Victorian Civil and Administrative Tribunal|2010-08-12

RN Nominees (Vic) Pty Ltd & Ors v Melbourne CC & Ors [2010] VCAT 1336 (12 August 2010)

Sections 82 & 80 of the Planning & Environment Act 1987; Melbourne Planning Scheme; Development of a 21 storey building - use for offices and 89 residential apartments; Mixed Use Zone; Design and Development Overlay Schedule 38; State and Local Policy; Building height and form; Development potential of adjacent land; Car parking.

RN Nominees (Vic) Pty Ltd, Crown Melbourne Limited and Anthony & Mary Rose

RN Nominees (Vic) Pty Ltd & Ors v Melbourne CC & Ors [2010] VCAT 1336

Leave is given to substitute for the permit application plans, the amended plans circulated in accordance with the Tribunal's practice requirements, being plans:
- Prepared by: Rothe Lowman Architects.
- Drawing Numbers: TP1.01/D; TP1.02/D; TP1.03/C; TP1.04/D; TP1.05/D; TP1.06/D; TP1.07/D; TP2.01/D; TP2.02/D; TP2.03/D (all dated 16 June 2010) & TP2.04/C; TP2.05/C (both dated 31 May 2010).
The decision of the Responsible Authority is or varied.
In permit application tp-2009-864 a permit is granted and directed to be issued for the land at 33 Clarke Street and 280-282 City Road, Southbank on the conditions set out in Appendix A. The permit allows:
- The construction of buildings and works;
- Use of the land for the purpose of an office;
- The construction of two or more dwellings on a lot; and
- Reduction of the standard parking requirement for an office.
The permit is subject to the conditions contained in Appendix A to these reasons.

Mr Mark Naughton, solicitor of Planning & Property Partners Pty Ltd. He called the following witnesses:

Mr Stuart McGurn, town planner of Fulcrum Town Planners;
Mr Neil de la Couer, architect of Bird de la Couer; and
Mr Matthew Ballard, traffic engineer of Lambert & Rehbein.

Ms Sarah Porritt of counsel, instructed by Brigid Ryan, City of Melbourne Corporate Solicitor.

Mr Paul Kenna, solicitor of Kenna Law Pty Ltd for RN Nominees (Vic) Pty Ltd.

Mr Paul Connor of counsel, by direct brief, for Crown Melbourne Limited.

Mr Anthony Rose in person and Mr John Dowling, estate agent and valuer, for Anthony and Mary Rose.

The proposal is for construction of a 21 storey tower building accommodating two offices on the first floor and a total of 89 apartments over 19 further levels. Two car spaces and a loading bay/waste storage area would be provided on the ground level.

Design and Development Overlay - DDO18 (Southbank Plot Ratio) & DDO38 (Southbank Central Core).

Clause 32.04-5: construct two or more dwellings on a lot.

Clause 32.04-7: construct a building or construct or carry out works for a Section 2 use.

Clauses 43.02-2, 43.01-4 and 44.01-1: construct a building or construct and carry out works.

Clause 52.06-1: reduce the number of car spaces required by the table at Clause 52.06-5.

Lots 5, 1A, 2A and 'air rights' above common property on PS423923Q. The area to be developed is wedge-shaped with a frontage to Clarke Street (to the west) of 27.32m, an abuttal to Haig Lane (to the north) of 4.98m and an overall area of around 282m2. It is vacant. The common property provides vehicle access to three commercial buildings facing City Road. Clarke Street is an entry to the multi-storey Crown Casino car park to the north of Haig Lane.

(Reflecting oral reasons given at the hearing and subsequently modified)

Nine Hundred and Ninety-Nine Pty Ltd applied to the Council for a permit to construct a twenty one storey building comprising ground level offices and 89 dwellings on land at 33 Clarke Street and 280-282 City Road, Southbank.
The Council gave notice of the application and received a number of objections to the application.
The Council resolved to issue a Notice of Decision to Grant a Permit subject to conditions. The conditions included a requirement that the height of the building be reduced from 70 m to 50 m.
In Application for Review P1216/2010 three objectors, who are the owners of abutting or nearby properties used for commercial purposes, seek a review of that decision.
In Application for Review P1365/2010 the permit applicant seeks a review of certain conditions on the permit.
The two matters were heard together on 19, 20 & 21 July 2010. On a fourth hearing day oral reasons were given for our decision to grant a permit subject to varied permit conditions.
The Order directing the grant of a permit was dated 3 August, 2010.
We have subsequently received a request pursuant to Section 45 of the Victorian Civil and Administrative Tribunal Act 1998 for a written statement of reasons.
The following written reasons reflect the oral reasons given at the hearing and have been subsequently modified.
The proposal in this case is to construct a 21 storey building at a height of 70 metres, comprises 89 dwellings with ground level offices. The site is located at 33 Clarke Street and also includes 280-282 City Road, Southbank. A key feature of the proposal is that no car parking is proposed for the residential component.
33 Clarke Street is a vacant, irregularly configured lot with the ground level having an area of about 178 square metres and a total area of 282 square metres including common property over which air rights exists. 280-282 City Road comprises double storey commercial buildings with a frontage to City Road.
The issues in dispute in this matter can be categorised under the following headings:
- Is the proposal supported by the policy framework of the planning scheme?
- Does the proposal achieve a built form which is consistent with the design objectives and built form outcomes of the Design and Development Overlay (DDO38) and does it achieve an appropriate response to the Heritage Overlay (HO375)?
- Does the proposal respect the development potential of the adjacent land?
- Is the provision of car parking appropriate?
- Detailed design issues.
Our findings on each of these issues are as follows:

A comprehensive reading of the applicable policy framework leads to the inescapable conclusion that this site is located within an area specifically identified for substantial change in built form character. The future built form character of this area is to comprise high rise and high density residential development mixed with low density commercial development.
There is a consistent theme running through the policy framework from State to local levels which underpin the application of the detailed planning scheme controls affecting this site. We commented at the hearing that the outcomes sought for this locality are neatly distilled into the design objectives of Design and Development Overlay Schedule 38 (DDO38). These objectives are:
- To provide for appropriate spacing between buildings so as to maximize light, air and outlook.
- To create a high quality mixed use area with a high level of pedestrian amenity.
- To encourage high rise and high density residential development mixed with low density commercial development to complement and support the function of the city and service the local area.
- To ensure that the design of new development respects the development potential of adjacent sites.
- To encourage exemplary architecture and innovative building design.
- To orientate buildings to complement and respond to the unique Southbank street system.
We have reviewed the Council's draft amended Municipal Strategic Statement and draft Southbank Structure Plan. They are embryonic documents and we have not accorded them any weight. However there is nothing in either of those documents which have a bearing on our conclusion that a high rise, high density residential tower at this location is supported by the planning scheme's policy framework.
Our findings on the policy outcomes sought for this locality sets the context for our consideration of more detailed aspects of the proposal.

The Design and Development Overlay and the Heritage Overlay

DDO 38 is the primary statutory provision controlling the form of development to be undertaken on this site and locality. The site is also affected by a Heritage Overlay and a Land Subject Inundation Overlay (LSIO). We will address the heritage issues subsequently. Issues associated with the LISO have been adequately resolved through the application of Melbourne Water conditions.
There was some dispute about the interpretation of the DDO38 provisions, in particular whether a permit is actually required under the overlay. Clause 4 of the overlay states:

A permit is not required to construct a building or construct or carry out works if the building height and minimum building setback requirements of the table to this Schedule are met.

It was Mr McGurn's evidence that the requirements of overlay are met and that therefore a permit would not be required.
In determining whether a permit is required under the overlay, a judgement needs to be exercised about various matters, for example whether Clarke Street is a major street and/or whether the dominant streetscape necessitates a podium treatment. These are matters about which there can be legitimate debate and disagreement. The DDO is a not therefore a control which requires prescriptive standards to be met in order to determine whether a permit is required. In these circumstances the appropriate approach is for us to proceed to determine whether the design objectives and built form outcomes incorporated in the overlay are met by this proposal, rather than pursuing arguments about whether Clarke Street is a major street or not.
We note that Mr Naughton did not strenuously pursue the point that a permit is not required under the DDO.
DDO38 contains design objectives together with height, spacing and setback provisions. Compliance with those provisions leads to or creates a building typology characterised by towers up to 160 metres above a podium of 16 to 28 metres, setback from major street, side and rear boundaries and with a spacing between towers.
It was Mr Czarny's evidence and the objectors' submission that the proposal does not achieve the building typology encouraged by the overlay because the site is simply too small, and because it is too constrained by its context.
Mr Czarny's evidence was generally supported by objectors. It was submitted that site consolidation is necessary to achieve the building typology encouraged by the overlay and to achieve the full development potential of the balance of this block. It was submitted that the development potential of adjacent land would be severely if not fatally compromised by the grant of this permit.
It was Mr Czarny's evidence that his concerns about the proposed building would be rectified by reducing the height from 70 to 50 metres. The objectors however seek a refusal of the permit.
It is important to emphasise that the provisions of the DDO are discretionary. The provisions can be varied provided it is demonstrated that the overlay's design objectives and built form outcomes can be achieved. The discretionary nature of the overlay provisions lead us to conclude that the planning scheme does not seek to authorise the tower above podium typology as the only built form which can be accommodated here, to the exclusion of all other development options. Nor have we been persuaded that the planning scheme requires that sites be consolidated or that site consolidation represents the only or even the most effective means by which high density residential development can be achieved in this locality.
There are locations where site consolidation is specifically encouraged by policy or by overlay provisions. This locality however is not subject to provisions of that type. Similarly we were not provided with any material suggesting that government is seeking to facilitate site consolidation or is prepared to offer assistance in the form of, for example development incentives, to achieve site consolidation.
In this context and having regard to the very clear policy direction supporting high density residential development in this location it would be a very poor planning outcome if the development of this or other individual sites were curtailed pending the problematic achievement of site consolidation.
Having arrived at this conclusion it remains for us to be satisfied that the proposed building achieves the overlay's design objectives and built form outcomes notwithstanding the proposal's non compliance with the setback, spacing and height provisions of the overlay. We have concluded that the proposal does achieve those objectives.
In arriving at this conclusion we agree with the evidence of Mr de la Coeur that architectural quality is an important consideration in justifying variances from prescriptive standards. There was no substantive dispute that this building provides a high level of architectural presentation. Mr Czarny in particular was content with the architecture.
We disagree with Mr Czarny and the objectors that Clarke Street is an environment which warrants the provision of a conventional setback or podium treatment. Clarke Street is a short street which performs no real function beyond providing vehicle access to a car park and the rear and sides of commercial buildings.
Not all towers require a podium. There are circumstances where a podium treatment is not necessary to achieve the benefits normally ascribed to a podium. Objective 2.2 of the Guidelines for High Density Residential Development[1] does advocate the use of setbacks and podium treatments to maintain a pedestrian related scale and to mitigate unwanted wind effects, but it also states that taller buildings without a podium level create a dramatic urban form and this may be appropriate on some sites where the local context can support this approach. The context of this site allows such an approach to be taken.
In any event a podium effect to City Road is achieved by the permit condition limiting any subsequent development of 280-282 City Road to a height of 16 metres.
The design also incorporates what Mr de la Coeur called a shadow line to a height of about 4 metres. This treatment successfully responds to the dominant streetscape elements and achieves an appropriate transition from the heritage building fronting City Road. The shadow line treatment and the ground floor interfaces with the street are sufficient to create a pedestrian scale which is appropriate to this site's context. We note the evidence that a wind impact assessment is desirable, and that this may lead to the need for the inclusion of weather protection along Clarke Street.
The 6 metre setbacks to Clarke Street and Haig Lane specified in the DDO are unnecessary in terms of achieving any of the desired objectives or built form outcomes specified in the DDO. In particular the achievement of acceptable internal and external amenity impacts is not dependent upon the provision of these setbacks.
The proposal's design response to this site's physical and strategic context is entirely appropriate.
Before we turn to a consideration of the proposal's impact on the development potential of adjacent sites we record our findings on heritage issues.
We note that the relevant Heritage Building Identification Sheet does not include a statement of significance for this heritage place. We also note that Council's heritage adviser did not have any substantial objection to the proposal.
We are satisfied that the proposal will not adversely affect the significance of the heritage place for the following reasons:
- The proposal retains the classically inspired facades of the graded buildings facing City Road.
- The transition from the graded buildings to the contemporary new building is appropriate and consistent with the approach typically applied to tower developments in this locality, an approach characterised by the juxtaposition of higher built forms with retained heritage buildings.
- Mr Czarny was critical of this aspect of the proposal but we do not share those concerns.
- The condition on the Notice of Decision requiring subsequent development on the adjoining lots to be limited to a height of 16 m will ensure an ongoing low scale immediate context for the graded buildings.

The issue of whether the proposal respects the development potential of adjacent land is in many respects the critical issue in dispute in this case.
The Council and the objectors were critical of the proposal in terms of its response to this objective of the overlay.
The Council and to a large extent the objectors relied on Mr Czarny's evidence on this point. Mr Czarny said that the combination of the 70 metre sheer wall to the east, and the proposed (now approved) development at 248-252 City Road (a development known as Verge), together with the lack of site consolidation compromises the potential development for adjacent sites to be developed in accordance with the height, setbacks and spacing standards encompassed in the DDO.
Mr Czarny went so far as to say the proposal would blight the adjacent land but he subsequently retreated from that position on questioning from the Tribunal.
We have outlined our findings previously about site consolidation issues and we reiterate here that whilst site consolidation might be the "perfect" solution to the development of this precinct, it is not required by the planning scheme. Nor is it essential to achieve high density residential development in this location. Incremental development of individual sites in this locality might not be the optimum means to achieve planning policy outcomes for this locality but it is nevertheless contemplated by the planning scheme and it is typically the means by which areas designated for substantial change are developed, especially where there is no requirement for land consolidation.
We are satisfied that a grant of a permit for this proposal does respect the development potential of adjacent land. We have reached that conclusion because the balance of the land located between the review site and the now approved Verge development is capable of accommodating high density residential development generally in accordance with the standards of DDO38. The applicant's "block plan" which accompanied the permit application material, demonstrates this to our satisfaction.
Our acceptance of the block plan does not imply that this represents the only possible development solution for land adjacent to the review site. Any number of permutations and development options are possible especially given the discretionary nature of the standards of the DDO.
It should also be recognised that not all sites within the DDO will be suitable for high density residential towers. The DDO objectives do refer to high density development being mixed with low density commercial development to complement and support the function of the city and service the local area. We do not therefore need to be satisfied that all sites within the area affected by DDO38 must be capable of accommodating residential towers.
Finally the proposal's design response is appropriate in terms of creating development opportunities for adjacent sites. The sheer walls at a height of 70 metres with no setbacks to the eastern boundary creates the best possible design solution to preserve the opportunity for adjacent land to be developed to an equivalent or similar intensity.
The reduction in the height of the buildings to 50 metres makes no positive contribution in terms of respecting the development potential of adjacent sites.

We turn now to the issue of car parking.
The review site is affected by a parking precinct plan (PPP). The precinct plan has the effect of requiring a permit for proposals which seek to provide parking in excess of 1 space per dwelling. It is perhaps less clear whether a permit is required in circumstances where a proposal seeks to provide parking at a rate of less than one space per dwelling.
Ms Porritt submitted that under the provisions of the PPP no permit is required where parking is proposed at a rate of less than one per dwelling. Mr Naughton agreed.
Mr Connor however submitted that the PPP does not authorise the provision of no parking for residential development. He submitted that it is unrealistic to assume that this proposal would not generate any car parking and referred us to the panel report for Amendment C133 which introduced the PPP, which identified parking at a rate of 0.64 spaces per dwelling in Southbank as a typical situation. Mr Connor acknowledged that the parking generation of this proposal is likely to be less than that given that there is to be no parking.
Mr Connor's client is concerned that because of the site's proximity to the entrance of the Crown car park the car park will be used by residents of this development for long term parking to the detriment of the operations of the complex. Mr Connor sought to have a condition imposed on a new permit issue to the effect that owners and occupiers of the dwelling must not keep or garage cars in the Crown car park adjacent to the subject site.
Traditionally car parking rates have been based on a minimum number of spaces for each land use category. The PPP reverses that approach and specifies the maximum rather than the minimum provision of car spaces.
The rationale for this approach has its genesis in clause 18.02 of the State Planning Policy Framework the objective of which is:

To ensure access is provided to developments in accordance with the forecast demand taking advantage of all available modes of transport and to minimise impact on existing transport networks and the amenity in surrounding areas.

Clause 18.02-3 refers specifically to Southbank and states:

In the City of Melbourne, on site parking in the CBD and Southbank is to be limited in view of limited road capacity, good access to public transport and the need to preserve pedestrian amenity.

Clause 21.06-4 of the Council's MSS applies the principles of clause 18.02 to the local level and to specific areas within the City of Melbourne. It provides a comprehensive overview of the desirability of managing and limiting car dependency in areas well served by public transport and other transport modes. The limitation of the provision of car parking forms an important component of the outcomes sought by this policy.
The policy framework underpinning the PPP strongly supports a limitation on the provision of car parking for residential developments in Southbank. The purpose of the PPP is clear enough and it is intended to provide the opportunity for the consideration of proposals which provide parking at a rate greater than one space per dwelling. It does not provide the discretion to consider the impact of developments which provide parking at a rate of less than one space per dwelling.
We have concluded therefore that no permit is required to provide parking at a rate of less than one space per dwelling.
We do not think there is therefore a sufficient nexus between the permission that is required for this proposal and Mr Connor's suggested permit condition. We will not therefore impose that condition. We also express reservations about whether that condition would have been capable of achieving the intended outcome, its practical function and also its enforceability.
Had we been required to determine whether the non provision of parking for the residential component of this proposal is appropriate it would have been our conclusion that this is consistent with the policy outcomes for this locality. We note that the zero provision of parking for the residential component is supported by the Director of Transport to whom the application was required to be referred.
With respect to the provision of parking for the office component we accept Mr Ballard's evidence that four spaces at a rate of 2.5 square metres per 100 m2 is adequate for this locality.

A range of matters relating to detailed design issues were raised during the course of the hearing. We do not propose to itemise each of those issues.
We have not been persuaded that any substantial changes to the proposed building are warranted. In particular the condition requiring the reduction of height will be deleted.
The condition requiring a removal of projections will also be deleted. These projections are of a very minor nature but they do contribute to the architectural detailing and quality of the building. In the event that subsequent approvals or licences which may be needed for projections over the road reserves or private land are not able to be obtained the building can be modified accordingly. We have not been persuaded however that there is any design or planning justification which would warrant us requiring them to be removed.
We are content with the condition proposed by Ms Porritt as an alternative to condition 3(a) relating to the consolidation of land, subject to some rewording discussed at the hearing.
We accept Mr Ballard's specification of the preferred vehicle stacker system.
There will need to be consequential amendments to the permit to give effect to our findings on these matters.
While we have not recorded here all of our findings in respect to all of the matters raised during the hearing there were no other matters which would persuade us that a permit should not issue.

It follows from the above that it is our conclusion that the decision of the Responsible Authority should be varied and a permit be granted.
The permit will include the conditions contained in the Notice issued by the Responsible Authority with modifications which arise from these reasons.
In line with the Tribunal's normal practice we will not be including any Notes in our Order. What notes if any are included on the permit will be a matter for the Council to determine.

The construction of buildings and works;
Use of the land for the purpose of an office;
The construction of two or more dwellings on a lot; and
A reduction of the standard parking requirement for an office.

Prior to the commencement of any demolition, construction or carrying out of works on the land, the applicant must submit to the Responsible Authority three copies of plans drawn to scale generally in accordance with the plans substituted at the hearing of Applications for Review P1216/2010 and P1365/2010 but amended to show:
- (a) No works constructed on the land shown as common property and lots 3A & 4A on PS423923Q.
- (b) The height clearance of the loading bay compliant with the relevant Australian Standards (this may include an amendment to the height of the ground floor level).
- (c) Provision of a suitable device to provide warning of vehicles exiting the loading bay.
- (d) Detail of the layout, dimensions, numbers and signage of bicycle parking spaces.
- (e) Additional screening to improve internal amenity in accordance with the evidence of Mr de la Coeur presented at the hearing of Applications for Review P1216/2010 and P1365/2010.
- (f) Details of balustrade/window treatments of the bed sit apartments.
- (g) The recommendations of the Wind Impact Assessment referred to in Condition 34.
- (h) The provision of cross flow air ventilation systems in apartments where it is not provided for by way of openings in the exterior face of the building.

(h) The inclusion of car stackers on the ground level so as to provide a total of four car spaces, with independent access, for use in association with the offices.

These amended plans must be to the satisfaction of the Responsible Authority and when approved shall be the endorsed plans of this permit.

The development as shown on the endorsed plans must not be altered or modified without the prior written consent of the Responsible Authority.
Prior to the commencement of the development, the owner of the land must enter into an agreement with the Responsible Authority pursuant to Section 173 of the Planning and Environment Act 1987. The agreement must provide the following:
- Save and except for the approved development, no building on Lots 1A and 2A shall exceed 16 metres in height and shall be designed in accordance with the heritage objective of the Melbourne Planning Scheme and shall be subject to the standard permit requirement of the Scheme.
Prior to the completion or subdivision of the development hereby permitted, easements of light, air and support in favour of Lot 5 burdening Lots 1A and 2A on PS423923Q must be created and registered in accordance with the approved development to the satisfaction of the Responsible Authority.

Such easements must also be created so as to bind any future purchasers of the whole or part of the encumbered lots and be registered on the titles to the lots encumbered and benefiting from the easements to the satisfaction of the Responsible Authority.

A schedule of all external materials and finishes must be submitted to the satisfaction of the Responsible Authority prior to the commencement of any buildings and works on the land. The schedule must show the materials, colours and finishes of all external walls, roofs, fascias, window frames, glazing types and doors.
Prior to the commencement of the development, including demolition or bulk excavation, a detailed construction and demolition management plan must be submitted to and be approved by the Responsible Authority. The Construction Management Plan is to be prepared in accordance with the City of Melbourne - Construction Management Plan Guidelines and is to address matters including the following:

(d) Stormwater and sediment control;

(e) Waste and materials reuse;

(f) Traffic management; and

(g) Site accommodation for workers.

Prior to the commencement of the development plans/details showing treatment to the habitable room windows/openings to limit internal noise to a maximum of 45db(A) in accordance with relevant Australian Standards must be submitted to the satisfaction of the Responsible Authority.
Glazing materials used on all external walls must be of a type that does not reflect more than 15% of visible light when measured at an angle of 90 degrees to the glass surface, to the satisfaction of the Responsible Authority.
No more than one telecommunications receiver/television aerial is to be erected per building without the consent of the Responsible Authority.
Satellite dishes must not be erected without the prior permission of the Responsible Authority.
There must be no air conditioning units, canopies or other permanent structures located on the balconies without the prior written consent of the Responsible Authority.
All service pipes, apart from roof down pipes, must be concealed from the view of a person at ground level within common areas, public thoroughfares and adjoining properties.
No advertising signs shall be erected, painted or displayed on the land without the permission of the Responsible Authority unless in accordance with the exemption provisions of the Melbourne Planning Scheme.
A Waste Management Plan must be prepared specifying details of frequency/method/location of waste collection/storage on/off the site. The storage and collection of refuse is to be to the satisfaction of the Principal Engineer-Services.
All garbage and other waste material must be stored in an area set aside for such purpose to the satisfaction of the Responsible Authority.
No garbage bin or waste materials shall be deposited or stored outside the site or on the common property.
All projections over the street alignment must conform to Building Regulations 2006, Part 5, Sections 505 to 514 as appropriate. Reference may be made to Council's Road Encroachment Guidelines with respect to projections impacting on street trees and clearances from face/back of kerb.
The projections should be drained to a legal point of discharge in accordance with plans and specifications first approved by the Responsible Authority - Manager Engineering Services.
The owner of Lot 5 should construct a drainage system, incorporating water sensitive urban design, within the development and make provision to connect this system to Council's stormwater drainage system in accordance with plans and specifications first approved by the Responsible Authority; Manager - Engineering Services.
The Owner of Lot 5 should construct all necessary vehicle crossings and demolish all unnecessary vehicle crossings adjacent the subject land in accordance with plans and specifications first approved by the Responsible Authority; Manager - Engineering Services.
The Owner of the subject land will not be permitted to alter the existing footpath/road levels in City Road, Clarke Street and Haig Lane for the purpose of constructing new vehicle or pedestrian entrances without first obtaining the written approval of the Responsible Authority; Manager -Engineering Services.
All necessary approvals and permits are to be first obtained from Council and VicRoads and the works performed to the satisfaction of Manager Engineering Services and VicRoads.
Prior to the commencement of the use or buildings and works associated with the use (or the certification or issue of a statement of compliance under the Subdivision Act 1988 the applicant must provide:
- (a) A Certificate of Environmental Audit in accordance with Section 53Y of the Environment Protection Act 1970; or
- (b) A Statement of Environmental Audit under Section 53Z of the Environment Protection Act 1970. A Statement must state that the site is suitable for the use and development allowed by this Permit.
Where a Statement of Environmental Audit is provided, all the conditions of the Statement of Environmental Audit must be complied with to the satisfaction of the Responsible Authority, prior to commencement of use of the site. Written confirmation of compliance must be provided by a suitably qualified environmental professional or other suitable person acceptable to the Responsible Authority. In addition, sign off must be in accordance with any requirements in the Statement conditions regarding verification of works.
If there are conditions on a Statement of Environmental Audit that the Responsible Authority consider require significant ongoing maintenance and/or monitoring, the applicant must enter into a Section 173 Agreement under the Planning and Environment Act 1987. The Agreement must be executed on title prior to the commencement of the use and prior to the issue of a Statement of Compliance under the Subdivision Act 1987. The applicant must meet all costs associated with drafting and execution of the Agreement, including those incurred by the Responsible Authority.
No polluted and/or sediment laden runoff is to be discharged directly or indirectly into Melbourne Water's drains or watercourses.
The ground floor lobby area must be constructed with finished floor levels set no lower than 1.3 metres to Australian Height Datum.
Flood resistant materials must be used for the construction of floor levels and walls below the applicable flood level.
All electrical and plumbing fittings must be to the standards of the Relevant Authority for areas subject to inundation, for all services contained within the ground floor.
Prior to the completion of works, the landowner/s must enter into a Section 173 Agreement with the Responsible Authority and Melbourne Water which is attached to title. The purpose of the agreement shall be to:
- (a) Identify floor levels below flood level;
- (b) Promote the future fit-out of floors below flood level so as to minimise asset damage.
If there are projections over 300mm from the title boundary over Haig Lane and Clarke Street, prior to the commencement of the development, the owner of the land must enter into an agreement with the Responsible Authority pursuant to Section 173 of the Planning and Environment Act, 1987. The agreement must provide the following; -
- (a) Liability and maintenance & those parts of the development projecting into airspace or sub-soil of land under the care and maintenance of Council and disclaiming any right or intention to make or cause to be made at any time any claim or application relating to adverse possession of the land;
- (b) Liability and maintenance of those parts of the development projecting into the air-space or subsoil of land under the care and management of the Council, including provision of an indemnity and comprehensive insurance cover against damage and injury resulting form the erection and use of the projection, to the satisfaction of the Responsible Authority; and
- (c) Providing for the payment to the Council of one lump sum licence fee of such amount as may be reasonably determined by a certified practising valuer appointed by the Council for that purpose.

The owner of the property to be developed must pay all of Council's reasonable legal costs and expenses of this agreement, including preparation, execution and registration on title.

The owner of the land must construct a drainage system incorporating water sensitive urban design within the development and make provision to connect this system to Council's stormwater drainage system in accordance with plans and specifications first approved by the City of Melbourne's Manager - Engineering Services.
Prior to the commencement of the development a Wind Impact Assessment must be carried out by a suitably qualified person to the satisfaction of the Responsible Authority. Any recommendations of the Assessment must be implemented to the satisfaction of the responsible authority.
This permit will expire if one or more of the following circumstances apply:
- The development is not started within two years of the date of this permit;
- The development is not completed within four years of the date of this permit; and/or

The Responsible Authority may extend the periods referred to if a request is made in writing before the permit expires, or within three months afterwards.

[1] Design Guidelines for Higher Density Residential Development (Department of Sustainability and Environment 2004). Pursuant to Clause 19.03-3 of the State Planning Policy Framework this is a document to which Planning and responsible authorities should have regard.

Building Regulations 2006

Environment Act 1987

RN Nominees (Vic) Pty Ltd & Ors v Melbourne CC & Ors [2010] VCAT 1336

At a glance

Court

Decision date

Source

Judgment (49 paragraphs)

RN Nominees (Vic) Pty Ltd & Ors v Melbourne CC & Ors [2010] VCAT 1336 (12 August 2010)

RN Nominees (Vic) Pty Ltd & Ors v Melbourne CC & Ors [2010] VCAT 1336 (12 August 2010)

Parties

Legislation Cited (2)