Railway Noise and Vibration - How to assess the airborne and vibration noise impacts to determine an appropriate internal amenity level for bedrooms and living areas of new dwellings proximate to a railway corridor.

APPLICATION - significant, interesting or unusual use or development; application of policy, provision or principle; or circumstances

The proposal to undertake a redevelopment of the iconic Dimmey's building in Swan Street Richmond has generated considerable public interest and debate. The application culminated in a six day hearing with differing submissions and evidence from the Council, the Applicant, various surrounding land owners, VicRoads and the Director of Public Transport.

This case involves a proposal to undertake alterations and additions to Dimmey's. The most controversial aspect of the proposal is the inclusion of a new glass residential tower that reaches 10 storeys in overall height.

The Council and the objectors hold the view that the glass tower is not a quality design, it is not respectful of Dimmey's clock ball tower, and it will compete with and diminish the ball tower's landmark significance. However, the Swan Street Traders' Association support the proposal and describe it as an opportunity to bring people back into the community.

The Tribunal finds that the tower is an acceptable and appropriate addition to the local area, including the adjacent low rise heritage streetscape of Swan Street. Dimmey's was described in the hearing as a faded jewel. This proposal will rejuvenate and renew this jewel through the proposed new development and the combination of residential, retail and office use of the old and new buildings on the site.

The State planning policies of urban consolidation, housing diversity and affordability; and the social and economic benefits of more retail, commercial and residential land uses in Swan Street are strong and compelling benefits that weigh in favour of this proposal. Swan Street is identified as a Major Activity Centre and State policy encourages intensive housing in such centres.

The local planning policy framework seeks an outcome of pockets of taller buildings amongst a generally low rise built form environment and we find the proposal achieves this policy outcome. The design responds to its context by being different to the surrounds. It has an elliptical form that is simplistic and a glass surface that is calm. These attributes ensure the tower does not compete with the heritage facades of Swan Street or the Dimmey's clock ball tower and reveals the modern structure for what it is.

Beginning at paragraph 80 is an analysis of railway noise and vibration. Each case will need to be assessed on its own merits to determine what the internal noise level from airborne noise 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. Consideration should also be given to the structure-borne vibration induced noise and its impact upon the internal noise level in combination with airborne noise.

Application under section 77 of the Planning and Environment Act 1987; Yarra Planning Scheme; Business 1 Zone; Heritage Overlays HO335 & 360; Proposal to Refurbish Heritage Building and Construct New Buildings containing dwellings and offices extending 2-8 levels above the existing building with associated car parking and loading facilities; The acceptability of the glass tower; Internal amenity; Railway noise and vibration; External amenity impacts; Car parking provision; Traffic impacts; Need to design for possible derailment of train; Need for environmental audit; ESD detail.

VicRoads, A Harris for Save Dimmey's, R. Pinnell, D. Yeomans, B.J. Donaldson, P. Connole, J. Sturzaker, D. Dorow, R. Dunphy, A. Duffield, L. Moloney, P. Kollatos, S. Claney & R. Rixon, J. Grimwade, S. Duffield, C. & G. Katsabis, M. Phillipson & C. Pelham-Thorman, P. Tratt, A.& J. Tratt, Almost French (P. Chhor & K. Kouch), M. Drost for Planning Backlash, D. Cousins, L. Reeves, J. Pearce and M. Fernon.

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

1. The decision of the Responsible Authority is set aside.
2. In permit application PLN10/0734 a permit is granted and directed to be issued for the land at 140-160 Swan Street Richmond in accordance with the endorsed plans and subject to the conditions set out in Appendix A. The permit allows:
   • Construction of a building and construction or carrying out of works, and use of land for the purpose of dwellings and offices (described in the proposal as lofts) in B1Z; and
   • Reduction of the standard car parking requirement for the residential, office and retail land uses.

Mr N Tweedie, barrister instructed by Best Hooper solicitors

• Mr A Biacsi, town planner of Contour Consultants;
• Mr R Deutscher, architect of Woods Bagot;
• Mr J Walsh, traffic engineer of Cardno Grogan Richards; and
• Mr T Marks, acoustic engineer of Marshall Day Acoustics.

The evidence of Mr J Wilkinson who prepared the photomontage images was accepted by the parties so he was not called to present his evidence.

Ms S Brennan, barrister instructed by Ms M Marcus of Maddocks solicitors

• Mr C Czarny, urban designer of Hansen Partners;
• Professor (Ms) D Reed, architect;
• Ms C Dunstan, traffic engineer of Traffix Group.

Ms E Bergin of Victorian Government Solicitor's Office for the Director of Public Transport

Ms T Acreman, barrister by direct brief for Mr A Harris of Save Dimmey's

Mr A McAllister for Swan Street Traders Association

The site is effectively an island surrounded by three roads - Swan Street to the north, Green Street to the east (giving access to a car park adjoining the railway), Byron Street, a cul-de-sac, to the west - and a railway reservation to the south.

The site has a frontage of about 56 metres, a depth of 71 metres and an area of just over 4,000 square metres. The site contains a largely two-storey heritage building that is included on the State Heritage Register. The building is generally two-storey in the "American Romanesque" architectural style with an iconic ball-topped clock tower.

The building is currently used as a retail shop - Dimmeys. Its exterior is somewhat dilapidated. In particular, its original cast-iron Victorian post verandah has been replaced by a cantilevered awning.

Development along the northern and southern sides of Swan Street consists of an eclectic mix of predominantly two-storey buildings and predominantly of the Victorian or Edwardian eras but with a scatter of more recent buildings. Development along the opposite sides of Green and Byron Streets consists of two-storey buildings of 19th century or modern periods. On the northwestern corner of Byron and Swan Streets, opposite the site, is a small café (Almost French) with its principal entrance placed diagonally onto the corner.

The proposal involves the refurbishment and reinstatement of the building's external heritage fabric and, inside this, the construction of two parking basements, retail and office spaces (described as lofts) on the ground and first floors, apartments above with some in a low block and the majority in an elliptical, glass-clad tower rising 8 floors above the commercial levels to an overall 10 storey height. Parking and loading bay access is to the rear of the site, from Green and/or Byron Streets.

Section 77 Planning and Environment Act 1987 to review the responsible authority's decision to refuse to grant a permit.

Zone and Overlays affecting the subject and adjoining land

Subject land: Business 1 Zone (B1Z); Heritage Overlay (HO335 and the site-specific HO360); City Link Project Overlay (CLPO).

Adjoining land to the east and west is zoned B1Z and affected by HO335 and CLPO.

Land to the north across Swan Street is zoned B1Z and affected by HO335.

Swan Street is zoned Main Road (category 1). Land abutting to the south is in the Public Use Zone 4 (Railway).

Clause 34.01-4: To construct a building or construct or carry out works in B1Z;

Clause 34.01-2: To use land for dwellings having a frontage at ground floor level exceeding 2 metres in B1Z;

Clause 34.01-2: To use of the land for offices having a frontage at ground level exceeding 2 metres and, in part, shared with a dwelling in B1Z; and

Clause 52.06: To reduce the standard car parking requirements for dwelling, retail and office land uses.

1. This case involves a proposal to undertake alterations and additions to the site commonly known as Dimmey's. The most controversial aspect of the proposal is the inclusion of a new glass residential tower that reaches 10 storeys in overall height.
2. The Council and the objectors hold the view that the glass tower is not a quality design and is not respectful of Dimmey's clock ball tower, and that it will compete with and diminish the ball tower's landmark significance. However, the Swan Street Traders' Association supports the proposal and describe it as an opportunity to bring people back into the community.
3. Dimmey's clock ball tower is an integral part of its heritage and the heritage considerations are not before us as Heritage Victoria has already granted approval for the redevelopment of Dimmey's.
4. Having had the benefit of many submissions and expert evidence, including more detailed images of the design of the glass tower, we find the tower is an acceptable and appropriate addition to the local area, including the adjacent low rise heritage streetscape of Swan Street.
5. Dimmey's was described in the hearing as a faded jewel. This proposal will rejuvenate and renew this jewel through the proposed new development and the combination of residential, retail and office use of the old and new buildings on the site. We agree with the Applicant's submission that:

The building will make a meaningful contribution to the public realm. It will contribute a new, public parking resource. It will preserve and enhance a building of State significance. It will result in improvements to Byron Street. It will add a significant public art work to the southern interface to the rail line. It will add a well designed, well resolved modern building to the activity centre.

1. The Council suggested any development of Dimmey's needs to achieve a quality outcome commensurate with the significance and landmark status of Dimmey's. How future generations may or may not value a new building is speculative and not a matter required to be considered in determining the merits of this planning application. Rather, the question is whether the proposed building is acceptable having regard to all the relevant planning controls and the State and local planning policies. Hence, this proposal can be acceptable even if it has some negative characteristics or outcomes.
2. The State planning policies of urban consolidation, housing diversity and affordability; and the social and economic benefits of more retail, commercial and residential land uses in Swan Street are strong and compelling benefits that weigh in favour of this proposal. Swan Street is identified as a Major Activity Centre and State policy encourages intensive housing in such centres. There is no requirement (unlike, say, for Neighbourhood Activity Centres) to fit in to the context and enhance the character of the area. Rather, State planning policy contemplates exactly what is proposed in this case - a taller building of differing materials and shape to that which currently exists.
3. The local planning policy framework seeks an outcome of pockets of taller buildings amongst a generally low rise built form environment and we find this proposal achieves this policy outcome. The design responds to its context by being different to the surrounds. It has an elliptical form that is simplistic and a glass surface that is calm. These attributes ensure the tower does not compete with the heritage facades of Swan Street and reveals the modern structure for what it is.

1. The retail ground floor and commercial first floor components of the proposal form a podium within the shell of the historic building. Above the historic structure are two residential blocks. The first is a low rise two storey building above the podium level. It is largely hidden behind the historic façade, and was not contentious amongst the parties during the hearing. The other is a tower with an overall 10 storey height. It is elliptic in design, glass-clad and extends 8 storeys above the podium. This tower has its narrow edge facing, but set back about 23 metres from, Swan Street.
2. A supermarket will occupy the majority of the ground floor retail area with a single, smaller retail tenancy located in the northeast section of the Swan Street frontage. A single loading bay is located to the rear, accessed by a reverse manoeuvre from Green Street and Railway Place.
3. There are two car parking levels at the rear of the site providing parking for residents, employees and shoppers. The proposal requires all parking associated with the retail areas (staff and customers) to be accessed from the southern end of Green Street. Residents would enter and leave their parking level via Byron Street. The single loading bay area adjacent to Green Street forms a single storey extension on the southern side of, and outside of, the heritage building.

1. This proposal has garnered considerable community attention and opposition, principally because of concern that the tower will intrude into views of the Dimmey's ball clock tower. At present, this ball tower can be seen to stand in isolation above Dimmey's two-storey shopfront from many viewpoints. To summarise the concerns of objectors and the Council, the closeness of the proposed tower will intrude into many of the important views of the ball tower and thereby diminish its iconic quality, which derives from a combination of the ball tower's prominence and its idiosyncratic detailing.

1. In addition to this key concern, a number of other matters were raised including amenity impacts, car parking and traffic. We will now explain the reasons for our decision, focussing upon the following principal issues:
   • The necessity to balance competing planning policies;
   • The relevance of heritage;
   • The acceptability of the proposed glass tower;
   • The internal amenity;
   • The car parking provision;
   • The traffic management;
   • The railway corridor; and
   • The suggested permit conditions.

THE NECESSITY TO BALANCE COMPETING PLANNING POLICIES

1. Much of the hearing on the merits of this matter focussed upon the appropriateness or otherwise of the glass tower. However, in exercising the discretion to grant a permit[1], one of the key starting points for considering the merits of this proposal is how this proposal responds to the relevant State and local planning policies. The most important of which, in our opinion, involves the tension of supporting urban intensification and achieving an appropriate urban form in a Major Activity Centre.

1. Clause 65 requires us to consider whether the proposal will achieve acceptable outcomes. Clause 10.04 of the planning scheme contains the oft-quoted direction to responsible authorities and, upon review, the tribunal to balance competing and conflicting policies to achieve the most appropriate outcome for the community[2]. We acknowledge 'the community' is a broad term and, as is the case here, a proposal may have some impacts upon parts of a community and it may also have benefits for a broader community.
2. The Supreme Court has recently considered the meaning of "acceptable outcomes" within the terms of clause 65 in Rozen v Macedon Ranges SC[3]. After referring to the provisions of what is now clause 10.04[4] and clause 65, Osborn J said:

[174] In Knox City Council v Tulcany Pty Ltd, I observed:

The planning scheme does not require an ideal outcome as a prerequisite to a permit. If it did, very few, if any, permits for development would ever be granted and there would be difficult differences of opinion as to whether the outcomes were in fact ideal. The Tribunal is entitled to grant a permit where it is satisfied that the permit will result in a reasonably acceptable outcome having regard to the matters relevant to its decision under the planning controls.[5]

[175] For these reasons I accept the appellants' submission that the test which the Planning Scheme requires to be applied is one of acceptable and not ideal outcomes.

[176] The question in the present case is whether the Tribunal's reasons read in context demonstrate that it has failed to apply the correct test. The underlying task of the Tribunal is after all to reach the 'correct or preferable' decision on the material before it.[6]

[177] In this sense the preferable outcome is not to be equated with the 'ideal' outcome.

1. In reference to the above, the Tribunal recently found[7]:

[78] As the Supreme Court observed, the test of acceptable outcomes is informed by the notions of net community benefit and sustainable development. An outcome may be acceptable despite some negative characteristics. ...

1. Hence, this proposal can be acceptable even if, in the eyes of some of the community, it has some negative characteristics or outcomes. A planning outcome that is 'Pareto optimal', i.e. a change that offers the greatest benefits for some individuals without making anyone else worse off than they were in the first instance, would be ideal. However, the complexities of cities are such that outcomes of this nature are rarely possible. Hence, the correct or preferable outcome should not be equated with an ideal outcome.

1. Much of the focus of the parties in this case was upon the benefits or otherwise of the glass tower in its built environment. However, this must be considered together with the economic and social benefits of the proposal as a whole.

1. We agree with the Council and the community that the new glass tower will be visually apparent and those members of the community that will immediately experience this change are already living in, or regularly passing through, the area. We accept that this tower may not be considered by some as a built environment benefit. The Yarra Planning Scheme contains a very large number of strategies and policies directed to managing the City's built environment and its appearance. Again, the plethora of these policies and strategies have to be balanced in favour of a preferable or acceptable outcome, not an ideal outcome. We will discuss this further later in these reasons.

1. Although the Yarra Planning Scheme contains strategies and policies relating to economic and social outcomes such as urban consolidation, diversity and affordability, they are less extensive and more general than those dealing with urban form and visual changes.
2. The proposal's economic and social benefits arise from having more apartment-style housing and improved housing choices in a location that has excellent accessibility to public transport and a range of services. There will be a range of economic benefits relating to more effective use of the existing social and physical infrastructure. Mr McAllister spoke on behalf of the Swan Street Traders Association on the first day of the hearing and stated this proposal will "bring people back into the community". He described the proposal as "helping to revitalise Swan Street" because:
   • It brings new uses into a Major Activity Centre, including a supermarket;
   • It brings more people into the centre to live, shop, dine and feel safe;
   • It will improve public safety with a large retail activity that will contribute to making the area a desirable place to visit; and
   • It will improve Green Street as the related pedestrian tunnel under the railway lines is dangerous and this proposal will lessen this due to it becoming a main point of access to a public car park and a point of access into the offices and residential apartments.
3. Senior Member Liston, in his decision in NJJJKT[8], emphasised the need to better balance State policies against local policies. We find the State policies of urban consolidation, housing diversity, and affordability as well as the social and economic benefits of more retail, commercial and residential development in Swan Street are strong and compelling benefits that weigh in favour of this proposal.

1. 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).
2. 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].
3. 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.
4. 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.

1. The most significant element of the proposal is the proposed tower and its appearance. The most significant aspects of the tower's context is its proximity to the Dimmey's ball clock tower and its location in a Major Activity Centre that contains a predominant low-rise character. Our consideration of the acceptability of the glass tower has had regard to this context as well as the relevant planning policies and controls, and we are of the opinion the glass tower is an appropriate built form addition.
2. Council's submission provided a useful framework for explaining our assessment of the proposal's built form (although we have reordered these to suit the way we intend to explain our findings):
   • whether the proposal constitutes an appropriate response to the relevant planning framework applying to the site;
   • whether there are factors such as ESD best practice or architectural excellence which justify an increase in height; and
   • whether the proposal is acceptable in terms of its scale, bulk, mass and height in the context of the streetscape and skyscape.

The Proposal Appropriately Responds to the Relevant Planning Policies

1. The Council and community submitted the height of the glass tower substantially exceeds the 5-6 storeys specified in several of the planning scheme's strategies and policies, particularly objective 17.2 of Clause 21.05-2, and it exceeds the 4 storeys adopted by Council in its Draft Swan Street Structure Plan. In explaining our findings, we will deal with the draft structure plan first and then the planning policy framework of the Yarra Planning Scheme.

1. We do not place any weight on the 4 storey height proscribed in the Draft Swan Street Structure Plan. Firstly, we note the 4 storey height was adopted by the Council without any specific study or recommendation from its officers or consultants employed by the Council[12]. Secondly, the witnesses, including the Council's witnesses, did not consider this height limit to be a reasonable expectation. Thirdly, we understand this plan has been endorsed by Council in part to undertake public consultation[13]. Hence, we find this document has a long way to go before it attains any weight as a soundly based planning policy.

1. Swan Street is identified as a Major Activity Centre in accordance with the State planning policies relating to activity centres. A Major Activity Centre is one that has a mix of activities, is well served by multiple public transport routes and has:

... the potential to grow and support intensive housing developments without conflicting with surrounding land-uses.[14]

1. The reference to "intensive" housing is specific to Principal and Major Activity Centres as, for example, Neighbourhood Activity Centres are described as having higher density housing that is designed to fit the context and enhance the character of the area. There are no such requirements for Principal and Major Activity Centres, which creates a window of opportunity for different building forms, heights and typologies that support intensive housing to that which may currently exist in a Principal or Major Activity Centre. In our opinion, State planning policy contemplates exactly what is proposed in this case - a taller building of differing materials and shape to that which currently exists.

1. The Council acknowledged this site "represents an important opportunity for urban consolidation" because of its size, zoning, location within a Major Activity Centre, proximity to excellent public transport and multiple street frontages. The Council also acknowledged the site has the status as a 'strategic redevelopment site' despite it not being specifically acknowledged as such in the Municipal Strategic Statement. We agree with Mr Tweedie's submission that the built form expectations for strategic redevelopment sites or sites within activity centres are very different to those for the balance of the municipality. For example, we note clause 21.04 of the MSS acknowledges the majority of new development will be accommodated on strategic redevelopment sites.
2. The Council submitted the Applicant's development expectations must be tempered by the following factors:
   1. The existing urban context of fine grain, low scale heritage shop fronts,
   2. The likely future character which will emerge in this Major Activity Centre,
   3. The clear policy statements that strategic redevelopment sites are generally intended to host buildings of 5-6 storeys,
   4. The guidance of State and local policy in relation to landmarks, and
   5. The expectation that heights above 5-6 storeys achieve a very high standard of architectural quality, ESD performance and so forth.

1. In regard to the "intended" 5-6 storey height, the Council placed emphasis upon strategy 17.2 in the MSS. However, it must be remembered that this is but one strategy in a larger strategic policy framework. We agree strategy 17.2 states in part:

Development on strategic redevelopment sites or within activity centres should generally be no more than 5-6 storeys unless ...

1. However, this is the only reference to this height in clause 21.05 relating to built form and there is no other such reference, including in the Burnley-Cremorne-South Richmond neighbourhood area in clause 21.08. Nowhere does the planning scheme, to our knowledge, explicitly state that buildings can be higher than 5-6 storeys. However, in turn this implicitly means there is acknowledgement that there can be circumstances where new tall buildings may be permitted and that these may exceed the 5-6 storey height preference of strategy 17.2.
2. It must be remembered that strategy 17.2 falls within clause 21.05-2 that relates to urban design and contains the following opening sentence:

Looking at the built form of the whole municipality, a clear picture emerges of a low-rise urban form punctuated by pockets of higher development.

1. This clause then sets out seven objectives to be achieved, including objective 17:

To retain Yarra's identity as a low-rise urban form with pockets of higher development.

1. This objective underpins our earlier finding that it is implicit in the local policy framework that there will be circumstances where new tall buildings (higher development) may be permitted. We also note that the Landmarks and Tall Structures local planning policy at clause 22.03 includes a policy that acknowledges the possibility of new tall buildings:

Ensure the profile and silhouette of new tall structures adds to the interest of Yarra's urban form and skyline.

1. All of these local policies and objectives provide the opportunity for new tall buildings to be considered on their merits and permitted if acceptable. We think this case is one where a strong contrast in building height is appropriate as the setting of this site is within a Major Activity Centre on land that is bounded entirely by roads and the railway corridor with a business zoning and is surrounded by other properties also with a business zoning.

1. Clause 22.03 seeks new tall structures that add interest to the urban form and skyline and clause 21.05-2 provides a non-exhaustive list of 'benefits' that may justify a taller building:
   • Significant upper level setbacks
   • Architectural design excellence
   • Best practice environmental sustainability objectives in design and construction
   • High quality restoration and adaptive re-use of heritage buildings
   • Positive contribution to the enhancement of the public domain
   • Provision of affordable housing.
2. While there is an obvious nexus between some of these 'benefits' and a building's appearance (e.g. it might be arguable that it is acceptable to see a taller building if it is more beautiful or includes the retention of an important heritage building), other benefits have no such nexus. As we have already stated, the list of benefits is not exhaustive so there may be other benefits/criteria that would be relevant in particular circumstances. We agree with Mr Tweedie this proposal fulfils some of these listed benefits, and none of them represent a pre-condition to development above 5-6 storeys.
3. We do not intend to address each of these benefits in considering the merits of this proposal. We are satisfied that none are a pre-condition to a development greater than 5-6 storeys. Nevertheless, we will address two of these benefits: one (architectural design excellence) because the Council emphasised it is a reason why an increase in height is not justified in this case; the other (high quality restoration and adaptive re-use of a heritage building) because it is a fundamental component of this proposal.

High Quality Restoration and Adaptive Re-Use of a Heritage Building

1. The proposal more than meets the criterion of restoration and adaptive re-use of a heritage building. Dimmey's will be externally refurbished and missing fabric will be recreated. The building will be adapted to support a new retail use that will contribute to the future viability of the Swan Street Activity Centre[15]. The building's refurbishment will be undertaken in accordance with the exacting requirements of the approval granted by Heritage Victoria. We therefore accept that the proposal satisfies this criterion.

1. Whether the proposed glass tower meets the criterion of architectural excellence and what weight we should give this, if it does, is a more difficult question. There is the philosophical question as to whether such descriptions of architectural excellence should be contained within a planning scheme at all, particularly given we highlighted earlier the test of achieving an acceptable outcome and the underlying task of the Tribunal to reach the 'correct or preferable' decision. Nevertheless, the term architectural excellence is contained in the local planning policy framework and formed a significant component of the Council's concern with this proposal, so we have considered this.
2. Planning Panels Victoria and the Tribunal have considered the question of architectural excellence or design excellence in a number of decisions, but without any clear consensus, other than that it is an undefined and difficult concept (particularly given acceptable outcomes and preferable decisions). Some decisions identified architectural excellence as "good mannered design[16]", avoiding adverse impacts[17], or likely to be valued by future generations as representative of its time[18]. We have found the most apt comments to be those of Members Hewet and Pizzey in the Pentas Property Investment case[19]. Having observed that the term is difficult to grapple with, they made the following observation (in para.43):

From our perspective however, the consideration of design excellence must be focussed entirely on those matters encompassed within the planning scheme, and in particular Clause 19.03 which, in general terms, seeks to "....achieve architectural and urban design outcomes that contribute positively to local urban character and enhance the public realm while minimising detrimental impact on neighbouring properties......", and which "....take into account the natural, cultural and strategic context of its location". Issues of individual taste or preference for architectural styles are irrelevant.

1. We agree with this observation and also agree with Mr Tweedie that high quality or architectural excellence means high quality having regard to what planning policy seeks to achieve in an area. In this case we find the proposal takes account of its context and contributes positively to local urban character, particularly when policy encourages pockets of tall buildings amongst a generally low rise built scale.

Is the Architect Determinative of Architectural Excellence?

1. The Council argued the architect, John Armsby, does not have the extent of experience to design a building of architectural excellence. We do not give any weight to this submission. Firstly, who the architect is may be informative but is not a prerequisite to obtaining a permit in any circumstance. Rather, it is the merits of the particular design that is to be considered. Secondly, the Council's submission was disputed by both Professor Reed and Mr Deutscher, who agreed that an architect's ability might not have any relationship to his or her extant work. Thirdly, putting this aspect of the Council's submission to one side, we have before us in this case a considerable body of expert evidence and submissions on the merits of the proposal. It is these merits which form the basis of our decision.

1. We had two opposing views of the glass tower's architectural excellence from two architectural experts: Professor Reed and Mr Deutscher.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.

1. The Council referred us to decisions by the Council and the Tribunal where the height of particular new buildings had been limited within Yarra's strip shopping centres that are affected by a Heritage Overlay[22]. However, while these cases may demonstrate a degree of consistency in decision making, each has its own circumstances and context. There are a number of examples of where taller buildings have been allowed, particularly setback from the principal street frontage affected by the Heritage Overlay. We do not accept that these decisions set a precedent that should pre-determine our assessment of this building on this site in the Swan Street context. The parties agreed there has been little development within the Swan Street Major Activity Centre thus far. Hence, this fact makes it of even greater importance that this proposal is assessed on its own merits having regard to its context and the planning policy framework.

1. We agree with the Council that the Swan Street streetscape reflects its largely Victorian era, with predominantly two and three storey buildings on relatively narrow lots. We also agree that this streetscape character will be influenced by the Heritage Overlay that extends along both sides of Swan Street. Within the streetscape there is also finer decorative patterns of doors, windows, parapets and corbels, and the Dimmey's building contains all of these traditional finer Victorian details but without the vertical patterning and variation created by individual, small fronted buildings.
2. In our view, the use of a "calm" glass surface for the tower as backdrop to the heritage facades of the Dimmey's building and the general Swan Street streetscape is appropriate. It does not compete with the heritage facades and reveals the modern structure for what it is. We believe that the detailing of the curtain wall with its pattern of glass and openings will, subject to care, strike an appropriate balance between calmness and a subtle visual interest. We find the use of the glass tower's elliptical form also assists as its simplicity will provide a complementary contrast to the Victorian detailing in the foreground.

1. The proposed 10 storey glass tower will be different to the predominant low rise Swan Street scale, but that does not make it an inappropriate design response. We concur with the Tribunal's comments in Design Consortia Australia[23]:
   1. This aesthetic promoted [i.e. the aesthetic promoted by strategy 17.2] is one of pockets of taller buildings, rising above a plinth of low-rise development. It seems to us that, if this aesthetic is to be successful, the pockets of high-rise development should provide a clear contrast with their surroundings. In the context of the Richmond area, an effective building should not be half-way between low-rise and high-rise. In this context, it is acceptable that taller buildings would dominate closer views in ways that would otherwise be unacceptable.
   2. In effect, while this urban design aesthetic of occasional high buildings amongst a base of low-rise buildings is not commonly promoted in other municipal policies, we believe that the key to its success is that, where it is applied, it should be applied fully and consistently. Where a strong contrast in building height may be fairly judged as discordant in one policy setting, it can be judged as appropriate in this setting. We do not accept that there is anything intrinsically wrong in having an occasionally dominant building.
2. Within the local planning policy framework, it is evident that this built form relationship is contemplated and provided for. As such, we conclude the proposed 10 storey glass tower is acceptable because of its simple elliptical form, calm glass façade and generous setback from Swan Street.

1. One of the most controversial aspects of this proposal is the relationship between the proposed glass tower and Dimmey's ball tower.

1. The objective 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 relevant policies are:
   • Protect views to the silhouette and profile of Yarra's valued landmarks to ensure they remain as the principal built form reference.
   • Ensure the profile and silhouette of new tall structures adds to the interest of Yarra's urban form and skyline.
2. Dimmey's ball tower is one of eight identified landmarks in the policy, but there is no guidance in the policy as to which views of it should be protected. Rather it requires, in part:

New buildings within the vicinity of the following landmarks should be designed to ensure the landmarks remain as the principal built reference:

1. The policy goes on to identify particular views of the silhouette/profile of some landmarks, but this does not include Dimmey's ball tower[24]. Background to this policy is contained in the Reference Document City of Yarra Built Form Review (July 2003). It describes these landmarks as highly valued by the community as they "stand out against the sky" when viewed from street level[25].
2. The content of the policy leads us to conclude that it does not require there to be no visible structure near Dimmey's ball tower, but rather that the ball tower remain "the principal built reference". We are of the view this means any nearby structure should be visually subservient to the ball tower having regard to the ball tower's architectural complexity, richness of detailing and its position on the street frontage. The question then becomes in which views does the new tower need to be visually subservient? We agree with the findings of the Tribunal in Crema Group[26] that the policy is not intended to preserve and protect every possible view from public spaces. We also agree with the findings of the Tribunal in Cremorne Corporation[27] that key or important views need to be carefully dealt with, not every incidental view.

1. 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.
2. 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.
3. 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.
4. We therefore conclude that the proposed 10 storey glass tower is acceptable in terms of its relationship with the Dimmey's ball tower.

1. The urban context report states the proposal provides:

... a range of high-end residential apartments accommodating a variety of sizes and types to cater for a diverse range of household styles. The apartments have been designed to provide very generous, functional, flexible and efficient spaces as well as providing adequate storage spaces.[28]

1. Mr Tweedie submitted the amenity of the future occupants will be high and that there was little by way of submissions or evidence of any real substance about issues of internal and external amenity in relation to this proposal. We agree there were limited concerns raised about these matters, and we will explain our findings on the issues that were raised by the parties and the expert witnesses.
2. Mr Phillipson expressed concern about the liveability of the proposed apartments by families and elderly people. The apartments contain 1 or 2 bedrooms and, ultimately, it will be up to individual purchasers or renters to decide if an apartment in this development is suitable for their needs. Mr Phillipson's written submission expressed concern about the size of the laundries, bathrooms and kitchens. The fact is these facilities (of whatever size) are provided and, again, individuals will decide if they are adequate in determining whether to purchase or rent an apartment. These are not reasons why this proposal should be refused.

1. Professor Reed described the Swan Street entry lobby to the new glass tower as "appalling". It has a length of about 28 metres leading from Swan Street to the lift lobby. Mr Biacsi explained the design of the residential lobby has had to work around the constraints of the existing heritage building. The residential lobby is sitting about one metre above the level of Byron Street and is partly a double height space because there is a void to the level 2 floor plan. It has a width of about 2 metres and contains large new glass window panes along its western elevation to Byron Street. We are satisfied the features of this lobby space maximise space, light and visibility[29].

1. Professor Reed was critical of the fact that only one lift is provided to service the new 10 storey residential tower. Mr Deutscher stated the proposal should contain two lifts for the tower for practical reasons and because of the high standard of accommodation proposed. In his view, there is no difficulty in modifying the design to accommodate a second lift, and this is contained as a condition of the permit.

1. Mr Phillipson stated there are 59 storage lockers measuring 4.1m³ and there should be 84 (one for each apartment). He also stated car spaces 32, 49, 66, 83 and 84 are not viable because they are located alongside storage lockers, but we disagree. The storage lockers can be designed to allow access from the aisle ends or they can be modified in width to allow side access as is proposed elsewhere in the residential car park. Objective 5.5 of the Guidelines for Higher Density Residential Development is to provide adequate storage and the design suggestions do not state this means a storage area per apartment. Rather they state adequate storage is important for compact dwellings and suggest innovative solutions such as storage over part of the car spaces (which could be incorporated here) and separate storage stalls that can be leased or sold separately as people's storage needs change. We think these are good suggestions and have imposed a condition requiring additional opportunities for storage to be included on the endorsed plans.

1. During the hearing, we asked questions about the daylight access into apartment U3.15 on the level 3 plan, given the first level of the residential tower sits predominantly above it. Mr Tweedie tabled further information about the level 3 plan (TP106 Revision C) that illustrates the line of the residential tower and a pergola over the terrace adjacent to the bedrooms of apartment U3.15. Based on this information, we are satisfied this apartment will receive adequate daylight.

1. During the processing of the application, the Council's independent urban designer, Mr McGauran, raised concern about access to daylight and ventilation for the proposed office/apartment on the level 2 plan (office/apartment L1.01). Mr Tweedie again tabled modified plans (TP 105 Revision C) incorporating a 23m² balcony set back from the rear wall with a void space on the level 3 plan (TP106 Revision C) creating a light court to office/apartment L1.01 below. Based on this information, we are satisfied this office/apartment will receive adequate daylight and ventilation.

1. Mr Golding expressed concern the rear toilets of Almost French on the opposite side of Byron Street will be visible from the lofts (the offices/apartments adjacent to Byron Street). That may be the case, but we do not consider any modifications are necessary to the design. If the operators of Almost French are concerned about this, it is matter for them to deal with.
2. Mr Golding also expressed concern about future complaints about the smell from the flue of the commercial oven used for baking at Almost French. Mr Biacsi stated any smell impact is not unreasonable in a commercial area and the amenity for any future office tenants/residents in the lofts needs to be tempered by the fact that they are located in a commercial area. We agree with this and see no need to modify the proposed design.

1. One of the objectives for higher density housing in the Activity Centre Design Guidelines is to ensure good amenity for the residents and the Guidelines for Higher Density Residential Development acknowledge the need to consider external noise sources. In this case, a number of the southern apartments in the proposed tower are setback about 15 metres from the nearest railway track, and are within about 110 metres of a railway corridor containing at least 10 railway tracks that service electric trains, V/Line trains and freight trains. The Director of Public Transport advised that Richmond Station is the busiest railway station apart from the City Loop; and that the Burnley rail corridor carries 530 trains per day, including a train every 3 minutes during peak times. This raises an issue about the acoustic and vibration impacts of the railway corridor upon these apartments. Mr Marks of Marshall Day Acoustics gave evidence about these impacts as there is no Victorian statutory environmental criterion for railway related noise and vibration. Mr Marks' acoustic assessment divided the potential for noise impacts into two parts - airborne noise and noise induced from vibration of the building caused by the passing trains.

1. Mr Marks analysed the noise and vibration of electric trains. He did not measure VLine or freight train noise but advised freight trains are 7-8dB noisier than electric trains, and the vibration induces a higher sound pressure level as well. Mr Marks expressed the view that the sound levels of freight trains are likely to be lower than those of the electric trains in this case because they travel on the tracks that are further away, and therefore they are not included in his assessment.

1. Mr Marks predicts the highest airborne train noise level (Lmax) at the external façade of the south facing apartments will be 82dBA. Given the Director of Public Transport's submission about a potential new track adjacent to this site, Mr Marks presumed a new 2 metre wide track would mean the nearest track will be about 13 metres from the apartments and the noise levels may be a couple of dBA higher.

1. The question we need to determine is what is an acceptable internal airborne noise level for the proposed dwellings.

1. Mr Marks has adopted a maximum internal noise level (Lmax) of trains of 55dBA in bedrooms and 60dBA in living rooms. He explained the Lmax dBA value in this case is the maximum noise level not exceeded by 95% of train by-pass events. He also stated these noise levels have been adopted in previous Tribunal decisions.

1. The Council had a peer review undertaken by SLR Consulting Australia[30] of the acoustic report by Marshall Day Acoustics that was submitted as part of the permit application. SLR acknowledged the report contained similar criteria to those adopted by SLR, except for a more stringent criteria of 50dBA for bedrooms. SLR advised that the Association of Australian Acoustical Consultants (AAAC) is developing a draft guideline for train noise and vibration, which also nominates 50dBA for bedrooms[31]. Hence, 55dBA is considered by SLR to be at the upper end of the scale with regard to amenity for bedrooms.
2. Mr Marks stated the AAAC draft guideline measures "intermittent noise average", which is, say, the average of 10 trains one after the other passing by, whereas his analysis is based on the maximum noise of one train passing by. He stated if the measurement was the average of 10 trains, it would be lower than the single maximum event. Mr Marks stated the AAAC draft guideline and his analysis cannot really be compared and his criteria has been upheld by the Tribunal in other cases. During the hearing, three cases were mentioned.

1. In 2002, the Tribunal[32] considered 19 dwellings next to the Cranbourne/Frankston railway corridor and was persuaded by the Applicant's acoustic evidence that criteria based on a Lmax measurement (being the maximum noise level that occurs during any noise event over a particular time period) is a more appropriate measure to adopt than a Leq criterion (being the average noise level measured over a specific time period). The Tribunal adopted the evidence that a 50dBA Lmax criterion is capable of achieving internal noise levels significantly below the 35 to 40 dBA Leq criterion also discussed in that case. Hence an internal 50dBA Lmax criterion was applied.

1. In 2004, a proposal for 23 townhouses approximately 100 metres west of Gardiner railway station was considered by the Tribunal[33]. The Applicant's acoustic evidence described the 2002 Tribunal decision imposing an internal 50dBA Lmax as "extremely stringent". The evidence recommended a more appropriate criterion for maximum noise levels of trains is not to exceed 55dBA in bedroom areas and 60dBA in living room areas. It appears from the decision that there was no opposing acoustic evidence or submissions.

1. In 2011, the Tribunal[34] considered a proposal for 28 dwellings abutting the eastern side of the Pascoe Vale railway station. In response to an interim order, the Applicant provided a noise assessment report that was reviewed by Council officers. The report and the Council's comments were considered by the Tribunal on the papers. The report stated the assessment was based on Lmax measurements and "event sleep disturbance, which is typically applied to these evaluations in best practice". It went on to state:

In general, events not exceeding 55dBA are unlikely to cause awakening. While it is best practice to achieve the 55dBA threshold or lower for discrete maximum events, significant cost penalties may be incurred and it is typical to evaluate the development as a whole, with due recognition to tenant expectations. We do note that it is not uncommon for developments within close proximity of rail lines and train stations to exceed 55dBA.

1. This report gave two options to achieve either a 55dBA Lmax or less or a 60dBA Lmax or less. The Council requested the 55dBA Lmax or less option. The Tribunal applied 55dBA Lmax or less for the bedrooms and 60dBA Lmax or less for the living areas.

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.

1. We note that the Tribunal cases referred to earlier did not comment upon structure-borne vibration induced noise. This is an issue in this case and we accept Mr Marks' evidence that the train vibration is predicted to meet the AS2670.2-1990[37] night-time criteria based on up to 450 train passes per 16 hour day period. The structure-borne vibration is predicted by Mr Marks to be between 98 and 100dB, which will result in a predicted internal sound level of 39dBA. Mr Marks said the predicted maximum internal vibration-induced noise level should be 10dB less than the airborne noise levels. This means the structure-borne (vibration) noise level should not exceed 40dBA in bedrooms and 50dBA in living rooms. As the predicted internal bedroom level of 39dBA is quite close to the 40dBA in the bedrooms and the 450 train passes is less than the Director of Public Transport's submission of 530 trains per day, we will impose a condition requiring this to be verified as part of the detailed construction phase to ensure compliance in the bedrooms with Mr Marks' requirement for an internal structure-borne vibration induced noise level of 10dB less than the airborne noise levels.

1. The noise level at the external façade determines the construction required to adequately attenuate the noise. Mr Marks stated in his evidence report that the precise details will be subject to a detailed architectural assessment as the design progresses. Nevertheless, his evidence report has made specific recommendations in Tables 13 and 14 about the type of glazing required to achieve his recommended internal noise levels of 55-60 dBA. Obviously, this will need to change to accord with our earlier findings to achieve 50dBA and 60dBA for airborne noise. We note Mr Marks' Tables 13 and 14 refer to both 6mm/10mm mono glazing or 6.76-16.76 laminate glazing. We were provided with a pamphlet about the Azuria tinted glass intended for use in the proposed tower during the hearing. This pamphlet generally describes the glass options as 6mm thickness. In response to Ms Brennan's cross-examination, Mr Marks stated he did not know if the proposed Azuria glass had the right acoustic properties.
2. We wish to make it clear that we are approving the proposed tower with the glass detailing as described by Mr Deutscher and as depicted in the A3 elevation details referred to by Mr Deutscher. We are approving this proposal on the basis that the glass detailing and acoustic qualities can be achieved hand in hand. If the acoustic qualities of the glazing require changes to the glazing and thereby the appearance of the tower, this may require an amendment to the permit and further consideration by the Tribunal pursuant to section 87A of the Planning and Environment Act 1987.

1. At the outset it must be acknowledged that residents choosing to live in a Major Activity Centre must accept a lesser level of amenity than that enjoyed in a typical residential neighbourhood. We have taken this fact into account in our findings regarding the external amenity impacts of this proposal.

1. During the hearing, the potential for overlooking from the new apartments/offices into the residential apartments at 8 Byron Street, the shop top dwelling above Almost French and the townhouses on the opposite side of Green Street was raised.

1. In regard to Mr Moloney's apartment at 8 Byron Street, Mr Tweedie tabled cross sections through Byron Street to demonstrate potential sightlines (Sightlines Drawing Numbers 308-1 and 308-2). Mr Biacsi expressed the view that the 6 metre separation between Mr Moloney's apartment and the proposed new apartments creates an acceptable level of amenity. However, Mr Biacsi appreciated the outlook will change and he acknowledged the impact upon Mr Moloney's apartment is an area of sensitivity that can be dealt with. Cross-sections were tabled showing the floor levels of Mr Moloney's windows and the new balconies. Mr Biacsi suggested the balustrade heights could be raised to 1.7 metres above the floor level for the lofts and apartments opposite Mr Moloney's apartment at levels 2 and 3, and screening could be incorporated to the west side of the terrace of apartment U1.16 on level 2. We find these changes are appropriate and have included them as permit conditions.

1. We have inspected the dwelling above Almost French and note there are five east facing first floor windows. It appears to us that the three windows furthest from Swan Street may be opposite the proposed balconies to lofts L1.13, 1.12 and 1.11. Based upon the survey plan (TP501) Almost French's windows have a bottom sill height of 12.8 metres and a top sill height of 14.8. In section D (TP306) the proposed balconies are located at a floor level of 14.2 with a glazed balustrade to 15.2. This means the potential for overlooking is already limited by the fact that the proposed balconies are sitting at a higher level with balustrading to a height of 15.2 in comparison to the top sill height of Almost French's windows at 14.8. Given this, we find no further changes are necessary to limit overlooking into this dwelling.

1. The Tratt family expressed concern about a loss of privacy into their windows and roof top entertaining area. Mr Biacsi stated the townhouses and the Dimmeys building are separated by at least 9 metres and the lower level apartment building rising behind the Dimmeys building is setback a further 2.5 metres. If clause 55 (commonly known as ResCode) was applicable, the distance in which to limit overlooking is 9 metres. This is exceeded and we note the proposed apartments have a limited number of windows facing east towards these townhouses. As such, we are satisfied the proposed design is acceptable.

1. Concern was expressed by the residents of 8 Byron Street and the Tratt family in Green Street about the loss of sunlight and the overshadowing that will be caused by the new residential tower. Mr Biacsi stated this loss of sunlight is inevitable in a Business 1 Zone and in a Major Activity Centre. He pointed out the living areas, particularly of Mr Moloney's apartment, face the railway and so the loss of light is limited to the bedrooms.
2. We have inspected Mr Moloney's apartment and so we will use his apartment as the example for our findings on this point. Mr Moloney has the benefit of windows in his living area that face the railway (multiple windows) and Byron Street (one window), therefore there will be a loss of sunlight into one of his living room windows and both of his bedroom windows. The question is is this unacceptable? We agree with Mr Biacsi that the amenity expectations of residents living in a business zone and an activity centre must be tempered. Our earlier analysis and consideration of the planning policies at a State and local level make it clear there are limited opportunities in this municipality to achieve tall buildings, and a Major Activity Centre is an area where intensive residential development is supported. We understand this development will change the level of amenity currently enjoyed by the residents of 8 Byron Street, the dwelling above Almost French and the Green Street townhouses. However, we are of the opinion the reduction in amenity is acceptable having regard to the relevant planning controls and planning policies.

1. Mr Marks agreed with Ms Brennan that the loading bay in Green Street should have no deliveries after 10pm and no more than one delivery every half hour between 6 and 10pm Monday to Friday, between 1 and 10pm on Saturday and between 7am and 10pm on Sunday and public holidays. This is necessary to provide appropriate noise levels to the nearest residential townhouses on the opposite side of Green Street.

1. It is proposed that there will be a roller shutter door to the residential car park entry/exit in Byron Street. The residents of 8 Byron Street expressed concern about noise and Mr Marks advised new roller shutter doors are generally smooth and quiet at about 10dB(A) whereas large older ones can be noisy. We are satisfied a suitable roller door can be chosen, and will require this as a permit condition.

1. The planning application contained less bicycle parking than is required by the planning scheme for the retail component of the proposal. Ms Dunstan stated the bicycle parking should be increased as per the Council's draft conditions (that are agreed to by the Applicant) and some provision for on-street bicycle parking to cater for retail customers. We agree with this suggestion and have included it in the permit conditions.

1. The urban context report states the proposal provides a range of high-end residential apartments. It provides 100 car spaces in the 'residential car park' for the apartments and office/lofts and 74 car spaces in the 'commercial car park' for the supermarket and retail space.
2. Ms Acreman stated the proposal fails to provide adequate car parking:

The Swan Street vicinity supports many people beyond the residents of the local area, including shoppers, football, soccer, cricket and rugby crowds resulting in a lack of street parking for residents, especially when sporting events are being conducted at the MCG and AAMI Stadium. It is submitted that the development should contain more provision for parking to ensure there is no overflow to exacerbate parking problems already experienced by local residents in the area.

1. 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.
2. 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.
3. 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).
4. 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.

1. Various concerns were expressed about the potential impacts of the traffic generated by this proposal upon Byron Street, Swan Street and Green Street. Mr Tweedie acknowledged the site "can be expected to generate a significant increase in vehicle movements" but stated there is adequate capacity in the surrounding road network to cater for this traffic. Mr Tweedie said the following extract of the Tribunal's decision in JG (Vic) Pty Ltd[38] is suitable and right for this occasion:

Ever increasing traffic volumes have been a feature of our society since motor vehicles first used our roads last century. Government policies aim to reduce our dependence on motor vehicles by, amongst other things, encouraging new development into areas already well served by public transport and by trying to better match housing and work places. Rejecting new development on sites such as the review site does not mean that the traffic situation will improve or stop getting worse. Allowing new development on sites such as this, located close to public transport, in a long established and very important centre and in areas where people live nearby, may eventually encourage a slowdown in the growth of traffic volumes.

It may be an optimistic and long-term outcome, but it is one that planning policy seeks to achieve.

1. These comments relate to a five storey mixed use development (comprising offices, serviced apartments and a café) at 117-119 Camberwell Road, 34-38 Harold Street and 2-4 Graham Place, Hawthorn East. We note the circumstances of that case included no objection from either VicRoads or Council and expert evidence that the additional traffic is not expected to create any unacceptable traffic impacts in the vicinity of the site. The above quotation followed an explanation of these circumstances and we find this sentiment should be viewed in the circumstances of that case, which are different to this case[39].
2. As Mr Tweedie acknowledged, this proposal will create additional traffic, and this is particularly the situation in Byron Street and Green Street. The Save Dimmeys group opposed this traffic impact but our view is that the issue of increasing traffic per se is not a reason to refuse a planning application. Rather, it is whether the forecast increase can be accommodated in the existing road network (the streets and intersections); or whether the road network can or should be changed.

1. Byron Street currently has a narrow road pavement that makes two-way traffic movements difficult. It is proposed that all residential and loft cars use Byron Street for entry and exit. Both expert traffic engineers called by the Council and the Applicant agree Byron Street should not accommodate the traffic in its current design. Ms Dunstan (for the Council) suggested Byron Street should be changed by removing the existing footpaths/kerbs and converting it into a wider pavement that is a shared zone for vehicles, pedestrians and cyclists. Mr Walsh (for the applicant) suggested in his evidence report that the car park layout could be altered so the residential and commercial car parks were integrated and only a one way movement would be required in Byron Street (and Green Street could be used for the other movement). However, during his oral evidence, Mr Walsh said he did contemplate a shared zone but did not know if the Council would agree. Mr Walsh agreed Ms Dunstan's suggested outcome is an acceptable solution.
2. Mr Moloney and other residents in Byron Street expressed concern about the appropriateness of using Byron Street as the residential vehicular entry and exit point. Mr Moloney highlighted potential issues of noise and pedestrian safety. In addition, Almost French (a bakery and cafe located on the southwest corner of Swan and Byron Streets) has its public doorway located in a splayed corner of the building at this intersection. It is concerned about traffic in Byron Street and the tight left turn from Byron Street into Swan Street that may impact upon the opportunity for outdoor seating and pedestrian safety.
3. Ms Dunstan's evidence of the existing and post development (residential and loft) traffic generation in Byron Street is:

1. Ms Dunstan acknowledged Byron Street is 4.2 metres wide at multiple points which makes it not suitable for two-way traffic as two 99th percentile vehicles require a width of 5.2 metres to pass each other. She and Mr Moloney provided photographs of how tight it is for traffic to pass now, including vehicles that are smaller than the 85th percentile. We are persuaded by Ms Dunstan's evidence that this can be resolved if the kerbs are removed and a total width of 6 metres is then available for use as a shared zone by vehicles and pedestrians.
2. The expert witnesses, Council[40] and VicRoads all agree the intersection of Byron and Swan Streets will work effectively and safely with the additional traffic subject to the modifications to create the shared zone. The applicant has agreed to the Council's draft permit conditions requiring the applicant to design the shared zone in consultation with the Council and to pay for the provision of the shared zone prior to the uses commencing. Mr Tweedie said:

The experts agree that a "shared zone" arrangement along Byron Street as proposed by Ms Dunstan would address any reasonable concerns about access and impact upon Swan Street. Such an approach is practical, readily able to be implemented and allows for the efficient use of existing infrastructure. There will be significant benefits to all existing residents and business [sic] along Byron Street from this result, yet another example of the wider community benefits which this development offers to the community.

1. In regard to Almost French's concerns, the door entry is an existing condition and there is no evidence before us to suggest that the additional traffic will cause unreasonable pedestrian safety impacts at this intersection. VicRoads and Council have no concern about this interface. Any footpath seating is a matter that is generally controlled by Council's Local Laws and the amount of potential seating available with or without this proposal is not a valid planning reason to refuse this proposal.
2. We agree with Mr Moloney that the additional traffic has the potential to increase noise levels in Byron Street, but this is part and parcel of living in an urban environment. Noise levels will change as traffic volumes on a street increase, and the noise associated with this proposal's traffic will have peaks associated with the broader road network AM and PM peak periods. In the context of a business zoning, a Major Activity Centre and an area that is proximate to railway and tram lines, we find these noise impacts are acceptable. We are also cognisant that individual land owners in Byron Street have the option to add acoustic shielding to their properties such as high performance acoustic glazing to windows, if they wish.
3. The Byron Street residents do not like the idea of Byron Street being used for access as part of this proposal, and Mr Moloney opposed the shared zone after the Council raised it as a possible solution during the hearing. He pointed out two of the existing apartments have front doors opening onto Byron Street and stated they need the footpath to remain. Ms Dunstan provided photographic examples of a shared zone in Little Buckingham Street, which she described as a low speed environment where pedestrians have priority and there are front doors to dwellings that have bollards marked with red in front of them. We are satisfied the creation of a shared zone like that in Little Buckingham Street will be suitable for Byron Street.

1. 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.
2. 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.
3. 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.
4. 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:

... Council has the option to remove parking on the east side of Green Street which will provide for, in effect, a three lane cross-section comprising a parking lane adjacent the western kerb, a single egress lane broadening to two lanes at the intersection (a short left turn lane) and a single entry lane.

1. We find this proposal will significantly increase the traffic in Green Street (both cars and trucks[42]). We are persuaded by the opinions of the traffic engineers relied upon by the Council and the Applicant that removing the parking from the east side of Green Street is preferable and sufficient to provide for easier traffic flow after this development.

1. Mr Tweedie on behalf of the Applicant opposed any condition requiring VicRoads "mitigating works"[43] and stated a requirement for on-street parking to be removed is not a proper condition to impose in a permit as the Applicant cannot compel the Council to take this action and has no authority to perform these works. He also said:

The management of the local road network (including Green Street) and the question of whether parking should or should not be allowed should be a matter determined by the Council as part of a strategic plan for the whole activity centre, and not as an ad-hoc series of conditions placed on individual planning permits.

1. 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.
2. 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.
3. 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.
4. 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.

1. The Council expressed concern about the adequacy of the loading and rubbish collection arrangements, including the design of these facilities, through Ms Dunstan's evidence. Mr Tweedie and Mr Walsh explained how the loading bay access will work for trucks with a 12.5 metre length and provided swept path diagrams of this (which will require the removal of the proposed bin collection area on Green Street). Mr Walsh advised rubbish collection will occur inside the building with trucks of less than 6.3 metres working height[44]. We have imposed conditions requiring details of how loading and rubbish collection will occur including vehicle movements and a waste management plan.

1. A whole afternoon was spent discussing the draft permit conditions with the parties on the final day of the hearing. As such, we do not intend to summarise the submissions and comments made. We have made changes to the wording, order and intent of many of the permit conditions based on our reasons thus far and the discussions about the permit conditions during the hearing. We will now explain our reasons on some of the more contentious draft permit conditions.

Director of Public Transport/Department of Transport Conditions

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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].
7. 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.

1. 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.
2. 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.
3. 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".
4. 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].
5. 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.
6. 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.

1. The Council is seeking the imposition of conditions that require either a certificate or statement of environmental audit that the land is suitable for residential use. This is no Environmental Audit Overlay applying to this site and there was no material or evidence put to us to indicate why there may be the possibility of environmental contamination on this site. When the Applicant opposed these conditions during the hearing, the Council suggested a site assessment[52] could be undertaken instead. The Potentially Contaminated Land General Practice Note (June 2005) states a site assessment should be sought for proposals for residential land uses where there is a medium potential for contamination. There is no material or evidence before us to demonstrate that any of the medium potential 'activities' listed in the Practice Note have occurred on this site. In the absence of this, we are not persuaded that it is appropriate to impose these conditions.

1. An Environmentally Sustainable Design Report was submitted to the Council with the permit application and this condition seeks changes to the report, such as:
   • Detailing the impact of the coloured glass on heat gain and daylight access in the apartments;
   • Opportunities for external shading devices;
   • Size and type of operable windows to demonstrate cross-ventilation will be achieved;
   • Whether electric or solar hot water systems will be used;
   • Specifying rainwater use in ground floor toilet flushing and location of ground floor toilets.
2. Mr Tweedie submitted the condition is problematic and these matters of detail should be regulated by the building approval process rather than as part of the planning application. There have been decisions by the Tribunal that the larger scale projects can afford to, and should be encouraged to prepare, sustainability reports as part of their planning application consideration and approval. This has been done in this case as the ESD report formed part of the planning application. However, we adopt the findings of the Tribunal in Polizzi[53] about the extent to which the ESD report and its detailed content should form part of any planning approval:

To the extent that the Hasan decision stands for the proposition that built form sustainability issues are already comprehensively dealt with in the building approval process, I consider that:

• this proposition still has strong weight in relation to very prescriptive planning permit requirements intended to be applied on a blanket basis eg a blanket requirement that a solar hot water heater must be installed into any new unit. In a situation where policy choices have already been made regarding whether or not these type of expensive appliances should be a mandatory requirement as part of obtaining a building permit, I can see great potential for doubling-up and confusion if the planning system starts venturing into the same very prescriptive policy territory; but
• the goal posts have shifted since Hasan in terms of the potential for the planning system to actively contribute at a broader design level to the aim of greater built form sustainability. I am also conscious here that there can be limits to the sustainability gains at the subsequent building permit stage if the planning approval constitutes a poor sustainability outcome ie the horse may have already half bolted. For example, the sustainability requirements at the building permit stage will always be very compromised if a new dwelling is sited on its lot so as to have very poor solar orientation. [54]

1. There is no suggestion in this case that this proposal constitutes a poor sustainability outcome, particularly as an environmentally sustainable report was submitted as part of the planning application, and the Council officer's report on this planning application acknowledges "notable ESD objectives of the development". We consider the further matters of detail sought through this condition are prescriptive requirements that have great potential for doubling up with the building permit requirements. For example, the Building Code of Australia now requires an apartment building to achieve a minimum standard of an average 6 star energy rating and individual apartments to achieve a minimum 5 star rating. We think the bona-fide environmentally sustainability intentions of the permit applicant have been demonstrated through the report submitted with the application and the approval of this proposal constitutes an acceptable sustainability outcome as is. Further details can be resolved through the building permit process.

1. This proposal will rejuvenate and renew Dimmey's through the proposed new development and the combination of residential, retail and office use of the old and new buildings on the site. The State planning policies of urban consolidation, housing diversity and affordability; and the social and economic benefits of more retail, commercial and residential land uses in Swan Street are strong and compelling benefits that weigh in favour of this proposal. Swan Street is identified as a Major Activity Centre and State policy encourages intensive housing in such centres, which is exactly what is proposed in this case - a taller building of differing materials and shape to that which currently exists.
2. The local planning policy framework seeks an outcome of pockets of taller buildings amongst a generally low rise built form environment and we find this proposal achieves this policy outcome. The design responds to its context by being different to the surrounds. It has an elliptical form that is simplistic and a glass surface that is calm. These attributes ensure the tower does not compete with the heritage facades of Swan Street and reveals the modern structure for what it is.

The construction of a 4-10 storey building over two basement car parks, use of the land for dwellings and offices, and a reduction in the standard car parking requirements for dwelling, office and retail uses in accordance with the endorsed plans.

The permit must contain the following conditions:

1. Before the development starts, amended plans to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the plans will be endorsed and will then form part of the permit. The plans must be drawn to scale with dimensions and three copies must be provided. The plans must be generally in accordance with the advertised plans but modified to show:

(a) window, door and balcony balustrade details for all elevations including the general patterning and colour of the glass as depicted in the following A3 drawings dated 2 June 2011 and tabled at the VCAT hearing:

• (i) Dwg No 001 General Overview of Façade,

• (ii) Dwg No 002 Edge of Building Showing Grain,

• (iii) Dwg No 003 Façade Variation, and

• (iv) Dwg No 004 Façade Colourback Study;

(b) full elevation details of the proposed additions as they sit behind the retained heritage fabric;

(c) modifications to loft L1.01 and above to accord with the following plans tabled at the VCAT hearing - TP105 Rev C and TP106 Rev C;

(d) redesigning unit 3.15 to accord with the Level 3 Plan tabled at the VCAT hearing - TP106 Rev C;

(e) an internal staircase connecting the ground floor retail tenancy 1 with the ancillary office/amenities at first floor to accord with the Ground Floor Plan tabled at the VCAT hearing - TP104 Rev C;

(f) a security gate to the retail back-of-house area to align with the front of the substation on the east elevation;

(g) screening unit 1.16's terrace, the four, southern-most, first floor balcony openings/windows along the west elevation contained within the retained heritage building and the terraces of units 3.02 and 3.03 to a minimum height of 1.7 metres above finished floor level, and not more than 25% permeable to limit direct views into the 8 Byron Street residences opposite;

(h) deleting the Green Street road works;

(i) details of the art wall along the southern boundary including elevations showing the indicative visual representation of the art, any perforations to the art treatment, and material finishes;

(j) redesigning the loading bay area showing it is fully enclosed and includes an acoustically treated roof;

(k) details of the roller shutter door to be installed on Byron Street;

(l) all works recommended in the report of the professional acoustic engineer referred to in condition 6;

(m) all works recommended in the ESD report submitted with the planning application and any other changes required to meet current regulations;

(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;

(dd) the clearance height of the loading bay to be a minimum of 6.5m to allow for the effective operation of a front-lift truck for the collection of commercial waste as provided for in the Waste Management Plan prepared by Leigh Design, dated 18 November 2010 or alternative waste collection vehicle to the satisfaction of the Responsible Authority;

(ee) providing a lighting plan detailing lighting of all areas including private, communal and publicly accessible spaces and ensuring lighting is baffled to minimise light spill into the Rail Corridor as required by condition 48;

(ff) the location of all proposed external plant and equipment (including roof top plant and equipment, car park ventilation and individual air conditioning and hot water units). All plant and equipment must be screened to prevent views from the adjoining streets and habitable room windows of nearby dwellings;

(gg) areas set aside within the property boundaries for pits, meters and essential services;

(hh) additional opportunities for storage for each dwelling, possibly including storage over part of the car spaces and/or storages stalls that can be leased or sold separately as required;

(ii) details of the bin storage area in Basement level B1 located to provide convenient access from the lift lobby;

(jj) an indicative internal, 1.7 metre high solid screen, or suitable alternative mechanism to prevent inter-looking between the terraces and balconies of the following dwellings:

• (i) At Level 2, units 1.16 & 1.17, lofts 1.15 & 1.14, lofts 1.13, 1.12 & 1.11;

• (ii) At Level 3, all units;

• (iii) At Level 4, units 4.01 & 4.02, 4.04 & 4.05, 4.07 & 4.08, 3.06 to 3.10;

• (iv) At Level 5, units 5.01 & 5.02, 5.04 & 5.05, 5.07 & 5.08;

• (v) At Level 6, units 6.01 & 6.02, 6.04 &6.05, 6.07 & 6.08;

• (vi) At Level 7, units 7.01 & 7.02, 7.04 & 7.05, 7.07 & 7.08;

• (vii) At Level 8, units 8.01 & 8.02, 8.04 & 8.05, 8.07 & 8.08;

• (viii) At Level 9, units 9.01 & 9.02, 9.04 & 9.05, 9.07 & 9.08; and

• (ix) At Level 10, units 10.01 & 10.02, 10.04 & 10.05, 10.07 & 10.08.

(kk) providing a second lift to the 10 storey residential tower;

(ll) an updated schedule of all external materials and finishes (including materials samples, colours and coloured elevations/perspectives). The schedule must show the materials, colour, finish and application methods (where relevant) of all external walls, roof, fascias, window frames, glazing types, cladding, doors and fences and must confirm the following:

• (i) specification and design of glass, colour and patterning to exterior façade having regard to the plans tabled at the VCAT hearing, being:
  • Dwg No 001 General Overview of Façade,
  • Dwg No 002 Edge of Building Showing Grain,
  • Dwg No 003 Façade Variation, and
  • Dwg No 004 Façade Colourback Study;
• (ii) the requirements of conditions 48 and 49.

1. All development and use must accord with the endorsed plans. Any alterations must be approved in writing by the Responsible Authority.
2. Floor levels shown on the endorsed plan(s) must not be altered or modified without written consent of the Responsible Authority.
3. Access to all areas affected by an easement or caveat must be maintained.
4. As part of the ongoing consultant team, Armsby Architects or an architectural firm to the satisfaction of the responsible authority must be engaged to oversee the design and construction to ensure that the design quality and appearance of the approved development is realized.

1. Before the plans are endorsed, an acoustic report prepared by a suitably qualified acoustic engineer must be submitted to and approved by the Responsible Authority. The report must prescribe the form of acoustic treatment to:
   • (a) protect nearby dwelling occupants (including future residents within the building) with a direct interface to commercial tenancies above, next to or below from associated commercial noise sources, including but not limited to loading dock (including reversing beepers), plant and equipment;
   • (b) protect all dwelling occupants from external noise sources with specific regard to Swan Street and off-site commercial areas;
   • (c) protect all dwelling occupants from external noise sources associated with the abutting rail system to achieve an internal noise level of 50dBA Lmax in bedrooms and 60dBA Lmax in living rooms and to achieve internal structure-borne vibration induced noise levels not exceeding 40dBA in bedrooms and 50dBA in living rooms; and
   • (d) the mechanical plant equipment and ventilation mechanisms installed or constructed as part of the development.
2. Within two months of all of the uses commencing, an updated acoustic report prepared by a suitably qualified acoustic consultant must be submitted to the satisfaction of the Responsible Authority demonstrating that the required level of noise attenuation has been achieved in accordance with condition 6 of the permit or, if not, what works must be undertaken to achieve the required levels of noise attenuation.
3. The recommendations contained in the approved acoustic reports pursuant to conditions 6 and 7 must be implemented and completed and where they are recommendations of an ongoing nature, must be implemented and maintained all to the satisfaction of the Responsible Authority.

1. Before any of the development is occupied, an Operations Management Plan prepared by an appropriately qualified person to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the Operations Management Plan will be endorsed and form part of this permit. The Operations Management Plan must address the following:
   • (a) access arrangements to the tenancies;
   • (b) internal signage;
   • (c) security arrangements;
   • (d) servicing arrangements; and
   • (e) complaint resolution mechanisms.

1. Before any of the development is occupied, a Car Parking Management Plan prepared by an appropriately qualified traffic consultant must be submitted to and approved by the Responsible Authority. When approved, the Car Parking Management Plan will be endorsed and form part of this permit. The Car Parking Management Plan must address the following:
   • (a) The provision of one car space to each residential apartment (82) and loft (15) with a notation that any remaining spaces in the basement residential car park (Dwg TP102) will be allocated to either an apartment or loft that wants to purchase 2 car spaces.
   • (b) The number and location of the car spaces in the basement commercial car park. All these spaces will be available for public use.
   • (c) an internal signage plan for the commercial carpark including directional arrows and signage, informative signs indicating location of disabled bays, small parking bays, bicycle parking, exits, restrictions, pay parking system etc;
   • (d) the security arrangements for occupants of the development;
   • (e) details of way finding, cleaning, security of end of trip bicycle facilities;
   • (f) policing arrangements and/or formal agreements; and
   • (g) details regarding the management of loading and unloading of goods and materials for the commercial and residential uses including the provision of a spotter to assist truck vehicles reversing into the loading/unloading area.
2. The approved Car Parking Management Plan must be implemented and thereafter maintained and complied with to the satisfaction of the Responsible Authority. No alterations may be made to the endorsed plan without the prior written consent of the Responsible Authority.

1. Within 12 months of the development commencing, the design of the Shared Zone for the length of Byron Street must be prepared by an independent and suitably qualified professional to the satisfaction of the Responsible Authority and in consultation with the Responsible Authority. The design must be submitted to and approved by the Responsible Authority. The design of the Shared Zone must provides details including pavement widths, surface treatment and methods of traffic management to control traffic and speed to allow for safe pedestrian movement and to manage the potential conflicts between traffic generation, bicycles and pedestrians using Byron Street.
2. Before the residential and loft/commercial uses commence, all works associated with the provision of the Shared Zone as set out in condition 14 must be undertaken and completed at the cost of the permit holder to the satisfaction of the Responsible Authority.

1. Before the retail uses and operation of the public commercial carpark commences, all works associated with removing the car parking on the east side of Green Street and reconfiguring any linemarking on Green Street must be undertaken and completed at the cost of the permit holder to the satisfaction of the Responsible Authority.

1. Alarms associated with the commercial premises must be directly connected to a security service and must not emit any adverse or detrimental noise beyond the premises.
2. The amenity of the area must not be unreasonably detrimentally affected by the use or development, through:
   • (a) the transport of materials, goods or commodities to or from land;
   • (b) the appearance of any buildings, works or materials;
   • (c) the emission of noise, artificial light, vibration, smell, fumes, smoke, vapour, steam, soot, ash, dust, waste water, waste products, grit or oil; or
   • (d) the presence of vermin.
3. All buildings must be maintained in good order and appearance to the satisfaction of the Responsible Authority.
4. Noise emanating from any commercial uses within the development, including plant and other equipment must comply with the State Environment Protection Policy N-1 at all times to the satisfaction of the Responsible Authority.

1. The area set aside for the parking of vehicles, together with the associated access lanes as delineated on the endorsed plan must:
   • (a) be designed, provided and completed to the satisfaction of the Responsible Authority before the development starts;
   • (b) thereafter maintained to the satisfaction of the Responsible Authority;
   • (c) be made available for such use at all times and not used for any other purpose;
   • (d) be properly formed to such levels that it can be used in accordance with the endorsed plan; and
   • (e) be drained and sealed with an all weather seal coat.
2. Bicycle access must at all times be clearly signed and marked, to the satisfaction of the Responsible Authority.
3. Prior to the occupation of any dwelling or loft, car parking must be allocated in accordance with the Car Parking Management Plan approved under condition 10.

1. All loading and un-loading for Retail Tenancy 1 must be carried out within the confines of the property boundaries to the satisfaction of the Responsible Authority.
2. The loading areas must be maintained in a clean and tidy manner at all times to the satisfaction of the Responsible Authority.
3. Loading movements at the Green Street loading dock are restricted to between the hours of 7am and 10pm, seven days a week, unless with the prior written consent of the Responsible Authority.
4. No more than one delivery or one commercial garbage collection at the Green Street loading dock is permitted within any half hour period during the hours of 6pm and 10pm Monday to Friday, 1pm to 10pm Saturdays, and 7am to 10pm Sundays and Public Holidays, unless with the prior written consent of the Responsible Authority.
5. All loading dock deliveries and commercial garbage collection must be conducted behind the closed loading dock roller shutter door at all times to the satisfaction of the Responsible Authority.
6. Unless with the prior written consent of the Responsible Authority, no trucks greater than 12.5 metre Heavy Rigid Vehicles may deliver goods to the commercial uses via Green Street at any time.

1. Drainage must be provided for the site including landscaped and pavement areas, all to the satisfaction of the Responsible Authority.
2. The permit holder must apply for a Legal Point of Discharge under Regulation 610 - Stormwater Drainage of the Building Regulations 2006 from Yarra's Building Services Unit.
3. Before the development starts, a drainage design for the entire site, along with hydraulic calculations must be submitted to and approved by the Responsible Authority.
4. All piping and ducting, other than for drainage above the ground floor storey of the building must be concealed.
5. Any storm water drainage within the property must be provided and connected to the nearest Council pit of adequate depth and capacity (legal point of discharge), to the satisfaction of the Responsible Authority in accordance with section 200 of the Local Government Act 1989 and Regulation 610.

1. Any road(s), footpath(s) or other infrastructure adjacent to the development that is damaged as a result of the development authorised under this permit including trenching and excavation for utility service connections must be reinstated to the satisfaction of the Responsible Authority and at the cost of the permit holder.
2. The proposed new vehicle crossings are to be constructed in accordance with the City of Yarra Standard Drawings and Specifications all to the satisfaction of the Responsible Authority.
3. The finished floor levels for pedestrian access must be such that pedestrian access meets Australian Standards.
4. Existing footpath, kerb and channel, and road pavement surface levels must not be altered unless with the prior written consent of the Responsible Authority.

1. All waste from retail tenancies 1 & 2 must be collected via a private collection service to the satisfaction of the Responsible Authority.
2. Prior to the occupation of the development, the permit holder must submit a Waste Management Plan generally in accordance with the Waste Management Plan prepared by Leigh Design, dated 18 November 2010 to the satisfaction of the Responsible Authority. Once approved, the Waste Management Plan will then form part of this permit. The Waste Management Plan must address the following:
   • (a) the size and height of any proposed waste collection vehicle(s);
   • (b) details of the hours of waste and recycling collection;
   • (c) weekly collection frequency (not more than twice weekly unless with the written consent of the Responsible Authority);
   • (d) waste containers to accommodate the waste generated, including how the general and recycling waste will be collected;
   • (e) appropriately sized bin storage area;
   • (f) the actual collection process and procedures; and
   • (g) a mechanism to ensure future owners and occupiers of the development (residential and commercial) are made aware of all collection agreements.
3. The collection of all waste must be in accordance with the approved Waste Management Plan. Rubbish, including bottles and packaging material, must at all times be stored within the building and screened from external view and be managed to the satisfaction of the Responsible Authority in accordance with the approved Waste Management Plan.

1. 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.
2. 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.
3. The development, once commenced, must be completed to the satisfaction of the Responsible Authority.
4. 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.

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.
7. No drainage, effluent, waste, soil or other materials must enter or be directed to railway land or stored or deposited on railway land.
8. 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.
9. 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.
10. 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.

1. This permit will expire if:
   • (a) the development is not commenced within three years of the date of this permit.
   • (b) the development is not completed within five years of the date of this permit.

The Responsible Authority may approve extensions to these time limits if requests are made within three months of expiry.

[1] Created by the reasons why a permit is required as listed in the Information boxes in this decision

[2] Clause 10.04 (in part): Planning authorities and responsible authorities should endeavour to integrate the range of policies relevant to the issues to be determined and balance conflicting objectives in favour of net community benefit and sustainable development for the benefit of present and future

[3] [2010] VSC 583

[4] At the time of the Rozen decision, the provisions equivalent to clause 10.04 were included in clause 11.02 of the State Planning Policy Framework contained in all Victorian Planning Schemes.

[6] [Macedon Ranges Shire Council v Romsey Hotel Pty Ltd [2008] VSCA 45; (2008) 19 VR 422, 433; McDonald v Guardianship and Administration Board [1993)] 1 VR 521, 528

[7] The University of Melbourne v Minister for Planning (includes Summary) (Red Dot) [ 2011] VCAT 469

[8] In NJJJKT Pty Ltd v Whitehorse CC [2008] VCAT 1410 Senior Member Liston stated:

I think there needs to be a greater emphasis on the importance of metropolitan policies in relation to urban consolidation, housing diversity, and affordability. I do not say that neighbourhood character is of less importance, rather I say that in each decision consolidation diversity and affordability need to be at the forefront of our thinking, and not merely a background hum.

[9] Clause 43.01-2 states "No permit is required under this overlay ... To develop a heritage place which is included on the Victorian Heritage Register."

[10] Section 73(1) of the Heritage Act sets out the matters that must be considered.

[11] Section 73(1A) of the Heritage Act sets out matters that may be considered. We agree with the Council this is a discretion but not an obligation.

[12] The Council Minutes of 19 April 2011 resolved that the heights be made consistent with the MSS that envisages preferred maximum heights of up to 5-6 storeys with development directed away from low rise heritage and residential areas towards strategic redevelopment sites, and then changes the area containing Dimmeys to a preferred 4 storey height although there is no reference to 4 storeys in the MSS.

[13] The Council Minutes resolved to put the draft structure plan out for 6 weeks public consultation "as soon as possible" and to rely on an additional ground of refusal at this hearing "the scale of the building is inconsistent with the Draft Swan Street Structure Plan adopted for consultation".

[14] Extract from clause 11.04-2 Activity Centre Hierarchy (page 10 of 21 in clause 11)

[15] Based upon the submission by the Swan Street Traders' Association

[16] Panel report on Melbourne Planning Scheme Amendment C20

[17] Levin v Port Phillip CC and Ors [2001] VCAT 2014

[18] Steven Jolson Architecture Pty Ltd v Port Phillip CC [2004] VCAT 2154

[19] Pentas Property Investments Pty Ltd v Port Phillip CC [2005] VCAT 2196.

[20] A matter we discussed further in the following section

[21] A3 drawings dated 2 June 2011 labelled Dwg No 001 General Overview of Façade, Dwg No 002 Edge of Building Showing Grain, Dwg No 003 Façade Variation, and Dwg No 004 Façade Colourback Study

[22] For example, Smith Street includes developments and permits for 6-8 storey buildings including the 8 storey Banco development; and Bridge Road includes developments and permits for between 4 & 8 storeys and one development up to 10 storeys at 243-249A Bridge Rd & 34 Hull St.

[23] Design Consortia Australia v Yarra CC [2009] VCAT 2573

[24] Particular views of landmark buildings that have specific protection are the church spire on the corner of Watkins Street and St Georges Road, North Fitzroy; St Patrick's Cathedral & Royal Exhibition Building

[25] Section 2.4 Building Height, page 22 of City of Yarra Built Form Review

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

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

[28] Page 31 of the urban context report.

[29] As is sought in the Guidelines for Higher Density Residential Development

[31] This was not tabled during the hearing

[32] Lazzcorp Brunswick Pty Ltd v Stonnington CC [2002] VCAT 889

[33] Kilker Pty Ltd v Stonnington CC [2004] VCAT 341

[34] Pomeroy Pacific Pty Ltd v Moreland CC No. 2 [2011] VCAT 475, which included Presiding Member M Read.

[35] One case he tabled was a liquor licence decision of the then Vice President Ross and Member Hewet in Woolshed Pub @ Central Pier Pty Ltd v Director of Liquor Licensing (Occupational and Business Regulation)[2009] VCAT 2216. We note the discussion regarding sleep disturbance was in the context of music and patron noise where the nearest residential properties were 240 metres away. These circumstances are quite different to this proposal.

[36] For example, near this site one railway track divides into two tracks and the evidence noted this creates an additional noise as the trains move through the railway points.

[37] Australian Standard 2670.2-1990 Continuous and shock-induced vibration in buildings (1-80Hz)

[38] JG (Vic) Pty Ltd v Boroondara CC [2007] VCAT 1152

[39] We have a similar opinion about Mr Tweedie's footnote that these comments were adopted by the Tribunal in FKP Lifestyle Pty Ltd v Boroondara CC [2008] VCAT 162 as it appears VicRoads was not a party to that proceeding and there is no indication in the reasons that the Council thought changes were required to the surrounding road network. In other words, there was no identified traffic impact in that case.

[40] At our request, Ms Brennan tabled a letter from the Council's Chief Executive Officer dated 2 June 2011 stating (in part) "Council agrees to cooperate with VicRoads and the Permit Applicant and will endeavour to implement the Shared Zone in Byron Street".

[41] The car parking report lodged with the application stated 52 movements (which was relied upon by Ms Dunstan) and Mr Walsh's evidence was 51 movements.

[42] We have already mentioned the overall vehicle movements and Mr Walsh gave evidence this proposal could generate up to 30 deliveries in varying sized trucks each day.

[43] That is, the removal of on-street parking along both sides of Green Street for a total distance of 40 metres south of Swan Street and the installation of electronic parking signage.

[44] Mr Walsh tabled a number of garbage truck specifications that all had working heights under 6.3 metres.

[45] which were uncontested at those hearings

[46] Cabrito Holdings Pty Ltd v Yarra Ranges SC [2001] VCAT 2304 and Station Homes Pty Ltd v Darebin CC [2002] VCAT 448

[47] Clara Mews Pty Ltd v Stonnington CC [2009] VCAT 1934 and Design Consortia Australia v Yarra CC [2009] VCAT 2573

[48] FKP Lifestyle Pty Ltd v Boroondara CC & Ors (Red Dot) [2008] VCAT 162 and CSTP Pty Ltd v Boroondara CC [2010] VCAT 548

[49] Colquhoun & Ors v Yarra CC [2010] VCAT 1710

[50] Bamfa Nominees v Darebin CC [2009] VCAT 1034

[51] Merri Merri Developments Pty Ltd v Darebin CC (includes Summary)(Red Dot) [2010] VCAT 1045

[52] A site assessment is to ascertain the nature or previous land uses and activities on the site and what is known about contamination associated with these uses.

[53] Polizzi v Darebin CC (includes Summary)(Red Dot) [2009] VCAT 1573

[54] The Hasan decision referred to is Hasan v Moreland CC [2005] VCAT 1931