1. The decision of the Responsible Authority is set aside.
2. In permit application PLN11/0953 a permit is granted and directed to be issued for the land at 1-3 Railway Place, Cremorne in accordance with the endorsed plans and on the conditions set out in Appendix A. The permit allows:
   • Development of a nine (9) storey building, use of the land for dwellings, reduction in the car parking requirements under Clause 52.06 and waiver of the loading bay requirements under Clause 52.07.

1. Ms C Heggen, town planner
2. Mr J Walsh, traffic engineer
3. Mr T Marks, acoustic engineer
4. Mr R Deutscher, architect
5. Mr B de Waard, sustainable design consultant.

Mr M Belmar of counsel, instructed by Clarendon Lawyers, appeared for Michael Parker and Others.

Mr George Greenberg tabled a written submission, but did not otherwise participate in the hearing.

Mr A Harris tabled a written submission on his own behalf and on behalf of Save Dimmeys.

The submissions of Mr Greenberg and Mr Harris have been considered by the Tribunal.

Construction of a nine storey building comprising a ground level café, basement car parking, and a combination of one and two bedroom apartments.

Application under Section 77 of the Planning and Environment Act 1987 (the Act) to review a decision to refuse a permit.

Design and Development Overlay (DDO5 City Link Exhaust Stack Environs)

Clause 34.01-1: A permit is required to use land for dwelling on the basis that the frontage of a dwelling at ground floor level exceeds 2.0 metres.

Clause 34.01-4: A permit is required to construct a building or construct or carry out works.

Clause 52.06: A permit is required to reduce (including to reduce to zero) the requirements to provide the number of car parking spaces required under this clause.

Clause 52.07: A permit is required to reduce or waive the requirement to provide a loading bay.

The review site is located on the north side of the street, opposite the East Richmond Railway Station. It has a frontage to Railway Place of 19.2 m, a depth of 30.5 m and an area of 585 m2. The site is currently used as a car park. A lane runs along the site's western boundary. Access to the car park is obtained from this lane.

The site is located within a predominantly commercial area comprising a mix of retail, cafes, bars and restaurants. Residential uses are also present.

Abutting the site to the north, is the rear of commercial properties fronting Swan Street. To the west, beyond the lane, is a group of five, three storey dwellings. This group of dwellings enjoy vehicular access from both the lane and Green Street, to which the dwellings have a frontage. On the opposite side of Green Street, is the side boundary of Dimmeys, a former retail establishment currently undergoing redevelopment for a mix of uses including retail, office and residential uses, and a commercial car park. A ten storey tower rising above the retained heritage building forms part of the approval of that site's redevelopment.

To the east is a single storey commercial building. A supermarket and car park are located further to the east. The south side of Railway Place is the railway line. Richmond Railway Station is located to the west, and Burnley Railway Station to the east.

ACCC Pty Ltd tas AWC Property v Yarra CC (Red Dot) [2012] VCAT 1180

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

Juliano, Furletti and Scott and Ors v Melbourne CC (1999/19285)

1. This is an application to review the decision of the Responsible Authority to refuse permission for the construction of a nine storey building at 1-3 Railway Place, Cremorne. The Responsible Authority issued a Notice of Refusal to Grant a Permit for the following reasons:

The proposal does not provide an appropriate transition in height with the surrounding building stock, contrary to clauses 15.01-2 (Urban Design Principles) and clause 22.10 (Built form and design policy) of the Yarra Planning Scheme.

The proposal would unreasonably impact the amenity of the dwellings to the west by virtue of overshadowing, contrary to clauses 15.01-2 (Urban Design Principles) and clause 22.10 (Built form and design policy) of the Yarra Planning Scheme.

The proposal would unreasonably impact the development potential for adjoining sites due to the proximity of windows to the boundary, contrary to clauses 15.01-2 (Urban Design Principles) of the Yarra Planning Scheme.

The absence of an on-site loading bay for the café would unreasonably impact car parking and traffic conditions in the area.

1. The council refused to grant a permit notwithstanding a recommendation from council officers to grant a permit subject to conditions.
2. A number of objectors have also submitted statements of grounds and are parties to this proceeding. With respect to the objector's statements of grounds, it is relevant that by Order dated 26 October 2012 the Tribunal limited the grounds that the objectors could raise at the hearing to:
   • Use of the land for dwellings (clause 34.01-1)
   • Waiver of car parking spaces (clause 52.06-2)
   • Loading and unloading of vehicles (clause 52.07).
3. That Order was made having regard to Clauses 34.01-3 and Clause 34.01-4 of the Yarra Planning Scheme, which detail the matters which are exempt from the notice requirements of Section 52(1)(a), (b) and (d), the decision requirements of Section 64(1), (2) and (3) and the review rights of Section 82(1) of the Act.
4. In this case, there is no substantive dispute between the parties that the review site is appropriate for a development comprising a mix of uses in a multi storey building. We agree that there should be no dispute about these matters. The site exhibits a range of attributes that make it eminently suitable for this form of development. These include:
   • The site is zoned Business 1 under the Yarra Planning Scheme. The purpose of that zone is to encourage the intensive development of business centres for retailing and other complementary commercial, entertainment and community uses.
   • There are no overlay controls that affect the development of the land.
   • The state and local planning policy framework seeks to:
     • Encourage residential consolidation of established urban areas;
     • Facilitate residential and commercial development in existing activity centres where good access to public transport exists;
     • Encourage the design of energy efficient buildings;
   • Ensure that development improves housing choice, makes better use of existing infrastructure and improves energy efficiency of housing;
   • Achieve high quality urban design and architecture that reflects the particular characteristics, aspirations and cultural identity of the community;
   • Encourage the provision housing to accommodate future housing needs and preferences of the local community;

• The site abuts the north side of the railway line between Richmond and Burnley Railway Stations and is proximate to the East Richmond Railway Station.
• The site is located within or on the boundary of a major activity centre.
• The site has a regular configuration and with an area of 585 m2 is relatively large for this inner urban locality. The site is currently used as a car park. Surrounding land uses are predominantly commercial comprising a mix of retail, cafes, bars and restaurants. Residential uses are also present.

1. The council and the objectors appropriately acknowledge the site's attributes and the support offered by the applicable provisions of the planning scheme for a development of the site
2. However, the council and the objectors submit that notwithstanding the above, the development of the review site is constrained by the site's physical context and that the proposal does not respond well to those constraints. Similarly, it is submitted that at 9 storeys, the proposed height is excessive and is not supported by those provisions of the planning scheme which encourage new development to be respectful of the municipality's traditional low scale built form character.
3. The issues in this case therefore, can be categorised as follows:

1. Does the height and scale of the proposal represent an appropriate design response to the site's physical and strategic context? 2. Does the proposal contribute to unacceptable amenity impacts?

1. Does the proposal achieve an equitable sharing of development potential with neighbouring properties?

1. Have the car parking, loading/unloading and traffic management issues been adequately resolved? 2. What is the appropriate acoustic treatment to achieve an acceptable internal amenity?
2. Having considered the submissions and the evidence, and having inspected the site, neighbouring properties and the surrounding area, we have concluded that a permit should issue for this proposal.
3. Our reasons follow.

Does the height and scale of the proposal represent an appropriate design response to the site's physical and strategic context?

1. A central issue for the council and the objectors in this case relates specifically to the height of the building. In this respect, the council submits that the proposed 9 storey height is excessive because the proposal ignores what the council described as the "clear intent" of the planning scheme to retain the municipality as a low rise urban form with pockets of higher development. In support of this submission, the council refers to Clause 21.03 of the Municipal Strategic Statement which states that Yarra will have a distinctive identity as a low-rise urban form, with areas of higher development and highly valued landmarks, and Clause 21.05-2 which, under the heading Urban Design, describes the municipality in the following terms:

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. The low-rise urban form that constitutes much of the municipality is mostly in the one to two storey range, with some three and four storey buildings. The pockets of taller buildings include the high-rise housing estates, some industrial (or ex-industrial) complexes and the landmark towers, spires and signs. Activity centres being generally Victorian and Edwardian in origin, are generally two storeys, with some higher signature buildings.

This characteristic is important as it helps to differentiate Yarra from the urban form of adjoining cities, particularly the City of Melbourne, thus strengthening its sense of place.

1. A number of objectives and related strategies are included under this clause. Relevantly Objective 17 is "to retain Yarra's identity as a low-rise urban form with pockets of higher development". The following related strategies are also included:

Strategy 17.1 Ensure that development outside activity centres and not on Strategic Redevelopment Sites reflects the prevailing low-rise urban form.

Strategy 17.2 Development on strategic redevelopment sites or within activity centres should generally be no more than 5-6 storeys unless it can be demonstrated that the proposal can achieve specific benefits such as:

• 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.

Strategy 17.3 Apply the Landmarks and Tall Structures policy at clause 22.03.

Strategy 17.4 Apply the Residential Built Form policy at clause 22.13.

1. The council submits that the physical and strategic context of this site is such that it is not regarded as a location that qualifies it as a site where a pocket of higher development is appropriate. On this basis, the council submits that a building of 5-6 storeys would be consistent with retaining Yarra's low rise urban form, while also making a reasonable contribution to consolidation, housing diversity and related objectives.
2. The council also relied on those provisions of the draft Swan Street Structure Plan[1] that identifies a preferred maximum building height of 5-6 storeys in the area generally north of the railway line and south of Swan Street.
3. The draft Structure Plan is not a seriously entertained planning proposal. It does not form part of the planning scheme and while it has been subject to a level of public consultation, the council has not adopted it, and the council has not exhibited a planning scheme amendment that seeks to incorporate the recommendations of the structure plan into the planning scheme.
4. The draft structure plan contains a range of what appear to be soundly based urban design ideas, especially as they relate to the enhancement of public spaces and improved connectivity through the study area and into its hinterland. It is not however, a document we are prepared to accord any significant weight, especially with respect to matters such as the specification of preferred maximum building heights. With respect to these matters the structure plan is at an embryonic stage of its approval process, and we can have little confidence that the specification of 5/6 storey preferred maximum heights will ultimately form part of the planning scheme, having regard to this locality's strategic context[2].
5. The council also relied on the evidence of Mr Holdsworth in support of its submission that a building of 9 storeys is not appropriate on this site. It was Mr Holdsworth's evidence that the applicant has not demonstrated that the proposal achieves specific benefits in the terms of Clause 21.05, specifically because it is too high and does not have upper level setbacks. It is his evidence that the building design prejudices the equitable development rights of the site to the east and compromises the amenity of the roof gardens and balconies of the Green Street townhouses. We address these latter two issues subsequently in these reasons. It is his evidence that the proposed building should be modified to 5-6 levels in total, with a 2-3 level podium and 2-3 levels set back behind the podium.
6. The council further submits that the physical context of the site imposes constraints on the development potential of the site. These constraints include the fact that the site does not enjoy a main road frontage, it has an interface with a residential use to the west, and other built forms to the north and east, and the site abuts a railway line to the south that creates difficulties around the acoustic treatment of any building. The council regards the site as an infill development opportunity. In broad terms the council submits that this proposal sets an undesirable precent for future development in this precinct, which if followed on adjoining properties, will result in a poor urban form and public realm outcome along the railway alignment.
7. Mr Belmar generally supports the council's submissions about the excessive height of the building. His principal concerns relate to the impacts of the proposed 9 storey building on the amenity of the Green Street townhouses, to the west of the review site. Mr Belmar's clients reside in those three storey townhouses. He submits that the proposal should be limited to three storeys, akin to his client's townhouses.
8. We are not persuaded by the submission of the council and the objectors that the objective of Clause 21.05 to retain Yarra's identity as a low-rise urban form with pockets of higher development, constrains to any significant degree the acceptability of a nine storey building on this site.
9. While there is some conjecture as to whether the site should be regarded as being part of the Swan Street Major Activity Centre, we have proceeded on the basis that the site is part of the activity centre, or at least is so strongly influenced by its proximity to the activity centre, that the distinction is of no significance. Because of the site's Business 1 zoning, its proximity to Swan Street, its proximity to the railway station, and the predominance of commercial uses within the site's environs, we can see no logical basis for excluding it from the activity centre.
10. The site is also a strategic redevelopment site in the terms of clause 16.01-3 of the State Planning Policy Framework[3].
11. Consequently strategy 17.2 of Clause 21.05 contemplates buildings greater than 5/6 storeys in height where it can be demonstrated that the proposal can achieve specific benefits. The benefits identified are not exhaustive and they do not constitute criteria with which compliance must be achieved to qualify for a height greater than 5/6 storeys. Criteria or benefits other than those included in Clause 21.05 could be used to demonstrate that a building higher than 5/6 storeys is acceptable, on any given site. Similarly, there will inevitably be circumstances in which the benefits that are included in Clause 21.05 have varying degrees of relevance to a particular proposal[4]. We also emphasise that Clause 21.03 and Clause 21.05 constitute only part of an extensive range of policies and provisions contained in the planning scheme that, to varying degrees are relevant to a consideration of this proposal.
12. Having regard to the benefits nominated in strategy 17.2 of Clause 21.05, we find that the proposal performs well against each of the following.

1. There is inevitably a degree of subjectivity involved in a judgement about a building's architectural excellence. Planning schemes commonly call up "design excellence" or "architectural excellence" as an objective or criteria for assessing the acceptability of proposed buildings, but there is rarely any useful objective criteria included to enable a judgement to be made. In this respect, we endorse the findings of the Tribunal in Richmond Icon Pty Ltd v Yarra CC[5] that queried the usefulness of "architectural excellence" in planning schemes as a basis for deciding whether a proposal is acceptable. Nevertheless, in this case, the council criticises the architecture of the building on the basis that it attempts to assume a landmark status on a site that is an infill site and should therefore be developed in a manner that does not dominate its context. This submission however does not usefully address the issue of architectural excellence as a basis for allowing a building to exceed the preferred 5/6 storey height. Ms Heggen on the other hand described the building as one that will make a worthwhile contribution to the Richmond skyline, and the next generation of higher built forms around the Swan Street MAC. Mr Deutscher is similarly complimentary.
2. The Tribunal in other cases has grappled with the concept of architectural excellence. In Richmond Icon the Tribunal adopted the following observations made in Pentas Property Investments Pty Ltd[6]:

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(now clause 15.01) 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 have concluded that this proposal achieves an "acceptable" degree of architectural excellence. We find Mr Deutscher's evidence on the building's architecture to be well reasoned and balanced. He described the building in the following terms:
   • It is fit for purpose and built to last.
   • It contributes positively to the new or emerging context of the locality.
   • It activates Railway Place.
   • The building is visually well organised.
   • It is a building that is clear in what its purpose and function is.
   • The structure and detail of the building fits together as part of a clear approach to style and function.
   • Chosen materials are robust and will wear well.
   • The building is logically laid out internally to provide flexibility for living, access to natural light and ventilation.
2. We agree with that assessment.

Best practice environmental sustainability objectives in design and construction

1. Mr De Waard provided expert evidence on this issue. It is his evidence that the proposed building is capable of achieving a 4 star, Best Practice Rating using the Green Star Multi Unit Residential Rating tool, the criteria relied on by the council. Ms Markus advised that a 4 star rating is considered acceptable to the council. Mr De Waard acknowledged that the achievement of a 4 star rating is dependant on a commitment to a range of management initiatives and minor amendments to the proposed plans. We accept Mr De Waard's evidence that these are matters capable of being achieved through permit conditions, and that they are not matters that are of such complexity that they should trouble us about their likely implementation.

Positive contribution to the enhancement of the public domain

1. The starting point for any consideration of this proposal's enhancement of the public domain is the recognition that Railway Place, to which the review site has its primary frontage, is lacking in terms of many of the features that contribute to a pleasant, safe, attractive and functional public domain.
2. The proposal will contribute positively to the enhancement of that public domain, and we have a reasonable expectation that it will set a benchmark for the public domain impacts of subsequent developments in this precinct. The ground level of the building will provide effective activation of the street frontage through the incorporation of the café and the residential entrance lobby. An increased level of surveillance will be available because many of the upper level dwellings have living areas oriented to the public domain.
3. We were advised that the council is reasonably advanced in preparing plans to implement public domain improvements in and around the East Richmond Station precinct. We are satisfied that the proposed building does not compromise in any significant way the implementation of those plans. In many respects, we regard the building as being complementary to the council's objective to enhance the quality of the public spaces and the functionality of the precinct.

1. The council submits that the provision of affordable housing is not a relevant consideration in this matter, because the proposal does not make any provision of housing specifically designated for rental accommodation, housing for low income households or social housing.
2. The term "affordable housing" is another of those terms often used in planning schemes, in much the same way as the term "architectural excellence". There is rarely any objective criteria attached to either term. The decision maker is therefore often forced to make a judgement about a proposal in the absence of any objective criteria to assist in the making of that judgement. This is unfortunate, because in the case of housing affordability it is a relevant and increasingly significant factor in planning for the growth of metropolitan Melbourne.
3. In the present case, the absence of social housing or designated low income housing in the proposal does not disqualify the proposal from meeting, or at least contributing to, the benefit specified in Strategy 17.2. In the event that the proposal did make provision for that form of housing, it would be uncontentious that the proposal achieves that benefit, but in the absence of that form of housing, a judgement still needs to be exercised about the proposal's contribution to housing affordability. Affordable housing is not necessarily the same as social or low cost housing.
4. Housing affordability is a difficult and complex issue. In planning terms, it is a concept that extends beyond a simple reliance on the dollar value of the property, and includes a consideration of a proposal's attributes in terms of its access to public transport, employment, retail, entertainment and commercial facilities. A proposal that increases the supply of dwellings in locations that enjoy these attributes may very well contribute to housing affordability objectives.
5. Some recognition of this is reflected in Clause 16.01-5 Housing Affordability of the State Planning Policy Framework. The objective and strategies of that policy include but are not limited to low income or social housing. Reference is also made to the need for diversity in housing supply, and increased housing choice. Locational factors such as the proximity of housing to jobs, transport and services are also referenced in that clause.
6. While not a critical factor in our decision on this application, we are satisfied that the increased supply of one and two bedroom apartments on a strategic redevelopment site in a major activity centre, offered by this proposal, does make a contribution toward broad housing affordability objectives.

1. The failure of the proposal to provide significant upper level setbacks is not a significant shortcoming in the design of this proposal. The building typology that flows from the provision of upper level setbacks may be necessary to achieve acceptable outcomes on particular sites or in response to a particular strategic context. It is not necessary on this site. We have recorded our findings above on the acceptability of the building's architectural expression, activation of the public domain, achievement of ESD and housing affordability objectives. For the reasons we elaborate on subsequently, upper level setbacks are not necessary to achieve acceptable amenity impacts, or to achieve an equitable sharing of development potential with neighbouring properties.
2. Clause 22.03 is a Landmarks and Tall Structures policy. The objective of the policy is to maintain the prominence of Yarra's valued landmarks and landmark signs. It is relevant that the review site is located close to the Ball Tower on the Dimmeys building in Swan Street. The tower is one of several identified in the policy as a landmark. The policy encourages new buildings within the vicinity of the landmarks to be designed to ensure the landmarks remain as the principal built reference. It is policy to:
   • Maintain the prominence of Yarra's valued landmark signs.
   • 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.

1. The council and objectors submit that the current proposal at nine storeys would adversely impact on the objective of retaining the prominence of the tower as a landmark. Mr Holdsworth's evidence supports that position.
2. The Dimmey's Ball Tower is located to the west of the review site on the opposite side of Green Street. Dimmeys, a former retail establishment, is currently undergoing redevelopment for a mix of uses including retail, office and residential uses, and a commercial car park. A ten storey tower rising above the retained heritage building forms part of the approval of that site's redevelopment. The impact of the tower component on the Ball Tower was the subject of detailed consideration by the Tribunal in the decision about the redevelopment of the Dimmey's building. The Tribunal made a number of pertinent findings about this issue. Relevantly the Tribunal found that:
   • The policy 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"[7].
   • The policy is not intended to preserve and protect every possible view from public spaces[8].
   • Key or important views need to be carefully dealt with, not every incidental view[9].
   • There are relatively few places from which the ball tower can be well viewed and not all views are of equal worth. Swan Street views are critical to its public appreciation[10].
3. We concur with the approach adopted by the Tribunal in that case. The Tribunal in that case concluded:

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[11].

1. Our accompanied inspection of the review site during the course of the hearing has assisted in allowing us to asses the affect of the proposal on the prominence of the ball tower as a landmark. The review site is separated from the Dimmey's building by a distance (at its closest point) of about 30m, and from the ball tower, which is located on Swan Street, by in excess of 50m. The review site is also setback from Swan Street by about 35m, with intervening single and double storey buildings between it and the Swan Street. When viewed from within Swan Street, and at other vantage points to the north, the proposed building will be seen, but we are satisfied that because of the physical separation, the ball tower will remain as the principal built reference within the key or important views. We have reached the same conclusion about views from the south and the east. The ball tower is not visible from all locations in this plane. In Church Street for example, above the East Richmond Station, which could be regarded as an important vantage point, the ball tower is visible and will continue to be seen because the review site sits forward of the tower. Obstruction of the view of the ball tower would occur at a point to the south of the railway station, but that level of obstruction is not sufficient to significantly impact on the ball tower remaining the principal built reference from key and important views.
2. The council's policy at Clause 22.10 Built Form and Design, encourages the design of new buildings to limit the impact on the amenity of surrounding land while making a positive contribution to the streetscape through high standards in architecture and urban design. Largely the policy requires the consideration of the issues we have addressed above. With respect to amenity issues, we address these matters subsequently, but there are no other matters contained in that policy that would persuade us that the proposal is not an acceptable response to the site's physical and strategic context, and the outcomes contemplated by that policy.
3. We are therefore satisfied that the scale and height of the building is acceptable having regard to the physical and strategic context of the site. The local policy objectives seeking to retain the municipality's low-rise urban form, with areas of higher development, is most appropriately understood in the context that a building of 5/6 storeys is regarded by local policy as being consistent with the achievement of that objective. Higher buildings are contemplated for sites in activity centres and on strategic redevelopment sites. For the reasons we have detailed above, this proposal performs well against the special benefits identified in Clause 21.05 with respect to those sites. The proposal is otherwise acceptable having regard to the broad sweep of State and local policy, especially those relating to development in activity centres.

Does the proposal contribute to unacceptable amenity impacts?

1. The review site is located adjacent to a development of three storey townhouses that have a frontage to Green Street to the west. A lane that runs in a northerly direction off Railway Place separates the two properties.
2. Mr Belmar's clients reside in those three storey townhouses. He submits that the proposal will have an unacceptable, adverse impact on the amenity of his client's townhouses, principally by virtue of overshadowing, overlooking, visual bulk impacts, and obstruction of views. Mr Belmar submits that the proposal should be limited to a height of three storeys, akin to that of his client's townhouses.
3. Prior to assessing the specific amenity impacts of the development on the Green Street townhouses, it is appropriate that we outline the context within which those amenity impacts must be assessed.
4. Firstly, for the reasons we have outlined above, we are unable to conclude that there is any policy or strategic basis to support the submission that a development of the review site should be limited in height to 3 storeys. Any objective reading of the applicable policy framework, and of the zone provisions, leads to the conclusion that a site having an area in excess of 500m2, located within a major activity centre, within 50 m of a railway station, is a site upon which a building of some substantial scale is encouraged. The appropriate scale and height of a development will be determined by, among other things, the specific characteristics of the site, the nature of its interfaces, the design of the proposed building, and on the basis of an assessment of its amenity impacts.
5. Secondly, the assessment of amenity impacts must always be contextual. That is, when determining whether the impacts of a proposal are acceptable or not, the assessment must have regard to a range of factors, including the zoning of the land, and the policy outcomes encouraged for the site and the wider locality by the planning scheme's policy framework.
6. This is not say of course that amenity impacts are not a relevant consideration[12], but the assessment of those impact must have regard to the matters outlined above.
7. Relevant contextual factors in this case include that the review site and the Green Street townhouses are both zoned Business 1, and they are both located within a major activity centre.
8. This is not a case in which the development site and its neighbours are zoned for residential purposes, and within which conventional residential standards and expectations apply. Nor is this a case in which a development is proposed at the edge of a commercial zone, interfacing with dwellings in a residential zone. In that circumstance, decision makers typically seek to achieve a balance in the assessment of amenity impacts based on both the proponent of the development under consideration, and the residential neighbour, adjusting their expectations about an acceptable outcome.
9. In this case, the fact that both sites are zoned Business 1 is significant. Both sites are subject to the same zone purpose, being relevantly to "...encourage the intensive development of business centres for retailing and other complementary commercial, entertainment and community uses". The decision guidelines relating to development in the Business 1 zone requires the consideration of a proposal's interface with adjoining zones, especially the relationship with residential areas, but there is no specific equivalent requirement to consider the interface with a residential use within the zone. The objectives, standards and decision guidelines of Clause 55 do not apply, other than as a guideline, but not for developments of four or more storeys[13].
10. Clause 22.07 is a policy applying to applications for use and development in the Business 1 (and other) zones. The policy supports the policy objectives of encouraging residential uses into activity and mixed use areas. It also aims to ensure that the viability of industrial and business areas is maintained. The policy states that there is a need to ensure that new residents do not have unrealistic expectations of the level of amenity that can be achieved in these areas. A series of guidelines is included, aimed at ensuring that the amenity impacts on new and existing residents are considered, within that policy context.
11. Mr Belmar submits that the combination of the amenity impacts of this proposal, contribute to an outcome that is not consistent with the concept of a net community benefit, in that whatever benefit flows from the granting of a permit, is achieved at the expense of a reduced amenity for his clients.
12. We acknowledge that that the amenity of the Green Street townhouses will change because of the construction of the proposal. Increased overshadowing will occur, and the introduction of a 9 storey building within 3 metres of the townhouses eastern façade will have consequential impacts such as the change to the current outlook enjoyed by the residents of those townhouses, potential for overlooking, loss of views, and the like.
13. The internal layout of the townhouses is relevant to our assessment of the proposal's impact on the amenity of the townhouses. In this respect we note that the townhouses have dual aspects to their living areas and some have dual balconies. The living areas are at the highest levels and their bedrooms at the rear, lower levels, facing the right of way.
14. We do not agree with Mr Belmar's submission that his clients are entitled to expect that the existing amenity enjoyed by them should not change. Our task in this matter is to assess whether the changes that will occur are acceptable or unacceptable. It is to that task that we now turn. Our findings on the specific amenity impacts associated with the proposed development, are as follows:

1. Ms Heggen in her evidence provided a detailed description of the shadow impacts of the proposal. There was no dispute about the description of the impacts provided by Ms Heggen. The issue in dispute is whether those impacts are unacceptable. Ms Heggen's description is quoted below:

The proposal will cause additional shadow to be cast onto the 5 x 3 storey townhouses to the west in the morning..........Diagram Dl depicts the existing morning shadow conditions for the 5 townhouses. After midday the townhouses will start to cast shadow on their own balconies on their east elevation with the sun arc moving around to the western sky in the afternoon. Diagram D2 confirms that the northern most townhouse 5 will not be affected by the proposal and after about 9:30am townhouse 4 will also be free of shadow. Overshadowing of townhouses 2 and 3 will largely contract away from 11:30am onwards and most of the rooftop deck of townhouse 1 will also be free of shadow from that time. The habitable room windows on the east elevation to townhouse 1 will be shaded until about midday.

1. Ms Heggen also provided some comparative shadow diagrams for a building of 7 levels (six levels plus mezzanine) of the same footprint. These diagrams illustrated a reduced amount of shadowing in the 9:00 am to 10:00 am period with the shadows disappearing at about 10:30 am, a half hour earlier that the review proposal.
2. We have concluded that, in the context of this site and having regard to the matters discussed above, these impacts are acceptable. While the proposal will impose increased shadow impacts as described above, the impacts are not so great as to diminish the amenity of the affected dwellings below that which could reasonably be expected for a residential development located on this site in a major activity centre.
3. As we have mentioned earlier, the internal layout of the townhouses is also relevant to our consideration of this issue. Each of the townhouses provides a single occupancy over 3 levels with balconies to habitable rooms provided on both the Green Street (west) and laneway (east) elevations at first and second levels, with the exception of Townhouse 1 which has a balcony on its west elevation and rooftop. Car parking is provided at ground level. Each townhouse has a rooftop deck. The extent of the overshadowing, the fact that the shadows cast will be removed from the townhouses by about midday, the dual aspect of the Green Street townhouses and the opportunities this offers for alternative sources of solar access, are sufficient to persuade us that the shadow impacts are acceptable.

1. The weight to be given to the loss of views occasioned by the development of land in an urban context is a matter that has been considered by the Tribunal on several previous occasions. In Juliano, Furletti and Scott and Ors v Melbourne CC[14] Justice Kellam and Member Gilfillan said that:

... in a location where planning controls allow and encourage high or medium density developments, a view is something that is fortuitously enjoyed and cannot be the sole or even major determinant of what type of development may be permitted in adjacent areas. ... Secondly, in circumstances where planning controls apply and which encourage medium rise buildings, we do not conclude that there can be a reasonable expectation that a view will be retained particularly where preferred or prescribed height controls are in place (as in this case). ... The protection of private views in areas where high or medium rise buildings are encouraged would in our view cause significant inhibition upon development and would be opposed to the central thrust of current planning policy.

1. These principles have been adopted, applied and reinforced by the Tribunal on many subsequent occasions[15].
2. There is no question that some of the residents of the townhouses will lose some or all of their easterly views, from particular vantage points, depending on their location within the Green Street development. Specifically, the two townhouses we inspected, will lose their easterly outlook entirely from habitable room windows and roof decks. Oblique views to the north east and south east will continue to be available from the roof decks.
3. Currently, all of the townhouses enjoy 360 degree views from their roof decks and the internal spaces at lower levels capture parts of these views. The availability of most of the existing available views will change over time, as a consequence of ongoing development that will occur in the activity centre in accordance with the planning scheme. For example, the development of the Dimmeys building to the west of Green Street, is approved and construction has commenced. The ten storey component of that development will change the medium range outlook to the west.
4. The emerging urban landscape around, but not close to, the townhouses, including the south side of the train tracks, will also change the longer range outlooks over time, as will the potential for land to the rear of the Swan Street shops. It is reasonable to expect that development here may have some closer, but lower, impacts. Further to the east, beyond the review site, there are a number of sites that have development potential.
5. Even with all of these determined, expected and 'likely to emerge' changes, the outlook, views and sky views from the townhouses are protected from the north, south and immediate west from significant change. We are satisfied that, despite the changes that are imminent or reasonably expected, the occupants will continue to enjoy outlooks, albeit more confined than those presently enjoyed, in the long term. This is not a case in which all the views currently enjoyed by the residents of the townhouses, will be obliterated by the proposal. The proposal will bring about a level of change that is consistent with the expectations created by the planning scheme. The residents of the townhouses, will continue to enjoy a level of outlook and views consistent with the site's activity centre location.

1. The townhouses have dual aspects to their upper level living zones and their bedrooms are at the rear lower levels facing the right of way. There are rear balconies denoted as Private Open Space on the application plans.
2. These spaces and habitable rooms are separated from the review site by a right of way that is 3.25 metres wide.
3. We are satisfied that the designer of the proposed development has considered the potential overlooking impacts and has provided a well conceived and acceptable outcome for the occupants of both buildings.
4. The review building's west wall is to be built off the boundary, about 4.0 metres from the townhouses. There are a series of 'eyebrow' windows built within the setback, designed to ameliorate direct views into the townhouses and to restrict even the most acute views to around 9.0 metres. The opportunity for overlooking into and conversely out of the townhouses, is therefore very limited. The design as proposed is an acceptable outcome[16].

Does the proposal achieve an equitable sharing of development potential with neighbouring properties?

1. It is inevitable that in established urban areas that are subject to redevelopment pressures, redevelopment will typically occur on a piecemeal or site by site basis. Care must be therefore exercised when considering each individual application to ensure that each proposal has proper regard to the development potential of neighbouring sites, so that potential is not unreasonably affected. The achievement of planning objectives for the locality as a whole will be prejudiced in circumstances where an equitable sharing of development potential with neighbouring properties is not accomplished.
2. The review site has an interface with sites to the east and the north that, having regard to the provisions of the planning scheme, can be regarded as "underdeveloped" and therefore exhibit development potential.
3. The sites to the north are at the rear of the Swan Street shops. These sites are affected by heritage overlays and each of the expert witnesses agreed that, whether they are developed individually or collectively, are likely to be of a lower scale than the current proposal. The site to the east however is not affected by a heritage overlay, and whether developed on its own or as a part of a consolidation, could be developed to a higher scale than the Swan Street properties. That eastern site is subject to the same zoning and policy provisions as the review site.
4. While it is a matter of speculation as to what might occur with respect to the consolidation of sites to the north and the east, we must nevertheless be cognisant of what might reasonably be expected to occur, based on the applicable planning scheme policies.
5. With respect to these matters, two issues warrant some scrutiny and amendment to the review building.
6. The Guidelines for Higher Density Residential Development contain some broad principles and objectives to consider when assessing the relationship between developments, but are not specific in identifying separation distances for example.
7. With respect to the northern boundary, some balconies are setback 2.8 metres and some habitable room windows are setback 4.2 metres. We have concluded that no part of the building should be closer than 3.0 metres to the north boundary and no windows to living spaces closer than 4.5 metres to the north boundary. The adoption of these setbacks allows for a total separation of 6.0 m for balconies and non habitable room windows, and 9.0 m between habitable room windows, assuming that subsequent developments on adjoining lots adopt equivalent setbacks. These separation distances are acceptable in the context of this major activity centre.
8. In the case of the east boundary, we are less concerned with the setback and more concerned with the two east facing dwellings. When the site to the east is developed, there is a real prospect that these dwellings will face a blank wall as their only choice of outlook from their balconies. This is a poor design outcome. Accordingly, if these dwellings are configured to have a north or south aspect to their living areas and their bedrooms and bathrooms to the east, the outcome will be acceptable.
9. Accordingly, the east facing dwellings should be reconfigured to so that their living spaces are orientated to the north or the south,
10. We have imposed conditions to give effect to these changes. Subject to these changes, we are satisfied that the proposal achieves an equitable sharing of development potential.

Have the car parking, loading/unloading and traffic management issues been adequately resolved?

1. It is proposed to provide 22 parking spaces at the ground level of the building, accesed via the western lane. Parking is to be provided using a car stacker system. The parking is provided at a rate of 1 space per dwelling for the two bedroom apartments (14 spaces), and 0.28 spaces per one bedroom apartments (8 spaces). No parking is proposed for the café.
2. A provision of 52 spaces is required to comply with Clause 52.06 of the planning scheme. A reduction of 30 spaces is therefore applied for.
3. The council acknowledges that the review site, by virtue of its strategic location, and associated access to public transport, is a site that qualifies for consideration for a parking reduction. The council submits however that the 30 space reduction is not justified, having regard to the traffic and parking conditions at this location.
4. The objectors also submit that a parking reduction of 30 spaces is not justified. The objectors submit that this location is affected by overflow parking from the range of sporting and entertainment facilities that operate either within the activity centre or nearby, in particular the MCG, AAMI Park, and the Tennis Centre, the increasing use of which is contributing to both traffic congestion and use of publicly available parking. We were also referred to approvals for developments in the activity centre including the Dimmeys development and a recent decision to allow increased patron numbers at the Richmond Club Hotel. The objectors submit that this proposal will contribute to what they regard as an unacceptable situation, and the time has come to say "enough is enough". Concern is also expressed about the use of the lane to provide access to the proposal, and the amenity impacts associated with that aspect of the proposal.
5. The lane is a public access way and the applicant is entitled to use it to provide vehicular access to the review site, in the same way that the residents of the Green Street town houses and other land owners, use it to access their properties.
6. With respect to the quantum of car parking proposed, we have been assisted in our assessment, by the evidence of Mr Walsh. His evidence highlights the availability of public transport in this location, which he describes as excellent. Convenient train, tram and bus routes operate within convenient walking distance of the site. We agree with Mr Walsh's assessment that this fact reduces the site's dependence on motor vehicles as a mode of transport, compared to a similar development in a less centralised location.
7. Mr Walsh also undertook an analysis of car ownership data for one and two bedroom apartments in Richmond, Cremorne and the City of Yarra as a whole, and concluded that, based on that data a demand for 32 parking spaces could be anticipated for a development of this type in these areas. Having regard to this site's activity centre location and its access to public transport however, Mr Walsh concluded that the proposal is likely to generate a lower parking demand than that identified for other locations in the municipality. Mr Walsh also relied on the existing on street parking restriction operating in the area, that further discourage future residents from parking on street. A provision of 22 parking spaces is, in Mr Walsh's, evidence sufficient to accommodate the likely parking demand for residents of the proposal.
8. With respect to visitor parking, Mr Walsh acknowledged that a likely demand of 4 spaces (evenings and weekends) and 3 spaces (weekdays) combined with the planning scheme requirement for 2 spaces for the café, is likely to create a reliance on six off site parking spaces.
9. Mr Walsh concluded that the proposed provision of parking is acceptable because it is consistent with both State and local planning policies that encourage increased use of sustainable transport options, and discourage the overprovision of on site car parking for developments that enjoy good access to public transport[17]. Similarly, Mr Walsh concluded that, based on parking surveys undertaken by his firm, public car parking is available to a degree sufficient to accommodate the demand generated by this proposal.
10. The objectors were critical of Mr Walsh's evidence, especially with respect to the timing of the parking surveys. They submit that the surveys do not accurately reflect the parking demand in the area generally, nor the impact of ongoing development in the area.
11. We are satisfied that the proposal will be largely self sufficient in terms of long term, resident parking.
12. With respect to short term parking, primarily associated with visitors, we acknowledge that this locality is one that is experiencing high demand for car parking, and this demand can be expected to increase over time. We have however concluded that the proposed provision is acceptable having regard to the policy outcomes and objectives of the planning scheme, as they relate to a site in the activity centre, and a site which benefits from excellent access to public transport. The demand for off site parking generated by this proposal is relatively small and capable of being accommodated within the existing parking supply.
13. The management and provision of car parking in the activity centre is a matter that is beyond the scope of this Tribunal's consideration of this application. To the extent that existing parking conditions are likely to be adversely affected by ongoing development within and around the activity centre, these matters are most appropriately dealt with by the council and other authorities through the implementation of a range of mechanisms designed to control and manage traffic and car parking issues on a centre wide basis. Part of the management solution does include encouraging the use of transport modes other than the motor vehicle, at least in part by limiting the supply of parking to residents, especially in areas where long term on street parking is not feasible. This proposal is consistent with that policy objective.
14. We also agree with Mr Walsh that the number of additional traffic movements generated by this proposal (7 additional movements in peak hours) is not significant and the capacity of the street network will not be adversely affected by that small increase.
15. With respect to the waiving of the loading bay for the café, we are satisfied that this small commercial use does not warrant the setting aside of land for loading and unloading purposes. Adequate opportunity exists for loading and unloading on street.

What is the appropriate acoustic treatment to achieve an acceptable internal amenity?

1. With respect to the acoustic treatment of the proposal especially in relation to the site's interface with the railway line, there is no dispute in this matter that the proposed dwellings can be suitably treated to achieve an acceptable level of internal amenity.
2. The issue in dispute however relates to the condition proposed by the council that all dwelling occupants are to be protected 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
   • internal structure-borne vibration induced noise levels not exceeding 40dBA in bedrooms and 50dBA in living rooms.
3. The condition requiring the nominated internal noise level has been adopted by the council on the basis that it replicates the condition imposed by the Tribunal on the permit for the Dimmeys development, on a site that also abuts the railway line and is about 30 m to the west of the review site. The Tribunal had also adopted the same internal noise levels for a proposal at Stewart Street, Richmond[18].
4. The applicant submits that the internal noise level specified in the condition is too low and that a level of 55dBA Lmax in bedrooms and 60dBA Lmax in living rooms ought to apply.
5. The applicant relied on the evidence of Mr Marks in support of its submission. We note that Mr Marks gave evidence to the Tribunal in both the Dimmeys case and the Stewart Street case.
6. In both of the cases referred to above, the Tribunal provided detailed reasons for the decision to apply the nominated internal noise levels. In both cases, the Tribunal acknowledged that each case would need to be assessed on its own merits to determine what the internal noise level should be on any given site.
7. In this case, Mr Marks differentiated the review site from the site that was the subject of the Stewart Street decision, on the basis of the different contexts of the two sites. Mr Marks however acknowledged the proximity of the review site to the Dimmeys site, and confirmed that his analysis relied on the same material used in the Dimmeys case. Mr Marks acknowledged that he was not aware of any change to the external noise environment subsequent to the Dimmeys decision.
8. It was Mr Mark's evidence that he supports an internal noise level of 55dBA Lmax in bedrooms on this site, on the basis of evidence relating to internal audibility, which was evidence he did not present in the Dimmeys and Stewart Street cases[19], or at least not in the same way that he presents it in the present case.
9. It is Mr Mark's evidence that an internal noise level of 50dBA Lmax in bedrooms, is too low because compliance with this standard will necessitate "excessively high performance glazing" which will reduce noise intrusion from all sources and will result in very low internal noise levels. Consequently, noise transfer between apartments will become a significant issue and cause for greater complaints by occupants.
10. We are not persuaded by the evidence of Mr Marks that we should adopt a condition requiring an internal noise level that differs from that previously applied by the Tribunal on a site proximate to the review site and subject to very similar external noise sources. As we have stated above, in the Dimmeys decision the Tribunal provided a comprehensive analysis of the issue of internal noise levels, in arriving at the conclusion that it did. The prospect of compliance with that standard leading to internal noise levels being too low, does raise another dimension to what is clearly a complex issue. It is not however, an argument that carries sufficient force in our minds that warrants us applying a different standard to that recently applied by the Tribunal on a proximate site.

1. It follows from the above reasons that it is our conclusion that the decision of the Responsible Authority should be set aside and a permit issued.
2. In deciding the conditions to be included on the permit we have had regard to the "without prejudice" conditions provided to the Tribunal by the responsible authority and the submissions and evidence of the parties in addition to the matters that arise from our reasons.

Development of a nine (9) storey building, use of the land for dwellings, reduction in the car parking requirements under Clause 52.06 and waiver of the loading bay requirements under Clause 52.07.

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 decision plans prepared by Armsby Architects (received by Council on 10 August 2012) but modified to show:
   • (a) the building setback from the northern boundary so that no part of the building is closer than 3.0 metres to the north boundary and no windows to living spaces are closer than 4.5 metres to the north boundary;
   • (b) east facing dwellings reconfigured so that their living spaces are orientated to the north or the south;
   • (c) the bay windows to dwellings 5-5 and 6-5 hinged to orientate north;
   • (d) the location of all ancillaries (including air conditioner units etc) visually screened from views from street level;
   • (e) in relation to bicycle parking spaces adjacent to the east title boundary:
     • (i) replace 'Ned Kelly' style racks with 'tow rails' as per appendix E of the Traffix Group expert witness statement dated 20 December 2012 with at least 36 resident bicycle spaces provided;
     • (ii) provide a minimum 10 visitor bicycle parking spaces within the front setback;
     • (iii) the 1m blind aisle extension be maintained clear of the bicycles;
     • (iv) bicycle racks are positioned to ensure ease of access (taking into account handle bar width, etc); and
     • (v) when bicycles are positioned on the racks, a minimum 1m path behind is maintained;
   • (f) bicycle signage as per clause 52.34-5 of the Yarra Planning Scheme;
   • (g) a mirror at the junction of the ROW and Railway Place, with a note confirming this must be installed at the Permit Holder's expense to the satisfaction of the Responsible Authority;
   • (h) the setback area along the western boundary constructed in a material other than bluestone to clearly differentiate the ROW from private property;
   • (i) the finished floor levels along the edge of the of the development's setback area set a minimum 40mm higher than the edge of the bluestone ROW;
   • (j) a set of highly detailed 'typical' elevations to demonstrate 'craftsmanship' in the quality and application of façade finishes and details including illustrating the design logic supporting the selection of the various components;
   • (k) a detailed lighting plan for all publically accessible areas including private, communal and the public laneways ensuring lighting is baffled to minimise light spill;
   • (l) a planter or raised paving in the forecourt at the southern boundary of the site, at least as high as the current planter bed to prevent stormwater from Railway Place from entering the site;
   • (m) a gate at the western end of the northern setback/passage. The gate must be locked at night and may remain open during the day;
   • (n) a schedule of materials and finishes (including materials samples, colours and coloured elevations/perspectives). The schedule must:
     • (i) 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
     • (ii) provide further detail of the concrete panels, with vertical ribbing or other similar treatments;
   • (o) all works recommended in the endorsed Acoustic Report referred to in condition 5 (where relevant to show on plans);
   • (p) all works recommended in the endorsed ESD report referred to in condition 10 (where relevant to show on plans); and
   • (q) all works recommended in the Wind report referred to in condition 12 (where relevant to show on plans).

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 plans must not be altered or modified. Any alterations must be approved in writing by the Responsible Authority.

1. 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 ensuring design quality and appearance of the approved development is realised as shown in the endorsed plans during the construction unless with the prior written approval of the Responsible Authority.

1. Before the plans are endorsed, an updated acoustic report to the satisfaction of the Responsible Authority and generally in accordance with the Marshall Day Acoustic evidence dated 18 December 2012 must be submitted to and approved by the Responsible Authority. Once approved, the acoustic report will be endorsed and will then form part of the permit. The report must be prepared by a suitably qualified acoustic engineer and include an assessment of how the requirements of State Environment Protection Policy N-1, accepted sleep disturbance criteria and relevant Australian Standards will be met and must prescribe the form of acoustic treatment to:
   • (a) protect all dwelling occupants from external noise sources, including nearby plant and equipment and train line vibrations;
   • (b) protect dwelling occupants from internal noise sources, including the café (including plant and equipment), residential plant and equipment, lift core, garage door and car stackers;
   • (c) protect nearby occupants from noise generated from the mechanical plant equipment (including residential air conditioner units), ventilation mechanisms, car stackers and garage doors installed as part of the development; and
   • (d) protect all dwelling occupants from external noise sources associated with the abutting rail system to achieve:
     • (i) an internal noise level of 50dBA Lmax in bedrooms and 60dBA Lmax in living rooms; and
     • (ii) internal structure-borne vibration induced noise levels not exceeding 40dBA in bedrooms and 50dBA in living rooms.
2. On the completion of the works referred to in condition 5 and within two months of the use starting, an updated acoustic report prepared by a suitably qualified acoustic consultant to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. Once approved, the acoustic report will be endorsed and will then form part of the permit. The updated acoustic report must demonstrate that the required level of noise attenuation has been achieved and:
   • (a) confirm the uses comply with condition 13 of the permit; and
   • (b) provide measurement data taken from inside the dwellings demonstrating compliance with State Environment Protection Policy N-1.
3. The recommendations and any works contained in the approved acoustic report under condition 5 and the updated acoustic report under condition 6 must be implemented and completed and where there are recommendations of an ongoing nature must be maintained all to the satisfaction of the Responsible Authority.

1. Deliveries to and from the land for commercial purposes may only take place between 7am and 10pm and in accordance with EPA Publication 1254 Noise Control Guidelines.

1. Waste collection must be undertaken in accordance with the EPA Publication 1254 Noise Control Guidelines.

1. Before the plans are endorsed, an amended Environmentally Sustainable Design Report to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the ESD report will be endorsed and will then form part of the permit. The ESD report must be generally in accordance with the ESD Assessment Report (Statement of evidence) dated January 2013, prepared by Sustainable Development Consultants but modified to:
   • (a) outline ESD commitments (i.e. not just options, or 'recommendations');
   • (b) commit to a minimum 4 star, green star rating, with associated ESD measures required;
   • (c) confirm the car park will be naturally ventilated;
   • (d) include protected (rain, intrusion, insects) window openings to facilitate the use of night purging opportunities. These openings can be small openings, separate to the main windows; and
   • (e) include exact window setbacks recommended in relation to:
     • (i) unit 2-6 bedroom 2 window (and similar apartments above); and
     • (ii) unit 2-5 bedroom 1 window (and similar apartments above).
2. Before the development is occupied, a building user's guide to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the building user's guide will be endorsed and will then form part of the permit. The building user's guide must be prepared by a suitably qualified person and must:
   • (a) outline the ESD initiatives incorporated into the development (as relevant to occupants); and
   • (b) confirm that all new residents will be provided with a copy of the building user's guide.

1. Before the plans are endorsed, a wind assessment report prepared by a qualified person to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the wind assessment report will be endorsed and will then form part of the permit. The report must include a detailed wind study of all communal areas and publically accessible areas (or a desktop study if considered suitable by the Responsible Authority).
2. In the event the wind assessment report required under condition 12 recommends measures are required to moderate wind impacts, those recommendation must be incorporated into the design to the satisfaction of the Responsible Authority and once constructed thereafter maintained 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 provided and completed to the satisfaction of the Responsible Authority prior to the commencement of the development hereby permitted;
   • (b) thereafter be 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 all to the satisfaction on the Responsible Authority.
2. Any redundant vehicle crossings must be broken out and reinstated with paving, kerb and channel of the surrounding area. The cost of these reinstatement works must be borne by the Permit Holder.
3. Any damaged road(s) and footpath(s) adjacent to the development site as a result of the development must be reinstated to the satisfaction of the Responsible Authority and at the expense of the Permit Holder.
4. All vehicle crossings must be constructed in accordance with City of Yarra Standard Drawings and Specifications.
5. The development's finished floor levels relative to the existing footpath and road levels must be such that pedestrian and vehicular access accord with the Australian/New Zealand Standard AS/NZS 2890.1:2004.
6. All existing kerb and channel, and road pavement surface levels should not be altered. Council may permit the adjustment of Building Line levels to provide access in accordance with AS/NZS 2890.1:2004.
7. Car stackers must be installed and maintained in accordance with Manufacture requirements and specifications and 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 produce any unreasonable noise emission beyond the premises.
2. The amenity of the area must not be detrimentally affected by the use or development including through:
   • (a) the transport of materials, goods or commodities to or from land;
   • (b) the appearance of any buildings, works or materials; and
   • (c) the emission of noise, artificial light, vibration, smell, fumes, smoke, vapour, steam, soot, ash, dust, waste water, waste products, grit or oil, or 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 the land including mechanical plant and other equipment, must not exceed those required to be met under State Environment Protection Policy (Control of Noise from Commerce, Industry and Trade), No. N-1, accepted sleep disturbance criteria and EPA Publication 1254 Noise Control Guidelines.

1. Before the development is occupied or by such later date as is approved by the Responsible Authority is writing, the landscaping works shown on the endorsed plans must be carried out and completed to the satisfaction of the Responsible Authority.
2. The landscaping shown on the endorsed plans must be maintained to the satisfaction of the Responsible Authority including that any dead or diseased or damaged plants are to be replaced.

1. The development must be provided with external lighting capable of illuminating access to each car parking spaces, storage, rubbish bin, recycling bin, pedestrian walkways, stairwells, lift, dwelling entrances and entry foyer. Lighting must be located, directed, shielded and of limited intensity so that no nuisance or loss of unreasonable amenity is caused to any person within and beyond the site, all to the satisfaction of the Responsible Authority.

1. Privacy screens as required in accordance with the endorsed plans must be installed before the building is occupied to the satisfaction of the Responsible Authority and maintained thereafter to the satisfaction of the Responsible Authority thereafter.
2. All piping and ducting, other than for drainage above the ground floor storey of the building must be concealed.

1. Before the plans are endorsed, a Waste Management Plan prepared by a suitably qualified person to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the Waste Management Plan will be endorsed and will then form part of the permit. The Waste Management Plan must be generally in accordance with the Waste Management Plan prepared by Leigh Design, dated 10 November 2011.
2. 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 any 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 Construction Management Plan will be endorsed and will then form part of the permit. The plan must provide for or 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) remediation of any damage to road and other infrastructure (limited to an area reasonably proximate to the site);
   • (d) 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;
   • (e) on site facilities for vehicle washing;
   • (f) the location of loading zones, site sheds, materials, cranes and crane/hoisting zones, gantries and any other construction related items or equipment to be located in any street;
   • (g) site security;
   • (h) management of any environmental hazards that the activities on-site pose including but not limited to: contaminated soil, materials and waste, dust, stormwater contamination from run-off and wash-waters, sediment from the site on roads, washing of concrete trucks and other vehicles and machinery, spillage from refuelling cranes and other vehicles and machinery;
   • (i) construction program;
   • (j) preferred arrangements for trucks delivering to the site including delivery and unloading points and expected frequency;
   • (k) parking facilities for construction workers;
   • (l) measures to ensure that sub-contractors/tradespersons operate in accordance with the Construction Management Plan;
   • (m) an outline of requests to occupy public footpaths or roads, or anticipated disruptions to local services;
   • (n) an emergency contact that is available for 24 hours per day for residents and the Responsible Authority in the event of relevant queries or problems experienced;
   • (o) the provision of a traffic management plan to comply with provisions of AS 1742.3-2002 Manual of uniform traffic control devices - Part 3: Traffic control devices for works on roads;
   • (p) a noise and vibration management plan showing methods to minimise noise and vibration impacts on nearby properties and to demonstrate compliance with Noise Control Guideline 12 for Construction (Publication 1254) as issued by the Environment Protection Authority in October 2008, to the satisfaction of the Responsible Authority. In this regard, consideration (amongst other matters) may be given to:
     • (i) using lower noise work practice and equipment;
     • (ii) the suitability of the site for the use of an electric crane;
     • (iii) silencing all mechanical plant by the best practical means using current technology; and
     • (iv) fitting all pneumatic tools operated near a residential area with an effective silencer on their air exhaust port.
2. During the construction, the following must occur:
   • (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. 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
4. The development once commenced, must be completed to the satisfaction of the Responsible Authority.

1. The excavation of soil should be preceded by a site assessment to determine the potential for contamination, in accordance with the Industrial Waste Fact Sheet - 1 Site Assessment (EPA Publication No. 1437, 2012).
2. Fill material used or generated during construction should be managed in accordance with Industrial Waste Fact Sheet - 2 Fill Material Management, 3 Segregation, and 4 Engineered / Structural Fill (EPA Publication Nos. 1438, 1439 and 1440, 2012).
3. All industrial waste generated during construction must be managed in accordance with EPA's Industrial Waste Resource Guidelines.
4. Construction and post-construction activities must be in accordance with Construction Techniques for Sediment Pollution Control (EPA Publication No. 275, 1991).
5. Construction and post-construction activities must be in accordance with Construction Techniques for Sediment Pollution Control (EPA Publication No. 275, 1991).
6. All wastewater generated by the proposed development must be connected to reticulated sewerage.

1. This permit will expire if one of the following circumstances applies:
   • (a) the development is not started within two years of the date of this permit;
   • (b) the development is not completed within four years of the date of this permit;
   • (c) the dwelling use is not commenced within five years of the date of this permit.

The Responsible Authority may approve extensions to these time limits if requests are made before the permit expires or within 3 months afterwards.

[1] David Lock & Associates, April 2012. In the Structure Plan the site is located within the Swan Street Retail Precinct and is adjacent to the East Richmond Station Village Precinct.

[2] Our findings in this respect are in line with those of the Tribunal in ACCC Pty Ltd tas AWC Property v Yarra CC (Red Dot) [2012] VCAT 1180. The Tribunal in that case also considered the weight to be given to the draft structure plan.

[3] The objective of Clause 16.01-3 is To identify strategic redevelopment sites for large residential development in Metropolitan Melbourne. The strategy is to identify strategic redevelopment sites that are:

• In and around Central Activities Districts.
• In or within easy walking distance of Principal or Major Activity Centres.
• In or beside Neighbourhood Activity Centres that are served by public transport.
• On or abutting tram, train, light rail and bus routes that are part of the Principal Public Transport Network and close to employment corridors, Central Activities Districts, Principal or Major Activity Centres.
• In or near major modal public transport interchanges that are not in Principal or Major Activity Centres.
• Able to provide 10 or more dwelling units, close to activity centres and well served by public transport.

[4] Our findings in this respect are in line with those of the Tribunal in Richmond Icon Pty Ltd v Yarra CC (includes Summary) (Red Dot) [2011] VCAT 2175, paragraph 43.

[5] [2011] VCAT 2175, paragraph 41

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

[7] [2011] VCAT 2175, paragraph 65.

[8] [2011] VCAT 2175, paragraph 65.

[9] [2011] VCAT 2175, paragraph 65.

[10] [2011] VCAT 2175, paragraph 66.

[11] [2011] VCAT 2175, paragraph 68.

[12] At clause 34.01-2 the Business 1 zone contains general amenity requirements relating to the use of land in the zone. The decision guidelines at Clause 65 also requires the responsible authority (an on review the Tribunal) to consider the effect of a proposal to use, subdivide or develop land the effect on the amenity of the area.

[13] Mr Cicero referred us to the decision of the Tribunal in JCT v Bayside CC [2009] VCAT 2064 which also considered this issue. The Tribunal in that case arrived at a similar conclusion (refer to paragraph 35).

[15] See for example VCAT reference No. P2719/2006 Investa Properties Pty Ltd v City of Yarra (May 2007), 139 Chetwynd St Pty Ltd v Melbourne CC [2004] VCAT 44 and Stanley Street PL v Melbourne CC [2004] VCAT 928, Deal Corporation v Stonnington CC [2010] VCAT 982.

[16] Objective 2.9 of the Guidelines for Higher Density Residential Development (DSE, 2004) references the overlooking provisions of Clause 55 of the planning scheme. The proposal achieves the objectives of the relevant clause.

[17] Clause 18 and Clause 21.06-3 Yarra Planning Scheme.

[18] P339/2012 ACCC Pty Ltd trading as AWC Property Holdings Pty Ltd v Yarra CC (9 August 2012). That application was refused by the Tribunal for reasons unrelated to internal amenity matters.

[19] In response to questions from the Tribunal, Mr Marks acknowledged that evidence was presented to the Tribunal about internal audibility in the Stewart Street case, but that the Tribunal adopted 50 dBa Lmax standard.