry doors for the food and drink premises from the residential apartment entry corridor; 2. The screening of apartment 112 bedroom windows;

1. Apartment 212's second bedroom window in the west wall or otherwise screened;

1. Screening to the terraces of apartments 307, 308 and 407 to limit overlooking to Mr Turnbull/Mr Holden; and 2. Details of the screening to terrace of apartment 111 to limit direction of view toward Mr Holden's balcony.
2. I am of the opinion these changes can be dealt with as part of this application, but cannot be effectively achieved by way of permit conditions as it is important I am satisfied with the final design details. I have provided the Applicant for Review with the opportunity to respond to my concerns by issuing an interim order allowing the Applicant an opportunity to prepare an amended set of plans and elevations. I anticipate that these changes may affect the number, size and type of apartments, which may in turn affect the viability of the proposal. If the Applicant does not wish to amend the design to address all of my concerns, I will order that no permit be issued.
3. I wish to emphasise to the Applicant for Review that this interim order provides an opportunity for the Tribunal's concerns to be addressed, and this order is not an opportunity for further changes (other than consequential changes) to be made to the design.
4. The next step is to ascertain whether the Applicant for Review wishes to take up this opportunity and, if so, how long it will need to prepare an amended set of plans and elevations. Upon receipt of that advice, I will either issue a final decision affirming the Council's refusal if the Applicant does not wish to amend the plans or, if it does wish to take up the opportunity, I will issue further directions:
   • Requiring the amended plans, a written explanation of the amendments made and any associated documentation be served on the Tribunal, the Council and the Respondents;
   • Providing an opportunity for the Council and the Respondents to make further written submissions on the proposed amendments only; and
   • Requiring all parties to advise in writing if they wish the Tribunal to convene a further hearing and, if so, why.
5. Upon receipt of the amended plans and any associated documentation and all further written submissions, I will then determine if a further hearing is required. Ultimately, I will determine if the amendments are satisfactory (with or without a further hearing). If I find the amendments are satisfactory, I will order that a permit be granted subject to appropriate conditions. If I find the amendments are not satisfactory, I will order that no permit be issued.

[1] Before the start of the hearing, the Minister for Planning changed a number of zones throughout Victoria via Amendment VC100 on 15 July 2013 including changing the Business 1 Zone (B1Z) to Commercial 1 Zone (C1Z). Hence, whilst the planning application considered the B1Z, the Tribunal must consider its inclusion now in the C1Z, and the hearing proceeded on this basis.

[2] There were varying views expressed by the parties and the expert witnesses about whether the site is in or adjacent to the MAC. My finding is the differing zoning of the site means that it is both.

[3] Clause 21.05-2 of the Planning Scheme

[4] Strategy 17.2 of clause 21.05 of the Planning Scheme

[5] Some of these words are taken from the explanatory statement on page 2 of the Incorporated and Reference Documents Planning Practice Note (October 2013).

[6] Some of these words are taken from the explanatory statement on page 3 of the Incorporated and Reference Documents Planning Practice Note (October 2013).

[7] Which provides a link from the City of Yarra's website to the Heritage Victoria website's database where the citations are stored

[8] I note Mr Raworth said in his oral evidence-in-chief that it was interesting the site was identified as individually significant by the Council "possibly erroneously", but he then stated under cross-examination that he did not dispute the individual significance identification of the building.

[9] As sometimes there is neither the budget nor the time to undertake a thorough historical analysis of all properties when heritage studies are undertaken.

[10] Its full title is "Development Guidelines for Sites Subject to the Heritage Overlay" local planning policy at clause 22.02

[11] Refer to order 4 in the order issued on 5 August 2013

[12] TP2.01 Rev B, TP2.02 Rev B, TP2.03 Rev B, TP2.04 Rev B, TP2.05 Rev B, TP2.06 Rev B prepared by Metaxas Architects and dated 15.08.2013 and a computer modelled image of the front façade of the development as viewed from a point to the northeast of the site (unlabelled).

[13] As opposed to a person with some heritage expertise or experience

[14] Paragraph 25 of Mr Lovell's expert witness statement

[15] Extract from paragraph 50 of Mr Lovell's expert witness statement

[16] The Crema Group Pty Ltd and Ors v Yarra CC [2011] VCAT 1999 at [64]

[17] Cremorne Corporation Pty Ltd v Yarra CC [2008] VCAT 1202 at [50]

[18] Richmond Icon Pty Ltd v Yarra CC (includes Summary)(Red Dot) [2011] VCAT 2175 at [66]

[19] A Genser & Associates (Aust) Pty Ltd v Yarra CC [2012] VCAT 695 at [38]

[20] Celic v Yarra CC & Ors [2013] VCAT 936 at paragraph [37]

[21] Dreaming Investments Pty Ltd v Yarra CC & Ors [2013] VCAT 1296

[22] Objective 2.5 is "to ensure building separation supports private amenity and reinforces neighbourhood character".

[23] Objective 2.6 is "to ensure areas can develop with an equitable access to outlook and sunlight".

[24] A reference document in the policy guidelines of clause 15.01-2 of the State planning policies for assessing the design and built form of residential development of five or more storeys.

[25] E.g. because of any planning policies related to preferred/future neighbourhood character or strategic studies about the extent of the Bridge Road MAC.

[26] I.e. an apartment style of development up to three storeys in height with balconies/terraces at Nos. 176-178 versus single and double storey dwellings with rear ground level private open space areas in Union Street.

[27] Page 15 of Mr Sheppard's witness statement

[28] This view was expressed by the Tribunal in PDG Corporation Pty Ltd v Yarra CC [2009] VCAT 737 at [6] that was also an inner urban area.

[29] Studios, one bedroom and two bedroom apartments

[32] Based on two thirds of the floor area of each tenancy being available for public seating

[33] Based on interview surveys of a Brunswick Street cafe

[34] The number of vehicles it can accommodate in traffic engineering terms