Richmond Icon Pty Ltd v Yarra CC

Richmond Icon Pty Ltd v Yarra CC - [2011] VCAT 2175 - VCAT 2011 case summary — Zoe

[61]

Before turning to the built form issues, we feel it is necessary to comment on the matter of heritage, particularly as it was a point raised by the Council each time it described the built form context of Swan Street (as much of this streetscape is in a Heritage Overlay).
The site is affected by two Heritage Overlays. HO360 is a site specific heritage control relating to Dimmey's and HO335 applies to a heritage precinct that comprises both sides of Swan Street, from the railway overpass to the west to Brighton Street (east of Church Street) to the east, and it includes the whole of the Dimmey's site. As Dimmey's is included on the State Heritage Register (H22184), no planning permission is required under the Heritage Overlay for demolition, building or works[9].
The Executive Director of Heritage Victoria has granted a permit for the proposed demolition, buildings and works (Permit No. P15249, July 2010, since amended on 5 May 2011) with endorsed plans that are similar to those now before us. Submissions were made that the Executive Director of Heritage Victoria did not give any reasons for his decision, so there cannot be confidence about what matters were considered. That is not entirely correct as the Heritage Act 1995 specifies matters that must be considered[10], therefore we can have confidence that these matters were considered. It is the discretionary matters[11] about which none of the parties are any the wiser as to whether they were considered by the Executive Director or not. In any event, a permit has been issued by Heritage Victoria and no planning permission is required under the Heritage Overlay.
Before this hearing, Deputy President Gibson made an order on 12 April 2011 that no party may rely upon heritage related matters or make submissions about heritage at the hearing. In reality, we appreciate that the heritage significance of Dimmey's and of the heritage precinct is difficult to entirely separate from submissions and expert evidence about the appropriateness of the proposed new tower having regard to urban design and built form issues. Nevertheless, our consideration of the merits of this proposal has focused upon the appropriateness of the design having regard to the surrounding built form context and the relevant local planning policies, and not heritage significance.

[87]

We had two opposing views of the glass tower's architectural excellence from two architectural experts: Professor Reed and Mr Deutscher.
Professor Reed concluded this site is able to support a higher building, but not this one. She suggested it would be appropriate to place a taller structure on an east-west alignment (rather than north-south as proposed) at the rear of the site. She had no objection to a tall tower, subject to it achieving architectural excellence. She did not object to its closeness to the ball tower but, rather, considered that a new tower should be a landmark in its own right.
However, although acknowledging the wider range of issues relevant to any assessment of the glass tower, Professor Reed's opinion specifically focussed upon its appearance. She criticised the tower's architectural quality by describing it as "banal" and the design as "driven by no idea". In her view, the glass tower's proportions "are quite wrong" and its side elevations "have no finesse in their scale". Professor Reed suggested the design is better suited to an outer suburban office park and "it would be irreparably damaging to the existing character" of Swan Street. She was also critical of certain details of the internal layout including the residential foyer, the single lift, the few dwellings with a northern orientation, and the waste management system. In oral evidence, Professor Reed implied that the design reflected a lack of talent, was a "lump" without the necessary complexity, and would be "destructive" of its environment. She expressed the view the relatively smooth façade of the glass tower would conflict with the fine grain of the heritage streetscape of Swan Street.
Mr Deutscher focussed on a concept of architectural quality based on a design's response to a wide range of contextual, regulatory and functional issues. As Mr Deutscher put it, a building's appearance is only one of many issues relevant to assessing its overall architectural quality. He illustrated this point by referring to the design principles established by the Centre for Architecture and the Built Environment (CABE) in the UK. These design principles involve subjective professional assessments about how a design responds to a series of design principles: character, continuity and enclosure, quality of the public realm, ease of movement, legibility, adaptability and diversity.
We agree that a range of contextual, regulatory and functional issues come into play in considering the merits of a particular design, including whether subjectively it is of architectural excellence. Hence, the balance of our consideration of the merits of the tower endeavours to balance the contextual, regulatory and functional issues. In doing so, we have given greater weight to Mr Deutscher's evidence.
Mr Deutscher's opinion of the architectural quality of the glass tower was the opposite of Professor Reed. Mr Deutscher's opinion is the glass tower design and its setbacks reflect an appropriate response to its setting. He considered the setbacks[20] and curtain wall create a 'calmness' to the glass tower that is enlivened by the patterns within the glazing's colours, vertical fins and random balcony openings. In forming this view, Mr Deutscher relied upon images prepared for him prior to this hearing[21]. We agree with Ms Brennan these images provided a greater level of detail than that contained in the permit application documentation, and we have found them both informative and helpful in understanding the intricacies of the design. Mr Deutscher stated the detail of the glazing is critical to the design and we agree with Mr Deutscher that it is important to 'lock in' the general patterning and colour of the glass as part of the planning permit.

[95]

Many of the experts before us agreed the key or important views were those from Swan Street, particularly looking west toward the ball tower. Mr Czarny was the only expert who formed the view the proposal was unacceptable having regard to clause 22.03. Mr Biacsi, Mr Deutscher and Professor Reed concluded the new tower will not unreasonably impact upon the landmark status of the ball tower. We are persuaded particularly by Mr Deutscher's analysis that:
- There are relatively few places from which the ball tower can be well viewed and that not all views are of equal worth;
- Swan Street views are critical to its public appreciation; and
- Views of less or little value include the view from White Park, to the south across the railway line, a park that by comparison has relatively minor use and from which the ball tower, while visible, is not a critical skyline feature.
We also note that Professor Reed had no objection to a taller building across the rear of the site, a location that would have more effectively closed off southern views of Dimmey's ball tower.
The view analysis submitted with the application (in the urban context report) demonstrates how the generous setback of the proposed new tower from Swan Street ensures the two tall elements will be distinct in the majority of the views along Swan Street. Indeed, there will be a number of views along Swan Street where the ball tower will be seen without any view of the glass tower. We agree with Ms Brennan the new tower may form a backdrop to the ball tower when standing in various locations on the opposite side of Swan Street looking south (including other streets that run north-south off Swan Street). However, we are of the view the ball tower will remain, even then, the principal built reference as it is in the foreground and has significant detailing that will contrast with the 'calm' glass facade.
We therefore conclude that the proposed 10 storey glass tower is acceptable in terms of its relationship with the Dimmey's ball tower.

[116]

We have already mentioned the AAAC draft guidelines. Other documents that were also referred to during the hearing included:
- NSW Interim Guideline for the Assessment of Noise from Rail Infrastructure Projects that contains a noise criteria of 35dBA Leq at night in sleeping areas and 40dBA Leq for other habitable rooms;
- Queensland Code of Practice - Railway Noise Management (November 2007) that nominates 87dBA Lmax as a guide for external noise assessment;
- A Noise Technical Fact Sheet (16) produced by Adelaide City Council that nominates a maximum intermittent noise level of 50dBA Lmax;
- Australian Standard 2107-2000 that recommends indoor sound levels for traffic noise and services noise in sleeping areas of 30-35dBA Leq and in living areas of 30-40dBA Leq; and
- Schedule 12 to the Melbourne Planning Scheme Design and Development Overlay that applies a maximum noise level of 45dB in habitable rooms when music is emitted from the Docklands stadium.
What this demonstrates to us is the variations in the internal noise levels to be achieved for a variety of noise sources including railway noise. The two more recent Tribunal cases have applied 55-60dBA Lmax or less. The material before us specifically relating to railway noise impacts upon this site agree on 60dBA for living areas but seek either 50 or 55dBA for bedrooms.
Mr Tweedie stated sleep disturbance criteria should be adopted in this case as the NSW criteria (May 1999) has been accepted in many cases[35] and the policy is commonly applied, particularly:
- Maximum internal noise levels below 50-55dBA are unlikely to cause awakening reactions; and
- One or two noise events per night, with maximum internal noise levels at 65-70dBA are not likely to affect health and well being significantly.
We find each case will need to be assessed on its own merits to determine what the internal noise level should be as there will be variation in the number of railway tracks, the number of trains passing by, the types of trains passing by and the nature of the noise on the tracks[36]. In this case, there are a number of railway tracks including splitting tracks, a high frequency of trains that utilise these tracks, and the proposed design has placed a number of bedrooms in the apartments closest to these tracks. Given these circumstances, we are of the opinion the internal noise level should be based on an Lmax criterion because it is the noisiest event in a set period rather than the average of all of the events over the period (the Leq). We consider the important amenity to be protected is that during the sleeping period when background noise levels are less and noise disturbance is likely to have the greatest impact on residential amenity. We have decided to apply an internal 50dBA Lmax criterion to the bedrooms in this case.
In applying this criterion we are cognisant of Mr Marks' acknowledgment during his cross-examination that the predicted noise levels at the external facades of the south facing apartments are well above his recommended 55-60dBA internal levels. Mr Marks stated residents will not be able to open windows without the potential for sleep disturbance unless they get used to it (which can happen). Similarly, the use of the terraces during the day or night will be exposed to the predicted external noise levels, but we consider this is acceptable as it is part and parcel of choosing to live in a location adjacent to a railway corridor.

[130]

Mr Phillipson expressed a similar concern, particularly as the proposal seeks to reduce the standard residential car parking requirement by 81 spaces. He stated this will have a detrimental impact on the housing in the surrounds, given much is 19th-century style buildings where many residents have to park on the streets already. Mr Phillipson suggested 1.5 cars per dwelling would be more realistic or that the number of dwellings contained in the development should be reduced to 57 so that the proposed number of car spaces can adequately accommodate both residents and visitors.
There are 82 one and two bedroom apartments and they are each provided with one car space. We note this accords with the car parking provision sought in clause 55 for medium density housing up to 3 storeys in height. There are 15 lofts that may be used for either office or residential purposes and they are each provided with one car space as well. Ms Dunstan suggested the surplus car spaces (3) be allocated as long term spaces for the lofts, but we will require they be allocated either to an apartment or a loft if a purchaser is interested in having two car spaces.
Mr Tweedie submitted the proposal strikes the right balance between reducing car dependency and recognising the need and desire of residents to own a car, even one that is used less frequently. We find the proposed residential and loft car parking is appropriate due to the proximity of this site to a range of public transport options (particularly trains and trams) and due to its location in a Major Activity Centre near the central city. We note Council has expressed no concerns about the car parking provision. Indeed, if ever there was a location where a greater reduction could have been sought, we think this is such a location (a view also expressed by Mr Walsh).
Mr Phillipson also expressed concern that the commercial car parking is "light" as the traffic report submitted with the planning application suggested between 102 and 118 car spaces would be the parking demand whereas only 74 car spaces are being proposed. Again, we note Council has expressed no concerns about the car parking provision, and Ms Dunstan stated an adequate number of car spaces are provided. The Council is seeking some changes to improve the public car park layout and this may marginally reduce the amount of public car parking but the Council has no concern with this. Mr Walsh's evidence is that the peak demand for retail customers and residential visitors of 127 car spaces will result in a shortfall of up to 53 car spaces at peak times. We are persuaded by his evidence that the car parking surveys undertaken demonstrate there is available public parking to accommodate this shortfall. Ms Dunstan and Mr Walsh also both emphasised the fact that Dimmeys has no car parking on-site at present and this proposal will create a new additional public car parking opportunity for this activity centre.

[139]

Green Street has a pavement width of approximately 8.7 metres that provides a shared traffic lane and marked kerbside parking along each side. The existing traffic in the Friday PM peak hour equates to 51-52 movements[41]. The proposal incorporates a 74 space publicly accessible car park via Green Street, and Mr Walsh anticipates that there will be 256 movements in the Friday PM peak.
Ms Dunstan's evidence report stated this is a significant increase above existing volumes, but there will be adequate gaps to accommodate this traffic at the Green/Swan Street intersection subject to the removal of parking on at least one side of Green Street. Mr Walsh's evidence report stated there will be minor impacts on the intersection with an average delay for right turners on the south and west approaches marginally increasing, but it will continue to operate under 'excellent' conditions. Under cross-examination by VicRoads, Mr Walsh acknowledged there will be a four fold increase in the right turning movements at the intersection. VicRoads expressed concern about the rigour of Mr Walsh's SIDRA analysis and we issued directions after the hearing requiring VicRoads to advise what mitigating works, if any, were required based upon its review of Mr Walsh's SIDRA data of this intersection.
VicRoads subsequently advised its concerns about right turn movements are resolved, but there will be a greater impact on vehicles turning right out of Green Street with a post-development delay of about 2 minutes. VicRoads stated this presents a significant safety risk with drivers tempted to force their way into the traffic stream and the 95th percentile queue along Green Street will be approximately 30 metres. Therefore VicRoads requested on-street parking be removed along both sides of Green Street for a length of 40 metres south of Swan Street to access in and out of Green Street is not hindered.
This request was opposed by Mr Tratt of Green Street, Mr A Harris on behalf of Save Dimmeys, Ms M Drost on behalf of Planning Backlash, the Council and the Applicant. The Council submitted an opinion by Ms Dunstan that VicRoads' assessment is highly conservative and excessive. Ms Dunstan said banning parking on the east side of Green Street will adequately address the concern of VicRoads; enable two-way traffic flow; and accommodate the loading and waste collection requirements of this development. We note this statement is consistent with the evidence she gave during the hearing, and that Council adopts Ms Dunstan's views. The Applicant submitted an opinion by Mr Hunt of Cardno Grogan Richards that concluded by agreeing Ms Dunstan's recommendation "would provide for easier traffic flow" albeit stating it is not essential. We note Mr Walsh's evidence was that it was preferable to remove parking from one side of Green Street and that the critical location is near Swan Street to provide for queuing. Mr Hunt's letter suggests:

[144]

We have some difficulty with this position given the evidence about the significant traffic increase in Green Street generated by this proposal and the acknowledged benefit to be derived from some change to the parking arrangements in Green Street as accepted by the traffic engineers of both Council and the Applicant. We also have some difficulty with the Applicant's reticence to agree to a condition requiring this to be done, particularly when the Applicant agrees to more substantial road works in Byron Street.
If we were to agree conditions cannot or should not be imposed for works to be done in Green Street then it follows that the same should apply to Byron Street. If this were the case, we would have refused this proposal because we are persuaded by the evidence that the existing conditions of Byron Street are not suitable for the two-way traffic of this proposal; and we are not persuaded by Mr Walsh's evidence about connecting the two car parks and having a one-way circulation system that would place further traffic into Green Street.
As the Applicant is agreeable to road works in Byron Street, and the traffic engineers being relied upon by the Council and the Applicant generally agree to the removal of the parking on the east side of Green Street, we consider it is appropriate to require the Applicant to pay for this work in Green Street as a condition of this permit. Like Mr Tweedie's comments earlier in regard to Byron Street, this work is practical, readily able to be implemented and would address reasonable concerns about access and impact upon Swan Street. Any further beautification works that the Council may wish to see in Green Street is a matter for the Council as the road authority for Green Street. Similarly, if VicRoads is of the opinion that further work is required to address the saturation of the Green and Swan Streets intersections after this development is completed; then that is a matter for VicRoads and Council to resolve as the respective road authorities.
We are satisfied that the increase in traffic as a result of this development can be accommodated subject to the identified works in Byron and Green Streets being undertaken and paid for by the Applicant as part of this development.

[148]

The Director of Public Transport (DPT) highlighted the planning scheme requires new development to be planned or regulated near an existing or proposed transport route to avoid detriment to the service, safety and amenity desirable for that transport route in the short and long terms (which is a strategy to achieve the transport system objectives at clause 18.01-2). DPT stated it is therefore clear the existing and future implications of the development upon public transport needs to be taken into account.
In 2007-2008 metropolitan train patronage consisted of 201.2 million passenger boardings and regional train patronage was expected to achieve 11.4 million passenger boardings. The Victorian Transport Plan prepared by the State Government states more than 200 million passengers are carried each year on trains and by 2012-2013 this is predicted to increase to about 300 million trips on trains. It identifies long term projects including upgrading Richmond Station, and Ms Bergin advised this may include a new track between Richmond and East Richmond Stations. She explained the new track may be north of the existing railway tracks, which means it will be adjacent to this site. As such, it is DPT's view that this development must not prejudice this potential as well as the existing tracks and infrastructure.
DPT acknowledges the planning scheme does not contain setback requirements to the boundaries of railway land, but Ms Bergin submitted this proposal comes closer than existing properties along this section of the rail corridor. She explained DPT initially sought a setback consistent with the setback of the existing buildings. This was opposed by the Applicant and so DPT is now seeking conditions regarding the structural integrity of the building in the event of a collision with a train involved in a derailment. These conditions include:
- The engagement of a structural engineer based on terms of reference approved by DPT;
- A structural engineering report on how excavation on this site up to the railway corridor boundary will not prejudice the rail corridor, risk mitigation in the event of derailment; compliance with derailment loadings in AS5100; compliance with clearance requirements in Victorian Rail Industry Operator Group (VRIOG) Standards; and
- Amended plans to implement the structural engineering report recommendations submitted to DPT for approval.
Mr Tweedie opposed the DPT conditions. He stated some of the conditions sought here are unprecedented because they deal with a future possibility (a new railway track). Based on DPT's submission at the hearing, it is unclear when this future track may be constructed. It appears to be linked to the upgrading of Richmond railway station and, again, at this time it is unclear when this work may take place. Hence, there is uncertainty about this future work. Nevertheless, protecting the opportunities for the long term use of the rail corridor is a matter that should be considered pursuant to the strategies in the planning scheme. The principal matters of concern to DPT appear to be a possible derailment and ensuring all structural works are contained on the site and not on the railway corridor land. This generally coincides with matters relevant to the existing railway tracks (albeit we anticipate derailment from a new track that is closer to the building may vary the structural requirements) and Mr Tweedie stated these are matters to be considered at the building permit stage as they relate to issues of structural integrity.
Ms Bergin submitted they will not be dealt with under the Building Act because there is no reference to AS5100 or VRIOG standards. DPT and the Applicant referred to the Building Code of Australia performance requirement that a building must be designed to sustain local damage and remain stable (BP1.1) with various impacts (actions). Ms Bergin stated there is no reference in the list of impacts to train derailments but Mr Tweedie pointed out the list begins with the words "include but not limited to". We agree with Mr Tweedie it is therefore open to the Building Surveyor to consider the stability of the building having regard to its proximity to the rail corridor. Mr Tweedie also stated protection from derailment is a matter for DPT because all existing buildings along the rail corridor are unprotected against derailment and there should not be a piecemeal approach to this by placing such obligations on a specific permit for one property.
Nevertheless, we note it is not uncommon for permit conditions regarding building near a railway corridor to be imposed. Ms Bergin tabled previous Tribunal decisions that include conditions[45] such as:
- No excavation, filling or construction shall take place on or near the common boundary with railway land without prior approval[46]; and
- Detailed engineering design drawings and specifications of works on or near railway land must be submitted to the rail/appropriate government authority for its approval prior to any works being undertaken[47].
We have decided to impose the more generic condition referred to in the second dot point of the above paragraph. Ultimately, it requires the building to be constructed to DPT approval, and the detail of that construction can and should be resolved between DPT and the Applicant at that time, rather than as part of this permit application.

[149]

Two matters were discussed in regard to how to ensure the quality of the design, particularly in accordance with the evidence of Mr Deutscher as to the detail of the glazing and how it will achieve the design outcomes he supported. One matter is 'locking in' the detail of the glass tower as presented to us in the hearing and the second matter is whether an architect needs to be engaged to oversee the achievement of the design outcome.
As explained earlier in our reasons, we have decided to impose conditions requiring the detail of the glass tower to accord with the detail presented by Mr Deutscher. By doing so, it means that any changes to the design by way of changes to the glazing treatment may need to come back to the Tribunal to be approved under section 87A of the Planning and Environment Act 1987.
Mr Tweedie stated there have been inconsistencies in Tribunal decisions about imposing a permit condition requiring an architect to oversee the design outcome. He pointed out the Camberwell cases[48] had highly regarded architectural firms prepare the planning application plans and no such conditions were imposed. However, we note that the Tribunal, in both Colquhoun[49] and CSTP Pty Ltd did impose a condition about employing an architectural practice to oversee the design and construction. Mr Tweedie suggested the delivery of the design quality is dependent upon the architect and a proper project team. In this case, he stated there is a contract with ARUP, whom he described as "a pre-eminent façade consultant".
The Tribunal on occasion has determined that a condition requiring a permit to be supervised by a specified architectural practice is not appropriate[50]. However, the objective to ensure the quality of the design in the planning application is translated into the detailed design and construction phase is appropriate. The Tribunal has also previously determined that a condition requiring a project to supervised by an architect is not normally imposed unless there are specific or special circumstances[51].
In this case there will be two approvals - a planning permit and a heritage permit. We have already stated permit conditions will be imposed locking in the detail of the glass tower and any changes to this may need to come back to the Tribunal for further consideration. We also think the significance of this project to Swan Street and Dimmey's overall is one which can be described as special. It is therefore appropriate for a 'belts and braces approach' by ensuring an architectural practice oversees delivery of the design through the construction phase. We wish to make it clear in our opinion the architectural practice could be either the project architect, Armsby Architects or an alternative architectural firm.
We find such conditions and the heritage permit will provide sufficient certainty that the quality of the design will be translated into the detailed design and construction phase.

[162]

(n) redesigning the ramp to the residential car park providing for sufficient ramp grade, length, and headroom for vehicles to access the car park. The redesigned ramp should generally accord with AS 2890.01-2004 and provide a minimum headroom clearance of 2.2m;

(o) redesigning the ramp to the commercial car park providing for sufficient ramp grade, length, and headroom for vehicles to access the car park. The redesigned ramp should generally accord with AS 2890.01-2004 and provide a minimum headroom clearance of 2.2m;

(p) a clear sight triangle and splay (2.5m wide by 2.5m deep) provided on the corner of the ramp exit to the commercial car park at basement level B1;

(q) a pedestrian sight triangle (2m wide by 2.5m deep) for exiting vehicle from the commercial car park onto Green Street;

(r) columns on the commercial car park within spaces 45 to 60 and 70 to 74 to be located within the design envelope specified in Figure 5.2 of AS 2890.1-2004;

(s) a minimum of two (2) disabled car parking spaces within the commercial car park close to the travelator and lift with dimensions in accordance with AS 2890.6-2009;

(t) plans showing a minimum headroom clearance of 2.2m within the residential and commercial basement car parks;

(u) increased width between car parking space 45 and the column (entrance to the commercial lift and travelator) to a minimum of 3 metres to allow for clear access and egress from the supermarket lobby area at basement level B1;

(v) adequate pedestrian provisions within the commercial carpark to create an efficient and convenient pedestrian thoroughfare between the commercial lift/travelator and the car park;

(w) bollards provided at the stairwells and lifts to shield pedestrians from reversing cars;

(x) a trolley collection area in the eastern side of the commercial carpark;

(y) a minimum of 52 on site bicycle parking spaces, including location, allocation and specification of bike parking;

(z) providing 9 additional bicycle spaces for the commercial use to be provided at Basement level 1 and/or along the frontage of the development to Swan Street;

(aa) opportunities for on-street bicycle parking to cater for retail customers;

(bb) providing an on-site shower and change room facility for employees of the commercial uses;

(cc) pavement treatment to pedestrian exits on Byron and Green Streets;

[178]

Before the development starts, a Construction Management Plan to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the plan will be endorsed and will then form part of the permit. The plan must include the following:
- (a) a pre-conditions survey (dilapidation report) of the subject site and all adjacent Council roads frontages and nearby road infrastructure;
- (b) protection works necessary to road and other infrastructure (limited to an area reasonably proximate to the site);
- (c) protection works necessary for the retained section of heritage buildings including the mural along Green Street;
- (d) remediating any damage to road and other infrastructure (limited to an area reasonably proximate to the site);
- (e) containment of dust, dirt and mud within the site and method and frequency of clean up procedures in the event of build up of matter outside the site;
- (f) on-site facilities for vehicle washing;
- (g) methods for management of noise and general nuisance;
- (h) site security;
- (i) waste and stormwater treatment;
- (j) construction program;
- (k) preferred arrangements for trucks delivering to the site;
- (l) parking facilities for construction workers;
- (m) delivery and unloading points and expected frequency;
- (n) an outline of requests to occupy public footpaths or roads, or anticipated disruptions to local services;
- (o) an emergency contact that is available for 24 hours each day for residents and the Responsible Authority in the event of relevant queries or problems experienced; and
- (p) traffic management measures to comply with the relevant provisions of AS 1742.3-2002 Manual of uniform traffic control devices - Part 3: Traffic control devices for works on roads.
During construction, the following must occur to the satisfaction of the Responsible Authority:
- (a) any stormwater discharged into the stormwater drainage system to comply with EPA guidelines;
- (b) stormwater drainage system protection measures must be installed as required to ensure that no solid waste, sediment, sand, soil, clay or stones from the premises enters the stormwater drainage system;
- (c) vehicle borne material must not accumulate on the roads abutting the site;
- (d) the cleaning of machinery and equipment must take place on site and not on adjacent footpaths or roads;
- (e) all litter (including items such as cement bags, food packaging and plastic strapping) must be disposed of responsibly; and
- (f) all site operations must comply with the EPA Publication TG302/92.
The development, once commenced, must be completed to the satisfaction of the Responsible Authority.
Except with the written consent of the Responsible Authority, demolition or construction works must only be carried out between: 7 am - 6 pm, Monday-Friday (excluding public holidays) and 9 am - 3 pm, Saturday and public holidays. No work is to be carried out on Sundays, ANZAC Day, Christmas Day or Good Friday without a specific permit. All site operations must comply with the relevant Environmental Protection Authority's Guidelines on Construction and Demolition Noise.

[179]

Before the development starts, detailed construction/engineering plans and computations must be submitted to and approved by the Director of Public Transport. All necessary construction control agreements and indemnity agreements must also be in place prior to works commencing. The plans must detail all excavation of the site adjacent to the railway corridor and impacts on the railway reserve.
Prior to the commencement of works, the Rail Operator must be contacted to obtain the conditions and safety requirements of working near an operating railway and live power feeders.
The permit holder must ensure that all public transport infrastructure (including overhead power and supporting infrastructure for both trains and trams) is not damaged during the construction period. Any damage to public transport infrastructure as a consequence of the construction period must be rectified to the satisfaction of the Director of Public Transport at the full cost of the permit holder.
The permit holder must take all reasonable steps to ensure that disruption to train operation within the railway corridor and tram operations along Swan Street are kept to a minimum during the construction of the development. Foreseen disruption to rail operation during construction and mitigation measures must be communicated to Metro Trains and the Director of Public Transport fourteen days (14) prior to such works being undertaken.
No lighting is to be erected that throws light onto the railway tracks or which interferes with the visibility of signals and the rail lines by train drivers.
Building materials (including glass/window treatments) along the rail corridor must be non-reflective and avoid using red or green colour schemes that may interfere with driver operations.
No drainage, effluent, waste, soil or other materials must enter or be directed to railway land or stored or deposited on railway land.
Permanent soil anchors must not be installed on railway land. Temporary soil anchors may be installed to the satisfaction of the Director of Public Transport.
Entry onto railway land is at the discretion of the Rail Operator and the Director of Public Transport and is subject to any conditions imposed.
Any wall which may be permitted to be located on the railway reserve boundary must be cleaned and finished using a graffiti resistant finish or alternative measures used to prevent or reduce the potential of graffiti.

At a glance

Court

Decision date

Source

Judgment (234 paragraphs)

Richmond Icon Pty Ltd v Yarra CC (includes Summary) (Red Dot) [2011] VCAT 2175 (8 November 2011)

Parties

Legislation Cited (2)

Cases Cited (1)