Mr Alex Gelbe, Town Planner/Solicitor, of HWL Ebsworth

Mr Joseph Matina and Ms Sarah Wright, no appearance

1. At the conclusion of the original hearing of this matter which took place on 27 and 28 April 2017 the Tribunal issued an interim order requiring changes to be made to the plans, having been basically satisfied that the concept of the amended plans was worthy of support, however additional fine tuning was required to address some outstanding issues.
2. This interim order was issued on 15 May 2017 and required the changes to the plans to be made.
3. The amended plans were circulated to all parties and a short subsequent hearing was held on 11 August 2017 to allow the Tribunal and parties to work through the draft permit conditions prepared by the Responsible Authority in response to the amended plans.
4. The majority of conditions as proposed by the Responsible Authority were accepted with minor alteration, however the Tribunal had a number of issues to be addressed, and these related to:
   • (a) More accessible locations for disabled car parking spaces to be provided. The revised plans show all three disabled car spaces located in the basement towards the front of the site. In our view the three car spaces should be more evenly spaced out in the proposal with one at the basement as currently shown, a second towards the centre of the site (at-grade) and the third towards the rear of the site (also at-grade). We will require this as a permit condition.
   • (b) The dimensions of the loading bay adjacent to the café shows a length of 6.4 metres. We view this as inadequate and we will require a length of 7.6 metres, as previously discussed.
   • (c) The revised north-west elevation show a new glazed feature of a glass brick glazing element that has been inserted in this version of the design. We are not convinced that there is any merit in including such an extensive glazed element with no external awning to the dwellings. It is our view that this extent of glazing should be shaded by adjustable external awnings. We also question the extent of glazing shown and the heat load and heat loss in context of regulatory requirements for a NatHERS[1] rating, noting that a building with this orientation could and should achieve much higher than a regulatory minimum of 6-stars through considered passive solar design.
   • (d) We note that there is a surplus of car spaces provided and as previously directed require that all two bedroom plus study dwellings be counted as three bedroom dwellings for the purposes of on-site car park provision.
   • (e) As previously requested we note that details of the façade 'blades' have not been provided. In our view façade 'blades' can lead to good and bad outcomes in terms of internal amenity (daylight and visual amenity). We will require that size and spacing be to the satisfaction of the responsible authority and that the design of these 'blades' do not limit daylight ingress or unduly limit solar access in the cooler months and also provide shading in the summer months.
5. The Tribunal further required provision of underground water tanks to provide an irrigated watering system to common property planting areas, including the roof garden and details regarding the planters proposed above the basement in the forecourt of the major building element of the project.
6. We note that in general the design response is a positive improvement on the previous version and that the architects have sought to address issues raised by the Tribunal in a considered manner. We will require the retention of Mills Gorman architects for the duration of the project to ensure that a continued stewardship over the design is maintained throughout construction and to the final built outcome.
7. During the hearing (on the 11 August 2017), the Tribunal heard from the adjacent golf club who want a cap on the number of apartments and limited access to the golf club car park. Mr Cicero submitted that the Tribunal is moving away from specifying numbers of dwellings in decisions. We agree with Mr Cicero in this instance and also do not believe it is the role of the Tribunal to direct or limit parking on land other than the review site.
8. The revised design shows patron numbers anticipated for the café and restaurant and the Tribunal finds these to be acceptable and commensurate with the size of space allocation shown.

A three storey building (plus roof top garden) comprising dwellings, two ground floor retail tenancies, in a Commercial 1 Zone.

1. Before the development starts amended plans to the satisfaction of the Responsible Authority must be submitted to and be approved by the Responsible Authority. When approved the plans will be endorsed and will then form part of the planning permit. The plans must be generally in accordance with the plans substituted for the Application Plans by VCAT order dated 22 June 2017 and prepared by Mills Gorman Architects described as SK 02, SK 02 .1, SK 03, SK 04, SK 05, SK 05 1, SK 05 2, SK I 5.3, SK 05 4, SK 05 5, SK 06, SK 07, SK 08, SK 09, SK 10 and SK 11 (Revision E), and plan showing materials and finishes dated 25 May 2017, but modified to show:
   • (a) all details recommended by the Acoustic Assessment prepared in accordance with this permit;
   • (b) in plans scalable at 1:50, all dimensions and details of the road works (and the ancillary works) external to the subject land within Greg Norman Drive necessary to achieve vehicle access and egress to the loading bay and basement along the north/north eastern edge of the subject land (including relocation of the pedestrian/golf buggy crossing);
   • (c) relocate two of the three designated disabled car spaces from their current location and locate one close to the restaurant/cafe and one near the centre of the angle parking at the at-grade car parking spaces in front of the development;
   • (d) the loading bay adjacent to the cafe is to be shown to have a length of 7.6 metres;
   • (e) show the provision of water tanks of suitable capacity to provide a watering system to the common area planting;
   • (f) relocate the lift to the cafe to the south or east side of the building
   • (g) details and location of all signage and lighting,
   • (h) provide details of the size, spacing and materiality of the proposed façade 'blades' and ensure daylight, visual amenity and solar access is not compromised to all dwellings affected.

all to the satisfaction of the Responsible Authority.

1. The layout and size of the development shown on the endorsed plan(s) and/or documents must not be altered or modified (for any reason) without the prior written consent of the Responsible Authority.

1. Before the development starts, a landscaping plan generally in accordance with the plan by John Patrick Landscape Architects dated 23 June 2017 and drawn to the scale of 1:100 must be submitted and approved by the Responsible Authority. When approved the landscaping plan will be endorsed and will then form part of this permit. The landscaping must be prepared by a suitably qualified person and must show the following:
   • (a) Clear graphics to indicate delineation of trees as either deciduous or evergreen in addition to shrubs, ground covers, grass, climbing plants;
   • (b) Botanical and common name, pot size, quantity, planting density and size at maturity of all plantings;
   • (c) Location of all surface treatments with materials and colours notated (not specified 'to later detail');
   • (d) Appropriate use of indigenous plants;
   • (e) Plant selection for the roof garden which does not increase the visual bulk impact of the development;
   • (f) The protection of all built and paved areas with appropriate tree root/moisture barriers to ensure the integrity of the foundations are not compromised;
   • (g) Location, materials, dimensions, full details including section diagrams of all built features including retaining walls for any areas of cut and fill, raised planters, public seating, outdoor dining areas, fences and privacy screening elements, outdoor shade covers, storage and utility structures etc; and
   • (h) Notes of site preparation, irrigation, maintenance and plant replacement regime beyond the 'plant establishment period',
   • (i) provide details of the vegetation planters above the basement in the forecourt of the major building element of the project

all to the satisfaction of the Responsible Authority.

Retention of Architect

1. Mills Gorman Architects are to be retained for the duration of the project from planning to end of construction. If any other building design consultant is cited on the drawings, their services must be described in line with statutory limitations (e.g. of the Architects Act 1991).

1. The landscape area(s) shown on the endorsed plan(s) must be planted and maintained in accordance with the endorsed landscaping plan to the satisfaction of the Responsible Authority. Once landscaped, garden areas and planter beds must not be used for any other purpose except with the prior written consent of the Responsible Authority.

1. The exterior treatment of the building(s) permitted by this permit including all exterior decoration, materials, finishes and colours must be in accordance with the endorsed plans to the satisfaction of the Responsible Authority. The exterior treatment of the building(s) must be maintained to the satisfaction of the Responsible Authority.

1. Any air conditioning or cooling units, condensers and the like must not be located on external walls or on balconies without the prior written consent of the Responsible Authority.
2. Any equipment required for refrigeration, air-conditioning, solar panels or heating must be constructed and located on the subject land in accordance with the endorsed plans and must be suitably baffled or insulated for the purpose of reducing noise emissions, to the satisfaction of the Responsible Authority.
3. Mechanical ventilation systems, refrigeration motors, air conditioning units or all other equipment must not cause a nuisance under the provisions of the Public Health and Wellbeing Act 2008.

1. All pipes (except down pipes), fixtures, fittings and vents servicing any building on the site must be concealed in service ducts or otherwise hidden from external view to the satisfaction of the Responsible Authority.

1. No plant, equipment, services or architectural features other than those shown on the endorsed plan are permitted above the roof level of the buildings without the prior written consent of the Responsible Authority.

Seating Numbers

1. Except with the consent of the Responsible Authority the restaurant shall comprise not more than 150 seats, (whether internal or external) and the cafe shall comprise not more than 60 seats (whether internal or external).

1. Before the development starts, a construction management plan 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 and must be implemented to the satisfaction of the Responsible Authority. The plan must provide details of the following:
   • (a) Hours for construction activity;
   • (b) Measures to control noise, dust, water and sediment laden runoff;
   • (c) The location and design of a vehicle wash-down bay for construction vehicles on the site;
   • (d) The path for all construction vehicles and the location of parking areas for construction and sub-contractors' vehicles on the site, to ensure that vehicles associated with construction activity cause minimum disruption to surrounding residents and traffic flows;
   • (e) Measures to ensure that sub-contractors/tradespersons operating on the site are aware of the contents of the construction management plan;
   • (f) Contact details of key construction site staff;
   • (g) The location of any site sheds and the like. All site sheds (or similar structures) in association with the development must be located within the property confines;
   • (h) Specifications of all trucks and truck movements to ensure that trucks and other vehicles associated with construction activity cause minimum disruption to surrounding premises and traffic flows in surrounding residential streets;
   • (i) Measures to protect the high pressure oil pipeline located on the subject site; and
   • (j) Any other relevant matters;

all to the satisfaction of the Responsible Authority.

1. All activities associated with the construction of the development permitted by this permit must be carried out to the satisfaction of the Responsible Authority and all care must be taken to minimise the effect of such activities on the amenity of the locality. All noise associated with the construction of the development must comply with EPA's Environmental Protection (Residential Noise) Regulations 1997 No. 120 and State Environment Protection Policy (Control of Noise from Commerce, Industry and Trade) No. N-1.
2. Measures must be taken to suppress dust, noise or other emissions during construction to prevent nuisance to surrounding neighbours to the satisfaction of the Responsible Authority.
3. Construction and/or demolition works must comply with the requirements specified in the Environment Protection Authority's, Noise Control Guidelines Publication 1254, October 2008.

1. Before the development starts, a qualified acoustic engineer must be engaged to conduct a detailed assessment of the proposal and a written report must be submitted to the Responsible Authority for approval.
2. The acoustic engineer must assess the impact of existing trade and commercial activities in the area and those hereby approved (including but not limited to noise from the retail and commercial outlets, car parking facilities, outdoor smoking areas, entranced, any amplified or 'live' music venues, deliveries and waste collections) and determine what impact these facilities may have on the occupants of the accommodation hereby approved. The report must detail what improvements can be made to the proposed development to reduce the impact of noise on the occupants (eg. Double glazed windows etc).
3. Once approved, the report will form part of the permit and all recommendations in the report must be fully implemented to the satisfaction of the Responsible Authority.

1. No emissions from the subject land (noise, light, odour, dust etc) must cause a nuisance to surrounding properties in line with the Public Health and Wellbeing Act 2008, Environment Protection Act 1970 or any other legislation.

1. Before the development starts, a Waste Management Plan specific for the development must be submitted to and approved by the Responsible Authority. Such a plan will include the following information:
   • (a) Details of separation of resources to encourage waste minimisation in accordance with the State Government's Zero Waste Strategy;
   • (b) Waste collection times are to be restricted to: 7.00am - 8.00pm Monday to Saturday and 9.00am - 8.00pm Sunday and Public Holidays;
   • (c) Collection points within the development;
   • (d) Use of labour and mechanical equipment to satisfy OH& S requirements relating to waste collection;
   • (e) An external area for storage or garbage and recyclable matter and for cleaning of rubbish bins is to be provided. This area must be adequately sized to contain the volume of waste generated, capable of preventing pest and animal access and designed so that it can be easily and effectively cleaned; and
   • (f) Method and frequency of collection.
2. The Waste Management Plan must be implemented to the satisfaction of the Responsible Authority.

1. Before the development starts, a Delivery Management Plan specific for the permitted uses must be submitted to and approved by the Responsible Authority. The plan must include (but is not limited to) the following information:
   • (a) Measures to ensure that loading and unloading of vehicles and deliveries associated with the development are conducted so as not to cause any unreasonable disturbance to local roads and nearby residential properties;
   • (b) Delivery vehicles associated with the development must be no larger than Medium Rigid Vehicles 8.8m in length, to the satisfaction of the Responsible Authority;
   • (c) Loading and unloading of vehicles associated with the development must only occur within the loading area on the land, to the satisfaction of the Responsible Authority;
   • (d) The loading area on the land must not be used for any other purpose other than the loading and unloading of goods (including goods to residential apartments);
   • (e) Deliveries by Medium Rigid Vehicles between the following hours:
     • (i) Monday to Friday before 8:00 am, and 10:00 am to 4:00pm; and
     • (ii) Saturday, Sunday or Public Holidays 9:00 am to 10:30 am;
   • (f) Delivery vehicle drivers associated with the development must shut off the engine of their vehicle while loading and unloading is being undertaken, to the satisfaction of the Responsible Authority;
   • (g) Measures to ensure that delivery vehicles are not illegally parking or storing or idling elsewhere on nearby roads while waiting for an occupied loading dock to become vacant or waiting for the hours for deliveries and loading/unloading allowed by the Permit to commence; and
   • (h) A gate capable of enclosing the loading dock to be installed and to be secured outside of delivery hours specified in the Delivery Management Plan.
2. The Delivery Management Plan must be implemented to the satisfaction of the Responsible Authority

1. Goods, equipment or machinery or any other structure must not be erected or stored or left exposed outside a building, including walkways, car parking and landscape areas so as to be visible from any public road or thoroughfare.

1. No mud, crushed rock or other debris is to be permitted to be carried onto public roads or footpaths from the subject land. Appropriate measures must be in place at all times during construction to prevent this occurrence to the satisfaction of the Responsible Authority.

1. Before the development starts, a Parking Management Plan must be submitted to and be approved by the Responsible Authority. The Parking Management Plan must address:
   • (a) Resident loading;
   • (b) Parking restrictions and proposed enforcement of restrictions;
   • (c) Allocation of car spaces in accordance with the allocation schedule shown on the endorsed plans;
   • (d) The restriction and control of access to the residential basement level;
   • (e) Management of parking for all uses; and
   • (f) Lighting and signage,

all to the satisfaction of the Responsible Authority.

1. The Parking Management Plan must be implemented to the satisfaction of the Responsible Authority.
2. Areas set aside for the parking of vehicles together with the aisles and driveways must be properly formed to such levels as shown on the endorsed plans and sealed with an impervious all-weather seal coat. The areas must be constructed, drained and maintained in a continuously useable condition to the satisfaction of the Responsible Authority.
3. The boundaries of all car spaces, access and egress lanes and the direction in which vehicles should proceed along the lanes must at all times be clearly indicated on the ground to the satisfaction of the Responsible Authority.

1. Areas set aside for the parking and movement of vehicles as shown on the endorsed plan(s) must be maintained in a usable and safe condition to the satisfaction of the Responsible Authority and made available for such use and must not be used for any other purpose.

1. Before the permitted uses commence operation or occupation, all vehicular access to the subject land from any roadway and all modifications to all areas used by pedestrians both on the land and adjacent to the land must be fully constructed and installed in accordance with the endorsed plans to the satisfaction of the Responsible Authority.
2. The location, design and construction of the vehicle crossing(s) and pedestrian pathways must be approved by the Responsible Authority and all costs of construction will be met by the permit holder.
3. Any existing unused crossing(s) must be removed and replaced with concrete kerb and channel and any services or infrastructure, including street trees and pedestrian crossings, that require relocation or modification as a necessary consequence of the location of new or altered crossover/s in order to achieve public safety, convenience or amenity must be relocated or modified at the permit holder's full cost and to the design, specification and materials to the satisfaction of the Responsible Authority.

1. A concrete kerb of a minimum height of 150mm or such other form of barrier as approved by the Responsible Authority must be constructed where necessary to prevent vehicles from causing damage to garden areas, walls, fences or any other property, to prevent vehicular access/egress (other than driveway access) and to prevent vehicles projecting beyond the boundaries of the subject land.

1. The surface of the car parking area(s) together with access and egress lanes must be treated to the satisfaction of the Responsible Authority so as to prevent loss of amenity to the neighbourhood by the emission of dust or the discharge of drainage.

1. The whole of the subject land, including landscaped and paved areas, must be drained to the legal point of discharge to the satisfaction of the Responsible Authority.
2. The development must incorporate underground drainage to cater for 1 in 10 year return, and connect into the stormwater drainage system.
3. Before the development starts, unless with the prior written consent of the Responsible Authority, rainwater off the roof must be collected and stored in a rainwater tank (minimum 10000 litres). A minimum 80% of the roof surface must be connected to a rainwater tank. The rainwater tank must be plumbed for toilet flushing and for use within the public/commercial spaces.
4. The installation of rainwater tank must comply with the National Plumbing and Drainage Code AS/NZS 3500 and HB230-2008 - Rainwater Tank Design & Installation Handbook by Standards Australia.
5. The stormwater runoff generated from the whole of the subject land, including landscaped and paved areas, must not adversely flood adjoining lots.
6. If new or additional drainage discharge points are required for the subject land, a separate legal point of discharge permit must be obtained from the responsible authority.

1. Wastewater generated onsite must be directed to a legal point of discharge.
2. Waste water must not be directly or indirectly permitted to enter the stormwater system.
3. The premises must be designed to ensure that there is no light spilling into residential properties.

1. The development permitted by this permit must not be occupied until:
   • (a) the streetscape works and parking area(s) shown on the endorsed plan(s) have been constructed to the requirements and satisfaction of the Responsible Authority; and
   • (b) the garden and landscape area(s) shown on the endorsed plan(s) have been planted to the requirements and satisfaction of the Responsible Authority.

1. Any walls / spaces accessible to the public must be treated in accordance with Safer Design and CPTED (Crime Prevention through Environmental Design) Principles. Where appropriate the following measures must be implemented to the satisfaction of the Responsible Authority:
   • (a) Use of textured or rough services that make it difficult to apply graffiti.
   • (b) Use of permeable fencing instead of solid walls.
   • (c) Construct buildings with high-density, low absorbency materials.
   • (d) Use anti-graffiti coating to protect the surface when building or revitalising the walls (including façade).
   • (e) Install sensor lighting and / or enhance surveillance to deter graffitists.
   • (f) Break up large surfaces to minimise the canvas available for graffitists.
   • (g) Use measures to make the surface less accessible to the public.
2. The permit holder/occupier must promptly remove any graffiti on the subject land which is visible to the public and keep the site free from graffiti at all times to the satisfaction of the Responsible Authority.

1. All clotheslines must be positioned so as not to be visible from any nearby street to the satisfaction of the Responsible Authority.

This permit will expire if one of the following circumstances applies:

(a) The development is not started within three (3) years of the date of this permit;

(b) The development is not completed within five (5) years of the date of this permit.

The Responsible Authority may extend the periods referred to if a request is made in writing whereby either of the following instances apply:

(c) before or within six (6) months after the permit expiry date, where the use or development allowed by the permit has not yet started; or

(d) within twelve (12) months after the permit expiry date, where the proposal allowed by the permit has lawfully started before the permit expires.

[1] Nationwide House Energy Ratings Scheme