40 Upper Heidelberg Road is a gateway site that suggests a sense of arrival into the activity area. This site provides the opportunity for a high quality, architecturally designed landmark building.

1. As further guidance, DDO11 places a mandatory 19 metre height limit over the review site. That this building will be seen from a broad area confirms the achievement of policies that seek a built form that acts as a landmark and gateway. Ms Crone and other residents submit that the review site is located on a ridgeline, and that the Banyule Planning Scheme seeks to protect ridgelines from tall buildings that will be viewed from broad parts of the municipality. Instead they argue that many of the ridgelines within the municipality are covered by planning controls that seek to protect and retain the existing vegetated landscape. While the objective described by Ms Crone may be a typical strategic approach applied by this municipality and planning scheme to a number of ridgelines within the municipality, there are no policies or provisions within the planning scheme that encourage such an approach on this part of this ridgeline. Indeed, the policies and provisions that do exist encourage the achievement of a tall building that will, as a natural consequence of its height and position, be visible from a broad area of the municipality, and thus mark the commencement of the Ivanhoe Activity Centre.
2. We accept that landmarks and gateways can be marked by means other than a tall building. However it is the clear intent of the Banyule Planning Scheme that a building of up to 19 metres in height is to be one means by which this gateway site will be identified. Further, having regard to the weight of other planning objectives that encourage to a high level the achievement of urban consolidation including additional housing in this well serviced location, we consider there to be significant support from the Banyule Planning Scheme for a tall building to be developed on the review site.
3. Finally, we note that the proposed building on the review site will be comparable in height to the emerging character of buildings in this part of the Ivanhoe Activity Centre. In particular, we refer to the recent approval of a six storey building opposite the review site at 19-31 Upper Heidelberg Road, in the decision of Pure Projects Pty Ltd v Banyule CC [2017] VCAT 1290. The plans provided to us by the parties in this proceeding demonstrate that the proposed development on the review site will be approximately 2.5 metres shorter than the approved development at 19-31 Upper Heidelberg Road. We also consider that the proposed building will be comparable in height to others already existing and approved in this part of the activity centre, including that existing at 72-84 Upper Heidelberg Road, and that approved at the Valia development at 59 Upper Heidelberg Road. For a 'landmark' building, the extent to which this proposed development will be similar in height to a number of nearby existing and approved buildings, only reinforces that the proposal will not present an unreasonable height and scale to this location.
4. For these reasons we find it appropriate to support the proposed height and scale of the building now contemplated for the review site.

1. The residents also submit that the intent within DDO11 for a rear vegetated setback should be a required response in order to soften the built form on views from the surrounding residential interface to the east. In difference, the proposal that is before us does not provide a setback along most of the interface to the railway reserve, and instead relies on a series of planter boxes with a variety of landscaping approaches to provide a vegetated appearance to parts of the building. DDO11 starts with the following guidance regarding setbacks.

Buildings should be setback from property boundaries no less than the preferred minimum setback distances specified in Table 6 to this Schedule.

1. Table 6 contains a variety of setback requirements, of which Setback D applies to both the eastern and western boundaries of the review site. The provisions of Setback D are set out below:

• Buildings should be setback:
  • 3 metres from the property boundary; or
  • 4 metres from the property boundary to preserve an existing landscaped area.
• Any part of a building higher than 7.5 metres above natural ground level in a residential zone or higher than 9.0 metres above natural ground level in a non residential zone should be setback:
  • 3 metres behind the ground floor facade; or
  • 5 metres behind the ground floor facade where the property boundary abuts a Rail Reserve.
• The ground level setback area should be designed to protect existing trees (where relevant) and provide for additional landscaping.
• Any tree protection zone should be consistent with Australian Standards to protect existing vegetation in this location.

1. In addition, the following words are provided for the review site.

Reduced building setbacks may be considered for 40 Upper Heidelberg Road if design can achieve:

• A high quality, architecturally designed outcome that incorporates the planting of trees.
• Landscape character to Upper Heidelberg Road that contributes to a sense of 'boulevard' and reflects the treed settings of those properties opposite the subject site.
• Reduction in visual bulk of the building when viewed across the railway line and from Lower Heidelberg Road.
• A modulated façade to Upper Heidelberg Road that provides interest and relief from visual bulk on lower levels.
• Design excellence reflected in the design of safe entrances to residential and commercial properties directly from Upper Heidelberg Road.

1. It is clear from this guidance that as a starting proposition the 3.0 metre setbacks from both the rear and Upper Heidelberg Road are discretionary, and adding to that discretion is a clear invite from DDO11 that reduced setbacks may be considered for the review site. Such reduced setbacks are invited so long as five design outcomes can be achieved, two of which are relevant to our assessment here of the setback to the rear or eastern boundary. The first such consideration relates to whether a high quality architecturally designed outcome has been achieved that incorporates the planting of trees. It is evident that the planting of trees has been incorporated into the design, with nine trees proposed to be planted along the northern part of the setback area from the eastern boundary of the review site.
2. We accept that the proposed building that is before us is a high quality architecturally designed building consistent with the policy intent for a building on the review site to be something more than reasonable and appropriate. We are persuaded by the evidence of Mr Holdsworth, Mr Poole and Mr Sheppard who all agree that this proposed building is something out of the ordinary, that uses a range of high-quality materials, that these materials are used to differentiate the different building forms, and a high level of articulation is provided in a skilled arrangement to design a building which will provide a high quality of architectural design standard to its public interfaces to the west, south and east. For these reasons we are not persuaded by the submissions of Ms Roberts who describes the building as mundane and ordinary.
3. The second design outcome sought in order to support reduced setbacks from the eastern boundary is a:
   • Reduction in visual bulk of the building when viewed across the railway line and from Lower Heidelberg Road.
4. We have been persuaded that an appropriate set of design approaches have been implemented in this building that will successfully reduce the extent of visual bulk when viewed from locations to the east. These design approaches include the provision of a significant break in the building opposite the foyer entry from Upper Heidelberg Road, the stepping back of the built form with the slope of the land in the northern part of the review site, the incorporation of varying and interesting landscape techniques in the eastern facade, and the adoption of three different facade presentations along the eastern elevation. While these techniques will not reduce the size of the silhouette presented by the building on this prominent location, they assist in reducing the impact of visual bulk when this building is viewed from a range of vantage points.
5. We note that the review site has the advantage of being separated from the nearest residential property to the east by the railway reserve at the rear of the review site, which has a width of around 29 metres. At such a separation distance, we find that the range of design techniques which we have already described will ensure that an unreasonable level of visual bulk will not occur, when the proposed building is viewed from these residential properties to the east of the railway reserve. We make this finding having regard to the context where the nearest residential properties also exist within the boundaries of the Ivanhoe Activity Centre, and as such must expect to experience views to higher built form.
6. While addressing the topic of visual bulk, we might as well complete our analysis on this subject. We note that residential properties also exist on the opposite side of Upper Heidelberg Road from the review site. These properties are separated from the review site by the width of Upper Heidelberg Road, and also have a dense planting of vegetation along their respective front boundaries. Having regard to the relationship between the review site and these residential properties, we find that the proposed development will also not present an unreasonable level of visual bulk to this interface.

1. We now come to the particular criticisms raised by both Mr Holdsworth and Council, many of which are shared by the Respondents in this proceeding. The first is the setback provided to Upper Heidelberg Road. We have already explored above the guidance provided by DDO11 in relation to setbacks, and how varied setbacks are invited for the review site, in addition to being discretionary across the activity centre. The proposed development seeks to present a range of setbacks to Upper Heidelberg Road, which has the effect of increasing the level of articulation and architectural quality to the overall building.
2. Broadly, the setbacks include a minimum 2.97 metre setback to all levels at the northern end of the site's frontage, a presentation to the front boundary, that is with a zero setback, in the middle of the site, and a curved building presentation with a variety of setbacks in the southern third of the site's frontage. The setbacks at the northern end of the site vary at each level, gradually peeling back from the street in a curved façade, increasing to a setback of 4.33 metres at the fourth floor (level 5). The upper most level has a range of more generous setbacks, while also having some elements with almost no front setback.
3. Drawing upon DDO11 for guidance, the intent of the setbacks sought for the review site is to achieve a landscape character along Upper Heidelberg Road that will contribute to a sense of boulevard at the southern entrance to the Ivanhoe Activity Centre. At the same time, reduced setbacks are permitted in order to achieve a modulated facade that provides interest and articulation, and safe entries both to residential and commercial uses.
4. We are not persuaded by the submissions of various Respondents that the intent of the required setbacks are to achieve a built form and landscape outcome that reflects the Ivanhoe Town Hall, an iconic building at the opposite end of this activity centre. Firstly, we observe that the provisions of DDO11, supported by planning policy, do not draw any direct link between the two sites. Secondly, the Town Hall exists on a significantly larger allotment, with a deep setback not achievable on the review site, and with the benefit of important heritage attributes. For these reasons we do not consider that we are assisted by a comparison between the review site and the Ivanhoe Town Hall.
5. Mr Vorchheimer submits that we should have regard to the reasons for the setback set out in the Panel Report for Amendment C93 to the Banyule Planning Scheme. From that Panel Report we note the following:

The Panel concludes that it is appropriate for the exhibited setback standard along the frontage of the main road be retained. Notwithstanding an architecturally excellent design proposed for any future building, the Panel believes there is adequate justification to set back the building 3m from the front boundary in accordance with the setback standard, to reflect the planting that has taken place along the frontages of the two buildings to the north. We note that with Setback 2 there will be no ability to comply with the requirement to achieve a landscape character in the main road that would contribute to a sense of 'boulevard' and reflect the treed settings of those properties opposite the site. In the circumstances, the Panel supports retention of Setback 4 as the site is located at a gateway to Ivanhoe, and the hard wall street character of the town centre should not be extended further southward.[16]

1. We are not persuaded that the findings of the Panel quoted above are of assistance to our decision making task, for the following reasons. Firstly the Panel considers that the 3.0 metre setback is justified on the review site in order to reflect the planting that has occurred on the two properties to the north. It is our observation that these plantings are very modest, in the case of the property at 50 Upper Heidelberg Road consisting of little more than narrow trimmed hedges, and with 42 Upper Heidelberg Road, two tall and spindly birch trees. We do not consider the landscape outcome that has occurred on these two properties to the north to reflect the boulevard style planting now sought for the review site, a position that reflects the views of the parties and various experts in this proceeding.
2. Secondly, the Panel considers that the hard street wall character of the town centre should not be extended to the review site. However, this is not provided as an objective or matter to be considered in DDO11. Indeed, the expressed desire to avoid a hard street wall character runs contrary to other parts of DDO11 that seek continuous weather protection over the footpath and building entrances that abut the footpath environment, matters which the Council took the Tribunal to in this proceeding. For these reasons, in our analysis that follows we will be guided by the content of the Banyule Planning Scheme, rather than the comments contained in the Amendment C93 Panel Report.
3. We concur with some of the observations made by various experts in this proceeding. Firstly, we agree that the application of a strict 3.0 metre setback from the entire frontage to Upper Heidelberg Road to the review site will have a significant impact on the ability of the review site to contribute to the additional housing that is so clearly encouraged in this well serviced location. That is particularly the case on this site, as compared to others within this activity centre, due to the long narrow triangular shape of the review site. The intention of planning controls and policies within the Banyule Planning Scheme is to encourage the review site be developed with a landmark building. We consider it appropriate to allow a variation to the setbacks from Upper Heidelberg Road in order to facilitate the development of a landmark building, an outcome which we consider to be recognised by the provisions set out in DDO11.
4. Secondly, we agree that the application of a strict 3.0 metre setback from Upper Heidelberg Road will likely lead to a reduction in the extent of variation of setbacks and level of articulation in the western facade of the proposed building. One of the key strengths of the current design response that is before us is the variety of setbacks that are provided along the wide elevation that presents to Upper Heidelberg Road. These setbacks add to the extent of articulation in the built form, the design and architectural excellence, and the overall achievement of a landmark building for this gateway site. For these reasons we support a variety of setbacks to Upper Heidelberg Road, noting the intention in DDO11 that setbacks of up to 3.0 metres be provided.
5. Thirdly, we consider that the provision of a consistent and wide setback behind a vegetated presentation, which is the outcome sought by some parties in this proceeding, to be potentially inconsistent with the clear intent for the provision of safe entrances to the residential and commercial properties on the review site. Safer design principles demand that entrances to buildings in an activity centre be positioned as close to the street frontage as possible, and be unobstructed in views by vegetation and other potential obstructions. We read the intent of DDO11 for reduced setbacks to provide for safe entrances to support the type of design response that is now before us.
6. Fourthly, we appreciate that a true boulevard cannot be achieved through any form of development on the review site. A boulevard is a public thoroughfare that extends for some distance, and which contains a consistency of built form, public realm treatment and landscape presentation across its entire length. The Ivanhoe Landscape Plan that forms part of policy at Clause 21.08-3 of the Banyule Planning Scheme confirms that a boulevard is sought to be achieved along parts of other streets within this activity centre, including Norman Street and Lower Heidelberg Road, but not along any part of Upper Heidelberg Road. Instead, Upper Heidelberg Road is to take on a main street landscape character.
7. The provisions of the Banyule Planning Scheme through DDO11 seek to create a sense of a boulevard only in front of the review site, and not in front of any other property. We are a little confused as to how this sense of a boulevard can be achieved through the treatment to a single property, but understand from the provisions of DDO11 that it has much to do with the desired landscape outcomes. To this end, we consider that our objective as a decision maker must be to achieve a rate of setbacks on the review site that will provide an appropriate landscape outcome.
8. It is the evidence of Mr Vernon and Mr Patrick that the range of setbacks proposed for the review site will be sufficient to allow for the planting of a variety of canopy trees within the road reserve along Upper Heidelberg Road. In contrast, it is the Council's submission that the intent of the planning controls is to require planting to occur within the review site itself. We do not consider that the provisions of DDO11, supported by policy at a local level, are particularly clear as to where the planting is to occur. We appreciate the Council's submission that the provisions of DDO11 encourage planting to reflect the treed settings of the properties on the opposite side of the road. Those properties currently have vegetation within a deep setback from the front boundary, and the approved development for land at 19-33 Upper Heidelberg Road proposes to continue to present a sizeable and landscaped front setback.
9. When reading the provisions of DDO11 as a whole, we did not consider it a fair interpretation that the review site is expected to repeat the treed settings and siting as occurs on the opposite side of Upper Heidelberg Road. The setback provisions that apply under DDO11 do not require an equivalent setback to be provided on the review site as a starting point, and the provisions of DDO11 provide specific opportunity for the setbacks on the review site to be further reduced. As such, the Council's argument for the siting of trees on the review site to reflect that which has and will occur on the opposite side of the road, is not supported by the range of setbacks that are sought on the review site under the provisions of DDO11.
10. In the absence of any clear direction from the Banyule Planning Scheme, we adopt the evidence of various experts in this proceeding who opine that a preferred outcome will result in trees planted within the road reserve, for two reasons. Firstly, so as to provide a physical barrier between through traffic and pedestrians using the footpath. We consider that is a preferable outcome, rather than to 'push' the footpath to the edge of kerb and create a landscape barrier between pedestrians and the active frontage to the building. And secondly, to provide added space for the tree canopies to grow into. We consider that the road environment can provide a superior space for the achievement of sizeable canopies, as currently occurs in many of Melbourne's valued leafy suburbs. In comparison, we are opposed to the potential to repeat the outcome found on the adjoining property to the north of the review site, where tree planting within the boundary of the property itself has seen trees grow in an angled and lop-sided manner.
11. We also consider that the planting of trees within the road reserve is supported by the following policy that specifically applies to the Ivanhoe Activity Centre, and which could well have been written with the review site in mind:

Undertake further street tree plantings to provide a framed boulevard character in the major roads leading into the Activity Centre to provide a gateway effect.

1. The landscape plan prepared by Mr Vernon depicts the planting of Kanookas (Tristaniopsis laurina) as street trees. We are persuaded by the evidence of Mr Patrick that these trees are relatively small, and are not sufficiently sized in order to achieve the sense of a boulevard that is sought in front of the review site. We also persuaded that a sense of a boulevard would more appropriately be achieved by a consistency of planting on both sides of Upper Heidelberg Road. We are advised that the landscape plan approved for the development of land at 19-33 Upper Heidelberg Road incorporates the planting of Spotted Gum trees within its front setback. We consider it appropriate that the planting of these trees be continued in the road reserve in front of the review site. We note that in response to our questions Mr Patrick considers that the setbacks on the review site will provide for the planting of these larger trees. However we consider it prudent to draft the condition in a way that Council will have the final say on the species of the proposed street trees, particularly in the event that there is a change of species of proposed trees at 19-31 Upper Heidelberg Road.
2. For these reasons, we are persuaded that the range of setbacks from Upper Heidelberg Road proposed in the review site are sufficient to provide for the landscaping outcome that is sought through the provisions of DDO11.
3. We will however, require one modification to be made to the proposed setbacks to Upper Heidelberg Road. That is in response to the following guidance in relation to the desired built form and character outcome for the review site:

Any design should incorporate the planting of trees along the Upper Heidelberg Road elevation to contribute to a sense of arrival into a boulevard ...

1. Having regard to this guidance, we consider that the treatment of the southern end of the review site is paramount in order to achieve the desired condition to contribute to a sense of arrival into this activity centre. Further, in our view the southern part of the proposed facade to Upper Heidelberg Road has a reduced level of articulation, as it comprises a single built form element at the same street setback from the bottom to the top of the building. This southern part of the building is of residential use only, whereby the engagement between this use and the public realm should be "buffered". It is also the part of the review site that should most 'give', with no car parking structure below, which would allow for deep rooted trees, which would both add to and compliment the proposed street trees to flourish and achieve a more dense landscape character outcome in this location.
2. For these reasons, we find that southern part of the facade that presents to Upper Heidelberg Road, that is the part of the building located to the south of the commercial tenancies and Apartments 1.17, 2.17, 3.17, 4.15 and 5.05, should be setback a minimum of 2.0 metres from Upper Heidelberg Road. In that part of the building the proposed setbacks are not presently dimensioned, but are represented by a curved element with a variety of setbacks. We consider it appropriate that the curved element remains, but with a minimum setback of 2.0 metres from the point that the curved element steps closest to the front boundary to Upper Heidelberg Road. In addition, we believe that the apex of the triangle to the proposed built form, should be set back a minimum of 10 metres from the southern most point of the property. This will provide the opportunity for a deep rooted canopy tree, to provided a vegetated outlook from the south, and a significant landscaped statement upon entry to the activity centre.
3. Subject to this one change, for the reasons set out above we find that the range of setbacks proposed to Upper Heidelberg Road will achieve the various outcomes sought in policy and by DDO11.

1. Mr Holdsworth also opines that the proposed building on the review site should provide setbacks at the upper levels from the northern boundary of the review site. We prefer the evidence of Mr Sheppard, who has considered the impacts of the proposed setbacks on the future equitable development of the adjoining property to the north. Having regard to this evidence, we are persuaded that the provision of reduced setbacks to the upper levels, and in fact building on or close to the northern boundary of the review site, will actually provide a more equitable redevelopment potential and be of more benefit to the adjoining property.
2. We also observe from the photomontages provided that in the interim period, while the adjoining property to the north has been built as a low profile building, that the proposed development on the review site will not present an undesirable northern elevation on angled views from Upper Heidelberg Road. To this end we note that the extent of proposed northern boundary walling is broken up into two components with a reasonably large void between the two. The rear component is unlikely to be visible from most locations along Upper Heidelberg Road. The front component of the boundary walling has a staggered arrangement, and extends to a height of five storeys. The bottom two to three storeys of this wall will be concealed from street view by the existing building to the north, with the remaining upper three levels to this boundary wall appearing as a more modest element that steps back slightly at the upper level and overall presents as a highly articulated building. We are satisfied that such an outcome will achieve an appropriate urban design and built form response for the review site, and an appropriate response to the guidance provided by DDO11.

1. The final concern raised by Mr Holdsworth relates to the floor to ceiling heights for the ground floor commercial tenancies. DDO11 addresses this matter in the following terms.

Floor to ceiling heights should support the flexible use of interior spaces and achieve a consistency of vertical scale between the floor levels of abutting buildings. Heights should generally be no less than:

• 3.8 metres for retail and commercial uses;
• 3.0 metres for residential uses.

1. As depicted in plans tabled at the commencement of the hearing, the proposal that is before us seeks to provide 3.0 metre internal ceiling heights across most of the space to be occupied by the cafe and commercial tenancy. We are persuaded that the floor-to-ceiling heights that are proposed are appropriate for the following reasons:

1. The review site is in an edge of activity centre location and as such the commercial floorspace proposed for the review site is unlikely to ever provide for a core retail function such as a small supermarket; 2. The two commercial floorspaces proposed are relatively narrow in depth from the front elevation of the building, and therefore a higher floor-to-ceiling height is not needed in order to achieve an appropriate level of daylight entry into the rear of these spaces; and,

1. We are persuaded that a floor-to-ceiling height of 3.0 metres is a flexible space for a range of commercial uses and will provide the level of flexibility sought by DDO11.
2. An issue arose during the course of the hearing regarding the manner in which the Applicant proposes to lower the floor levels of the two commercial tenancies in order to provide a 3.0 m floor-to-ceiling height. As the site slopes from south to north, at the northern end, entry to the proposed bluestone paved undercroft is provided at grade. At the centre of the site, access from the footpath is via several steps, and from further to the south, entry to the foyer/commercial shops requires a ramp. There was considerable discussion, regarding the appropriateness of this access, and whether the stepping down a further 300mm into the commercial shops was a practical or desirable solution. We accept the submissions from Council that the proposal to accentuate the difference in levels between the commercial tenancies and the footpath is not ideal. However, we consider it to be an appropriate and reasonable approach in an effort to balance the Council's suggestion of increasing floor to ceiling heights, and the restrictions imposed by the mandatory building heights on the review site.
3. In our assessment of the achievement of a net community benefit, we consider that the range of benefits associated with the design response and achievement of various policy objectives which we have already described, far outweighs the disbenefit caused by a small increase in the difference in levels when accessing the site from the Upper Heidelberg Road Footpath. Having regard to the design that is before us, we find that it successfully manages the change in levels, and provides for an appropriate level of access to the building, and treatment of the interface to the public realm. We do not consider it preferable or appropriate to require the loss of a floor of the building, and subsequent loss of housing supply and diversity, to address this issue.

1. Council's grounds of refusal raise a concern with the extent of residential land use within the proposed building, particularly within the ground floor, and argues that additional commercial floorspace should be provided at the ground floor. Unfortunately the submissions made by Council at the proceeding did not build on this ground of refusal, or explain the reasons behind the concern. Mr Biacsi, who provided expert evidence at this hearing, also presented evidence last year at the Tribunal hearing of Pure Projects Pty Ltd v Banyule CC [2017] VCAT 1290 for 19-33 Upper Heidelberg Road, which is positioned directly across the road to the west. In that hearing some six months previous, he supported the fact that no commercial floor space should be provided in that proposal, as its location in relation to the 'core' of the Activity Centre was approximately one kilometre to the north. However, in regards to the review site of this proceeding, he supports ground floor retail space by, "activating the street edge to Upper Heidelberg Road with commercial/café tenancies that are virtually fully glazed and address the street frontage."
2. We agree with the identification provided by a number of expert witnesses who described this site at an edge of activity centre location. At such locations we understand that there are challenges in creating viable commercial outcomes. We therefore need to be persuaded by the Council that the economic realities of this activity centre lend itself to the provision of additional commercial floorspace at this location. Unfortunately, no such persuasion was attempted.
3. In the absence of any submissions, we are persuaded by the various evidence called by the Applicant in this proceeding, that supports the range and mix of uses proposed for the review site.

1. For the reasons set out above, we find the proposed development to be a well modelled and articulated building, that will appropriately respond to the various guidance from the Banyule Planning Scheme to achieve a high quality architectural landmark statement on this important gateway site. Subject to one change to part of the setbacks to Upper Heidelberg Road, we also find that the proposal will respond appropriately to its various interfaces, and present a scaled building that is clearly supported and encouraged on the review site.

WILL THERE BE ANY UNREASONABLE OFF-SITE AMENITY IMPACTS?

1. The respondents raised a number of concerns regarding the potential for the proposed development on the review site to create off-site amenity impacts by way of visual bulk, overlooking and noise impacts. We have addressed above the potential for visual bulk impacts, and have found that the proposed building will present a well articulated and interesting architectural built form that will present a scale anticipated and indeed encouraged on this gateway site.
2. A number of the residents raise concerns regarding the potential for people on balconies and within apartments to overlook the nearby properties downhill and to the east of the review site. The Banyule Planning Scheme seeks to restrict overlooking where such will occur within 9 metres of a property. As we have identified above, as a result of the siting of the railway reserve, the closest residential properties to the east are separated by at least 29 metres. While views will be obtained over these properties, we do not consider that the extent of overlooking that could occur from the proposed apartments on the review site could be considered unreasonable, having regard to the guidance provided by the Banyule Planning Scheme.
3. The nearby residents also raise a concern regarding the potential for noise from the apartments to impact the nearby residential properties, particularly noise from the proposed communal roof terrace on the fifth floor. We share the observations of Mr Poole, that the communal roof terrace is of such a size that it is unlikely to be the venue for any sizable function. The roof terrace has a maximum width of around 3 metres, and a length of around 22 metres. While it will enable a number of residents and guests to use this space concurrently, it appears to us that the number of people who could use this space at the one time is limited. We also presume that because there are several large apartments also located on the Fifth Floor, that the Body Corporate will impose some restrictions on the times that the roof garden will be accessible.
4. We anticipate that noise levels from the proposed apartment building will be not unlike that expected from other apartment buildings in this activity centre, where from time to time noise from residents at a reasonable level can be anticipated. Given the nearby noise sources of traffic along Upper Heidelberg Road and Lower Heidelberg Road and trains along the railway reserve, we do not anticipate the proposed development to be capable of creating a level of noise from residents that will unreasonably impact the enjoyment of the nearby residential properties.
5. We also note from the shadow diagrams prepared as part of the application that nearby residential properties will not be affected by overshadowing between 9:00am and 3:00pm at the equinox.
6. For these reasons we find that the proposed development will not result in any unreasonable levels of off-site amenity impacts to any of the surrounding residential properties.

IS AN APPROPRIATE LEVEL OF INTERNAL AMENITY ACHIEVED?

1. None of the parties that oppose the grant of the permit raise any concern in relation to the design and layout of the proposed apartments themselves, having regard to matters of internal amenity. We can confirm from our own analysis that the proposed apartments will provide an appropriate level of internal amenity. We make this finding having regard to the size of the apartments, the orientation of the living areas and balconies, the extent of daylight and solar access that will be enjoyed, the convenient car parking facilities provided, the width of the communal corridors and extent of natural daylight to be provided to those spaces, and the location of the site in this desirable activity centre location.
2. A concern was raised during the course of the hearing that the extent of a garden wall that is sought to be achieved across part of the eastern elevation, may impact the receipt of daylight into a number of the proposed apartments. We note what is proposed here is not a solid continuous green wall, but rather the presentation of a green 'curtain' to selected parts of the building. The green curtains are contained to parts of the elevation that sit in front of the proposed bedrooms, and thus will not restrict the amount of daylight that is to be enjoyed by the main living areas in each of the proposed apartments. While the extent of landscaping proposed may reduce the amount of daylight to some of the proposed bedrooms, this detriment will be accompanied by the benefit to be enjoyed by the additional shading provided to this elevated location, in addition to the cooling effect that will be appreciated in the warmer months. For these reasons we are not persuaded that the impact on daylight that will occur as a result of the landscape treatment of parts of the eastern elevation will have an unreasonable impact on the internal amenity of the proposed apartments.
3. Mr Fyfe submits that this proposal provides insufficient communal facilities to residents, including a communal roof deck that is undersized to fit all of the occupants of the proposed apartments. We consider the provision of a communal roof deck to the review site to be a bonus, rather than a necessity, having regard to the size of the apartments and balconies that are proposed on the review site, and also having regard to the range of social spaces that are available in this activity centre. For these reasons we are not persuaded by the submissions that the extent of communal facilities to be provided within this proposed development to be a matter that makes the amenity to be enjoyed by future occupants unreasonable in any regard.
4. For these reasons we find that the proposed development will achieve an appropriate level of internal amenity for future occupants.

DOES THE PROPOSAL APPROPRIATELY PROVIDE FOR CAR PARKING AND TRAFFIC MOVEMENTS?

1. The proposed development consists of 71 two bedroom apartments, 9 three bedroom apartments, and 420 m² of commercial floorspace. It is the evidence of Mr Walsh that the provisions of Clause 52.06 of the Banyule Planning Scheme require the provision of 121 car parking spaces on the review site. The proposal seeks to provide 191 car parking spaces on the review site. As such, no planning permit is required to reduce the amount of car parking to be provided.
2. It follows from the analysis above that the proposed development provides 70 additional car parking spaces on site, over that required by Clause 52.06 of the Banyule Planning Scheme. In the decision of Pure Projects Pty Ltd v Banyule CC [2017] VCAT 1290 the Tribunal considered a similar situation where a development comprising 112 dwellings (and 150 square metres of retail floor space) was to be provided with an oversupply of 33[17] car parking spaces. In that decision the Tribunal remarked as follows:

[121] A ground of refusal issued by the responsible authority is:

The oversupply of car parking on the site is contrary to the transport sustainability objectives of clauses 21.02, 21.04, 21.07 and 22.05

[122] I agree with the responsible authority that in general planning terms it is preferable to provide less rather than more car parking on sites that are within an activity centre and near to public transport. Less car parking should encourage customers, residents and visitors to use alternate transport modes.

[123] I also accept that policy generally encourages sustainable development (clause 21.07-1) encourages use of walking, cycling and public transport to minimise car dependency (clause 22.05).

[124] However, the responsible authority and the Tribunal on review are required to apply the provisions of the scheme. Policy is not to be applied as a control, but as a framework when discretion provided by the planning controls has to be exercised. Clause 52.06 provides that a permit may be granted to reduce the provision of car parking spaces. A development that provides the number of spaces required by clause 52.06-5 does not require planning permission in respect of the number of spaces to be provided. There is no discretion to be exercised, and therefore the policy directions contained in clauses 21.02, 21.04, 21.07 and 22.05 cannot be applied.

[125] I agree with the applicant that the clauses would be operable only if planning permission is required to provide more than a specified maximum number of spaces. This might be enacted through a Parking Overlay as operates in Melbourne's CBD, under which permission is required to provide any car parking spaces.

[126] As the Banyule Planning Scheme does not operate in this manner, I find that I do not have any discretion to exercise with regard to the number of car parking spaces. I therefore cannot support the fourth ground of refusal regarding car parking.

1. We respectfully disagree with the findings of the Tribunal in that decision. While no planning permit is required to provide additional car parking spaces on site, we also need to be satisfied that the provision of car parking, and the development as a whole, achieves policy set out at both a State and local level. These policies include that at Clause 18.02-1, which is set out below:

To promote the use of sustainable personal transport.

Encourage the use of walking and cycling by creating environments that are safe and attractive.

Develop high quality pedestrian environments that are accessible to footpath-bound vehicles such as wheelchairs, prams and scooters.

Ensure development provides opportunities to create more sustainable transport options such as walking, cycling and public transport.

Ensure cycling routes and infrastructure are constructed early in new developments.

• Ensuring integration with walking and cycling networks.
• Providing end of trip facilities for pedestrians and cyclists at public transport interchanges.

1. We also note the following objective of Clause 18.02-3.

To facilitate greater use of public transport and promote increased development close to high-quality public transport routes in Metropolitan Melbourne.

1. This policy theme is continued at local level, as demonstrated from the following policy extracts from Clause 21.07-1.

To promote a safe, efficient and effective integrated transport network for all abilities that reduces our reliance on private cars.

• Encourage a safe, continuous, direct and convenient local on-road bicycle network.
• Encourage and support walking as a preferred transport mode on short trips.
• Improve accessibility to and within Activity Centres and Neighbourhood Centres.
• Encourage the provision of access for people with disabilities and limited mobility in all streets, public transport infrastructure and public and commercial buildings.
• Encourage appropriate traffic management and provision of car parking.
• Encourage increased use of public transport, particularly to and from Activity Centres, Neighbourhood Centres and major employment areas.
• Advocate for improvements to the public transport service, accessibility and infrastructure in Banyule.
• Encourage the provision of adequate and appropriately located car parking at transport interchanges, Activity Centres and Neighbourhood Centres and in association with individual uses.
• Approach parking as a limited, shared resource in Banyule and use a wide range of parking management tools to manage parking demand.
• Discourage land uses and development adjacent to arterial roads which would detrimentally affect the capacity of those roads.
• Encourage high quality pedestrian links to key destinations with appropriate way finding and remove physical barriers within the existing pedestrian network.
• Support integrated transport and pedestrian improvements around train stations and other public transport nodes and interchanges to encourage the use of public transport.

Objective 2 - Integration of Transport and Land Use

To facilitate land use and development in Banyule that will support sustainable transport and reduce the distance travelled.

• Support and facilitate a mix of land uses and greater housing densities in and around locations that offer greatest access to public transport, including railway stations, tram routes and high frequency bus routes, and walking and cycling infrastructure.
• Encourage new developments that incorporate sustainable transport modes to assist in reducing parking demand and traffic.
• Require the preparation of Green Travel Plans where there is a substantial reduction in car parking from Clause 52.06 requirements and to determine car parking credits.
• Encourage businesses and new developments to provide for adequate end of trip facilities for pedestrians and cyclists.

1. We also note the following policies from Clause 22.05-2.
   • To ensure that the built environment is designed to promote the use of walking, cycling and public transport, in that order.
   • To minimise car dependency.
2. In addition to the policies which are set out above, State and local policy encourages the achievement of urban consolidation in well serviced locations, particularly in activity centres, as one means by which to encourage more people to use sustainable public transport, as opposed to cars. While many parts of Melbourne rely significantly on the car for transport, there are many good reasons why this historical trend cannot continue. The broad encouragement provided to the creation of additional housing in locations accessible to the Principal Public Transport Network, is a policy encouragement that the site benefits from, and must respond to.
3. We also note the range of policy that seeks to encourage affordable and more diverse housing. We understand that true affordable housing refers to that offered below market rates, which is not what is proposed here. However the attachment of an additional surplus car parking space to every two bedroom apartment would have a significant impact on housing affordability, and the breadth of the housing market that could afford to purchase in this well serviced location. It would also diminish the extent to which the proposed apartments on the review site provide a level of diversity, as compared to the detached housing with almost boundless parking availability that dominates the local housing market.
4. We consider it to be counterintuitive for the proposed development to, on the one hand, draw benefit from policies at both the State and local level that encourage urban consolidation in this well serviced location, and then on the other hand, to provide surplus car parking on the review site. We anticipate that such surplus car parking will only encourage higher rates of car ownership than is necessary in this well serviced location, and thus also encourage a higher rate of dependency on the private car for transport, rather than the numerous options for public transport that are available in this locality. In short, we consider that the proposal to provide a surplus number of car parking spaces on the review site, to stand in direct contrast to State policy at Clauses 18.02-1 and 18.02-3, and similar policy that exists at a local level.
5. For these reasons we concur with the Tribunal decision of Roundbay Pty Ltd v Port Phillip CC [2015] VCAT 1890 which contains the following reasons:

[95] We have however, reservations about the surplus of 50 car spaces that in this application are proposed to be allocated to residents and commercial tenants on demand. The implications of supporting car spaces that are not required by the Planning Scheme in terms of policy that actively encourages non-based car travel is a concern to us. In reaching that view we have had regard to Ms Dunstan's evidence that the location of the site, within close proximity to the St Kilda Road Employment Precinct providing convenient access to various commercial and community uses combined with excellent public transport to cater for trips further afield, provides an environment where non-car based travel should be actively encouraged. We agree with her evidence that allocating car spaces for visitors or customers dissuades people from using alternate modes and think the same argument can apply to a supply of long term resident parking beyond what is called for by the Planning Scheme or justified by empirical evidence.

[96] We accept there is no parking overlay that limits car parking to a specified maximum, but we find strong support in policy for sustainable transport alternatives to the private car, encouraging a modal shift in private transport, promoting a reduced number of private motorised trips and limiting vehicle use to create a more sustainable city. We are not persuaded that providing significantly more car spaces for residents than required by the Planning Scheme accords with these policy directions.

1. For these reasons we find that we should not allow the proposed development to provide a surplus amount of car parking spaces on site, which could be seen to encourage additional private vehicle trips on the surrounding road network. We will apply a permit condition that requires the surplus car parking spaces to be deleted.

1. It is the evidence of Mr Walsh that the proposed development will generate in the order of 480 vehicle movements per day, and at most 48 movements within a peak hour. We consider that these figures will reduce significantly as a result of our decision above to delete the 70 surplus car parking spaces that were proposed for the review site. It is the evidence of Mr Walsh that the surrounding road network can accommodate the additional vehicle movements, though with some additional delays to be experienced on the nearby arterial roads.
2. A number of the residents sought to test this evidence based on their appreciation of the extent of delays in congestion that already occur on the surrounding road network. We understand and appreciate that the surrounding road network is likely to be heavily congested in peak hours. That is an existing traffic condition that is experienced across much of Metropolitan Melbourne, and particularly in activity centres. It is that existing traffic condition which makes it appropriate that additional development be encouraged in this location, where people have a real choice to be able to access and use public transport, instead of continuing to rely on private transport for all trips.
3. Despite the access provided to public transport, we acknowledge that developments of this kind will still add to the existing traffic levels in the local area. Unfortunately, that outcome cannot be avoided. However it is still a far more preferable outcome, and one that is strongly encouraged by planning policy, than the alternative which is to push all new housing to the fringes of Melbourne, where public transport is scarce, and where people are forced to spend longer and longer commute times on Melbourne's road network.
4. We note in this proceeding that the evidence of Mr Walsh is supported by the independent analysis conducted both by Council's traffic engineers, and by those at VicRoads, which both support the proposed development and its likely impacts on the surrounding road network. Having regard to the evidence of Mr Walsh, and the support provided by the independent reviews, we find that the proposed development will not cause an unreasonable traffic impact on the surrounding road network.
5. Finally, we note the concerns raised by a number of residents regarding the potential for conflict between vehicles entering and exiting the site, and pedestrians using the footpath along Upper Heidelberg Road. Ms Roberts submits that we should require the review site to consolidate with the land further north, which may have access to a rear laneway that ends further to the north again. Such a requirement is beyond our power in this proceeding. The Applicant has a right to seek a permit for the development of the review site on its own. We need to make an assessment based on the merits of this proposal, and cannot direct any land owner to consolidate land, or consider only one possible future development model.
6. The proposed vehicular access to the review site will provide for vehicle movements in a forward direction, with the development providing both a level platform for vehicles when approaching the footpath from within the site, and the required sightline distances to the footpath environment. For these reasons we are persuaded by the evidence of Mr Walsh that the proposed development provides a safe environment in which traffic movements will intersect with pedestrians.
7. For these reasons we find that the proposed development will not result in any inappropriate or undesirable impacts by way of traffic movements or car parking.

1. A number of other matters about permit conditions were raised by the parties. With respect to those matters, other than those already addressed above, we summarise our conclusions as follows:

1. We will delete the condition drafted by Council requiring each dwelling to be supplied with a rainwater tank, along with external clotheslines, solar hot water units and solar panels. We do not consider it appropriate to apply this type of condition to an apartment building, but it appears the condition applies more to townhouse developments, where these services would be provided on an individual basis to each residence. Here the plans before us depict where a communal rainwater tank will be provided in the basement, and also depict the location of solar panels on the roof and services in other various locations. We do not consider it appropriate for external clotheslines to be provided on a development of this nature. 2. We have drafted Condition 3(f) to address the desire expressed by a number of parties and experts in this proceeding, which we share, to ensure that landscaping within the development is owned and managed by the body corporate on a co-ordinated basis.

1. Contrary to the submissions of the Applicant, we will require the retention of Conditions 5 & 6, as we consider that they provide certainty to all parties regarding the restrictions on noise impacts to the surrounding environment.

1. We have agreed with the Applicant regarding some suggested changes to the conditions drafted by Public Transport Victoria, in order to provide some added flexibility. We consider this appropriate as the conditions do not relate to the role of Public Transport Victoria as a referral authority, but rather regarding the impact of the abuttal of the VicTrack land. However, we are not persuaded by the Applicant that Condition 37 (as set out in Appendix A) is unnecessary given the context that surrounds the review site. 2. The Council conceded that its notes would likely be deleted as is the common practice of the Tribunal, but some of the Respondents sought the notes to be transcribed into conditions. We consider it appropriate to delete the notes, as they address matters not suitable for conditions on a planning permit. 3. Otherwise, where parties made competing submissions concerning the final form of various conditions, the form of conditions set out in Appendix A reflects our preferred approach.

1. For the reasons given above, the decision of the responsible authority is set aside. A permit is granted subject to conditions.

• Use of the land for dwellings
• To construct a building and construct or carry out works
• To alter accessways to a road in a Road Zone, Category 1

1. Before the use and development permitted by this permit 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 plans prepared by Demos Architects drawing Nos TP.A01 to TP.A23 dated 8 March 2018 Revision G) but modified to show:
   • (a) A minimum 2.0 metre setback from Upper Heidelberg Road, for that part of the building located south of the commercial tenancies and Apartments 1.17, 2.17, 3.17, 4.15 and 5.05, with the existing curved presentation and variation in setbacks to Upper Heidelberg Road to be retained.
   • (b) A minimum 10.0 metre setback from the southern corner of the site, to provide for the establishment of a large canopy tree in this location.
   • (c) The deletion of all car parking on site that is surplus to the provision of the amount of car parking required under Clause 52.06 of the Banyule Planning Scheme.
   • (d) Natural ground level and associated AHD on Section Drawing 3-3 on Drawing No TPA16 Revision G must be in accordance with the Certified Re-Establishment, Features and Level Survey Plan prepared by Terrain Consulting Group dated 9 April 2018 to demonstrate the building height complies with the maximum mandatory building height of 19 metres;
   • (e) A reduction in building height to 19 metres in accordance with the plans prepared by Demos Architects dated 10 April 2018 identified as Revision G (TPA11 and TPA12) that are attached to the Affidavit of Andrew Smith, Licensed Surveyor dated 27 April 2018.
   • (f) The acoustic design items that need to be incorporated into the design of the development including façade glazing and façade walls with acoustic specifications to reduce noise levels inside habitable spaces, as recommended in the acoustic report prepared by Aecom dated 30 March 2017.
   • (g) Landscaping as required by Condition 3 of this permit;
   • (h) Engineering plans showing a properly prepared design with computations for the internal drainage and method for of disposal of stormwater from all roofed areas and sealed areas including:
     1. The use of an On-site Stormwater Detention (OSD) system;
     2. The connection to the Council nominated legal point of discharge;
     3. The integration, details and connections of all Water Sensitive Urban Design features in accordance with the endorsed Sustainable Management Plan and STORM report and include drainage details as a result of landscaping.

Please note the Engineering plans must show all protected and/or retained trees on the development site, on adjoining properties where tree canopies encroach the development site and along proposed outfall drainage and roadway alignments (where applicable) and every effort must be made to locate services away from the canopy drip line of trees and where unavoidable, details of hand work or trenchless installation must be provided.

(i) A schedule of external building materials and colours, including details of cladding and roofing materials; the schedule should be presented on a separate sheet and must include colour samples.

(j) All sustainable design features indicated in the amended Sustainable Management Plan (SMP) required under Condition 17. Where sustainable design features outlined in the SMP cannot be visually shown, include a notes table providing details of the requirements (i.e. energy and water efficiency ratings for heating/cooling systems and plumbing fittings.

(k) Parking bays and bicycle spaces allocated to each shop, food and drinks premise, visitors and residential owners with visitor parking spaces on Basement Level 1.

(l) An automatic gate for vehicles entering the ramp from Basement Level 1 onto Basement Level 2 for security reasons and to prevent the public from accessing parking spaces on the lower basements levels.

(m) Alterations to the access way to prevent right hand turn movements to and from site along with the appropriate directional signage that is to be displayed to the satisfaction of VicRoads.

(n) Installation of convex mirrors at each end of the access ramp to ensure motorists within the ramp can visually see other vehicles about to enter the ramp.

(o) A 3 metre wide accessway on either side of the intercom system at the entrance to the basement at ground level.

(p) Relocation of the three motorcycle parking spaces at Basement level 1 west against the wall of the basement, so as to maximise the available backing space out of car parking space 25.

(q) An increase of 300mm of the floor to ceiling height of the usable sections of the café and tenancy at ground level. This is to be achieved by lowering the ground floor by 300mm generally in accordance with the plans prepared by Demos Architects dated 27 April 2018 identified as Revision H (TPA01 and TPA16).

(r) An atrium at ground and first floor level general in accordance with the plans prepared by Demos Architects dated 27 April 2018 identified as Revision H (TPA06 and TPA07).

1. The development as shown on the endorsed plans must not be altered or modified without the prior written consent of the Responsible Authority.
2. Before the development starts, a landscape plan to the satisfaction of the responsible authority must be submitted to and approved by the responsible authority. When approved, the plan will be endorsed and will then form part of the permit. The plan must be drawn to scale with dimensions and three copies must be provided. The plan be generally in accordance with the Landscape Plan prepared by CDA Design Group Pty Ltd dated 12 April 2018 and must show:
   • (a) Replacement of the proposed street tree Tristaniopsis laurina (Kanooka) with Corymbia maculata (Spotted Gum) as proposed on the landscape plan of 19-33 Upper Heidelberg Road, Ivanhoe, or an alternative tree species that might be requested by the responsible authority.
   • (b) The planting of a large canopy tree in the southern corner of the site.
   • (c) Details of surface finishes of pathways and driveways.
   • (d) A planting schedule of all proposed trees, shrubs and ground covers, including botanical names, common names, pot sizes, sizes at maturity, and quantities of each plant for the following locations including the location, species and height at planting of street trees to be planted within the Upper Heidelberg Road site frontage and within the street at the cost of the developer.
   • (e) All species selected must be to the satisfaction of the responsible authority.
   • (f) The landscape plan must also include an in-ground irrigation system provided to all private landscaped areas.
   • (g) The landscape plan must also detail which parts of the landscaping infrastructure, including the planter boxes, are to be placed within common property, and thus be the responsibility of the body corporate to maintain.
   • (h) Before the use/occupation of the development starts or by such later date as is approved by the responsible authority in writing, the landscaping works shown on the endorsed plans must be carried out and completed to the satisfaction of the responsible authority.
   • (i) The landscaping shown on the endorsed plans must be maintained to the satisfaction of the responsible authority, including that any dead, diseased or damaged plants are to be replaced.
3. Noise emissions from any equipment required for refrigeration, air-conditioning, heating, ventilation and the like must comply with State Environment Protection Policy (Control of Noise from Commerce, Industry and Trade) No N-1 and/or Environment Protection (Residential Noise) Regulations 1997 and/or Environmental Protection Authority Noise Control Guidelines TG 302/92, whichever is deemed to be appropriate by the Responsible Authority.
4. The operation of fixed plant and equipment (spa pump/pool pumps/air-conditioning unit/vacuum unit etc) shall comply with the Environment Protection (Residential Noise) Regulations 1997 and/or Council's Local Laws. Prohibited times for use that apply to the use of fixed plant and equipment, are Monday to Friday before 7am and after 10pm and Weekends and public holidays before 9am and after 10pm (where audible with a habitable room of a neighbouring residential property).
5. The operation of fixed plant and equipment (spa pump/pool pumps/air-conditioning unit/ vacuum unit etc.) must not cause a Nuisance (as defined under the Public Health and Wellbeing Act 2008). A Nuisance may include noise, odour or any other thing deemed a "nuisance" under the Act. It is recommended that fixed plant and is not located within close proximity to neighbouring residential properties and where practicable, enclosed.
6. The walls of the development on the boundary of adjoining properties must be cleaned and finished in a manner to the satisfaction of the Responsible Authority.
7. All external materials, finishes and paint colours are to be to the satisfaction of the Responsible Authority.
8. 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.
9. 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.
10. Areas set aside for the parking of vehicles together with the aisles and access lanes must be properly formed to such levels that they can be utilised in accordance with the endorsed plans and must be drained and provided with an all weather seal coat. The areas must be constructed, drained and maintained in a continuously useable condition to the satisfaction of the Responsible Authority.
11. Areas set aside for the parking and movement of vehicles as shown on the endorsed plan(s) must be made available for such use and must not be used for any other purpose.
12. Vehicular access or egress to the subject land from any roadway or service lane must be by way of a vehicle crossing constructed in accordance with Council's Vehicle Crossing Specifications to suit the proposed driveway(s) and the vehicles that will use the crossing(s). The location, design and construction of the vehicle crossing(s) must be approved by the Responsible Authority. Any existing unused crossing(s) must be removed and replaced with concrete kerb, channel and nature strip to the satisfaction of the Council prior to occupation of the building. All vehicle crossing works are to be carried out with Council Supervision under a Memorandum of Consent for Works which must be obtained prior to commencement of works.
13. The boundaries of all car spaces, access and egress lanes and the direction in which vehicles should proceed along the access lanes must at all times be clearly indicated on the ground to the satisfaction of the Responsible Authority.
14. Prior to the commencement of the use, a Waste Management Plan must be submitted to and approved by the Responsible Authority. The Waste Management Plan must be generally in accordance with the Waste Management Plan prepared by WasteMin dated November 2016 and include:
    • (a) Dimensions of waste areas.
    • (b) The number of bins to be provided and capacity.
    • (c) Details on method and frequency of cleaning and maintenance of waste areas.
    • (d) Details of ventilation.
    • (e) Details of unwanted goods storage.
    • (f) Method of waste and recyclables collection including the need to provide for private services.
    • (g) Hours of waste and recyclables collection.
    • (h) Measures to minimise impact upon residential amenity.
    • (i) Method of presentation of bins for waste collection.
    • (j) Strategies for how the generation of waste and recyclables from the development will be minimised.
    • (k) Details as to how prospective purchasers will be advised that all refuse and recycling collection for the property shall be provided internally by a private contractor at the expense of the owner of the land.

When approved, the plan will be endorsed and will then form part of the permit and must be complied with at all times. Waste collection from the development must be in accordance with the plan, to the satisfaction of the Responsible Authority.

1. Before the development starts, a Construction Management Plan must be submitted to the satisfaction of the Responsible Authority. Once approved, the plan must be implemented to the satisfaction of the Responsible Authority. Unless otherwise agreed in writing the Plan must be consistent with the City of Banyule General Local Law No. 1, particularly in relation to:
   • (a) Containment of building sites
   • (b) Dust control
   • (c) Building site refuse
   • (d) Building works hours and noise control
   • (e) Construction, use and maintenance of vehicle crossings
   • (f) Occupation of, and obstructions on, roads and Council land
   • (g) Spoil on roads
   • (h) Unsightly land
   • (i) Stormwater and sediment control

The Plan must also include (but not be limited to) details of the following:

(j) Appropriate location of parking for all tradespersons, to ensure as far as practicable a design and measures for trades vehicles to park on-site where possible.

(k) A sign to be displayed on site at all times advising tradesman to park on the site where practicable and if parking on-street, not to illegally park across any driveway.

(l) A likely timeframe for construction (including demolition, commencement and any staging).

(m) Access and egress points for all vehicles to the site.

1. Prior to the endorsement of plans, the Sustainability Management Plan (SMP) prepared by GIW Environmental Solutions dated 30 November 2016 must be amended by a suitably qualified environmental engineer or equivalent to the satisfaction of the Responsible Authority to consider the following:
   • (a) Average 6.8 NatHERS rating for thermal energy efficiency.
   • (b) Natural ventilation provided to all habitable rooms with an operable window.
   • (c) A STORM report that demonstrates best practice has been submitted that relies on a minimum 1,678m2 of roof connected to a minimum 30,000 litre tank and connected to toilet flushing in all toilets onsite.
   • (d) Approximately 25 kWp of solar PV provided on the roof to contribute to onsite electricity consumption.

Where alternative initiatives are proposed to those specified, the Responsible Authority may vary the requirements of this condition at its discretion, subject to the development achieving equivalent (or greater) sustainable outcomes in association with the development.

When submitted and approved to the satisfaction of the Responsible Authority, the amended SMP and associated notated plans will be endorsed to form part of this permit.

1. Unless otherwise agreed in writing by the Responsible Authority the proposed development must not be occupied until:-
   • (a) The parking area(s) shown on the endorsed plan(s) have been constructed to the requirements and satisfaction of the Responsible Authority;
   • (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;
   • (c) Drainage works have been undertaken and completed to the requirements and satisfaction of the Responsible Authority; and
   • (d) The submission and approval of a Waste Management Plan in accordance with condition (15) of this permit.
   • (e) The bicycle parking area is made available for residents and commercial tenants.
   • (f) Basement and under croft lighting is installed in accordance with the relevant Australian Standards.
2. Except with the prior consent of the Responsible Authority, the café use permitted by this permit may only operate between the hours of 6.00am and 8:00pm.
3. Before the development starts, an environmental site assessment report prepared by a suitably qualified environmental professional in accordance with the Potentially Contaminated Land General Practice Note (Department of Sustainability & Environment, June 2005) must be prepared to the satisfaction of the Responsible Authority. The report must include a recommendation as to whether the condition of the land is such that an Environmental Audit should be conducted taking into account consideration of the proposed use. The findings of the site assessment must be implemented to the satisfaction of the Responsible Authority, including if required the preparation of an environmental audit.
4. If pursuant to condition 20 an Environmental Audit is required, then before the building is occupied or before any works associated with residential use start, one of the following steps must be completed -
   • (a) A Certificate of Environmental Audit for the land must be issued in accordance with Section 53Y of the Environment Protection Act 1970 and provided to the Responsible Authority.
   • (b) An Environmental Auditor appointed under Section 53S of the Environment Protection Act 1970 must make a statement in accordance with section 53Z of that Act that the environmental conditions of the land are suitable for the use and development allowed by this permit and that statement must be provided to the Responsible Authority.
5. If pursuant to condition 2A an Environmental Audit is required, then before buildings or works required by the audit start, a works plan must be submitted to the Responsible Authority setting out works which the Environmental Auditor engaged by the owner states are required to facilitate the Environmental Auditor are able to be undertaken before the Environmental Audit is completed. Any works proposed to be carried out under this condition must be in accordance with the works plan and to the satisfaction of the Responsible Authority and the Environmental Auditor.
6. If a Statement of Environmental Audit is issued for the land, the buildings and works and the use of the land that are the subject of this permit must comply with all directions and conditions contained within the Statement.
7. If a Statement of Environmental Audit is issued for the land, before the use starts and before the Banyule City Council issues a statement of compliance under the Subdivision Act 1988 and before an occupancy permit is issued under the Building Act 1993, a letter prepared by an Environmental Auditor appointed under section 53S of the Environment Protection Act 1970 must be submitted to the Responsible Authority to verify that the directions and conditions contained within the statement of Environmental Audit have been satisfied.
8. If a statement of Environmental Audit is issued for the land, and any condition of that statement requires any maintenance or monitoring of an ongoing nature, the owner(s) must enter into an agreement with the Banyule City Council under section 173 of the Planning and Environment Act 1987 which addresses these ongoing conditions. If a section 173 agreement is required, the agreement must be executed prior to the commencement of the permitted use. All expenses involved in the drafting, negotiating, lodging, registering and execution of the Agreement, including those reasonably incurred by the Responsible Authority, must be met by the owner(s).
9. This permit as it relates to use will expire if the use does not commence within two (2) years after the issue date of this permit.

In accordance with section 69 of the Planning and Environment Act 1987, an application may be submitted to the responsible authority for an extension of the period referred to in this condition.

1. This permit as it relates to development (buildings and works) will expire if one of the following circumstances applies:
   • (a) The development is not started within two (2) years of the issue date of this permit.
   • (b) The development is not completed within four (4) years of the issue date of this permit.

In accordance with section 69 of the Planning and Environment Act 1987, an application may be submitted to the responsible authority for an extension of the periods referred to in this condition.

1. All disused or redundant vehicle crossings must be removed and the area reinstated to kerb and channel to the satisfaction of and at no cost to the Roads Corporation prior to the commencement of the use and occupation hereby approved.
2. The crossover and driveway are to be constructed to the satisfaction of and at no cost to the Roads Corporation prior to the commencement of the use and occupation hereby approved.
3. The crossover and driveway must be designed in a way to limit access to a left-in/left-out movement only.

1. Before the development starts including demolition and bulk excavation, or other time agreed in writing with Public Transport Victoria, amended plans to the satisfaction of Public Transport Victoria and VicTrack 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 plans submitted with the application but modified to show:
   • (a) Protection screens or other suitable arrangement incorporated in to the eastern facade of the building to prevent objects falling or being thrown onto the rail corridor, and to prevent access to overhead traction wiring equipment. The screens must be located wholly within the title boundary of the site; and
   • (b) Deletion of any landscaping on the adjoining VicTrack land;
2. Before the development starts including demolition and bulk excavation, or other time agreed in writing with Public Transport Victoria, detailed construction/engineering plans and computations for any works or construction likely to have an impact on railway operations, railway infrastructure assets or railway land are to be submitted and approved by Public Transport Victoria, VicTrack and the Rail Operator. The plans must detail all excavation of the site adjacent to the railway corridor having any impact on the railway land, and ensure compliance regarding building clearances to aerial power lines as per the applicable Victorian Electrical Safety Regulations.
3. Before the development starts including demolition and bulk excavation, three (3) copies of a Demolition and Construction Management Plan must be submitted to Public Transport Victoria and VicTrack which must be to the satisfaction of Public Transport Victoria and VicTrack. The Demolition and Construction Management Plan must include details of (but not be limited to) management proposals to minimise impacts to VicTrack assets and the operation of the railway during construction and must set out objectives and performance and monitoring requirements for:
   • (a) Protection of all rail infrastructure to ensure rail infrastructure, including telecommunications and cabling, is not damaged during excavation or construction;
   • (b) Measures to protect the embankment from subsidence;
   • (c) Mitigate disruption to train services;
   • (d) Designate any areas to be used under licence during the construction process;
   • (e) Management of drainage, effluent, material stockpiles, fencing, hoardings to ensure VicTrack land is not used for, or impacted on, by these activities outside of the licence area;
   • (f) Public safety, amenity and site security;
   • (g) Operating hours, noise and vibration controls; and
   • (h) Air and dust management.
   • (i) When access to the rail environment is required, specify:
     1. Approvals and permits required from Public Transport Victoria, VicTrack and the Rail Operators prior to works commencing and prior to accessing the rail corridor;
     2. That the Rail Operator will be contacted to obtain their conditions and safety requirements for works on, over, under or adjacent to public transport land and/or easements and electrical infrastructure;
     3. That access to the public transport areas during construction must conform to all of the necessary public transport operator/s guidelines and instructions
     4. The rail safety requirements that must be adhered to by the permit holder.
4. All demolition and construction works must be carried out in accordance with the approved Demolition and Construction Management Plan. The Demolition and Construction Management Plan must be implemented at no cost to VicTrack, Public Transport Victoria and/or the Rail Operator.
5. Before the development starts including demolition and bulk excavation, all Construction Control and Indemnity Agreements as required by Public Transport Victoria and VicTrack (including if required by Public Transport Victoria an agreement with the Rail Operator) must be in place and must be to the satisfaction of Public Transport Victoria and VicTrack and at the full cost of the permit holder.
6. Before the development starts including demolition and bulk excavation, or other time agreed in writing with Public Transport Victoria, a schedule of building materials and finishes together with a report must be submitted to Public Transport Victoria, the Rail Operator and VicTrack. The report must demonstrate that the building materials and finishes are non-reflective to the eastern façade of the building and avoid using red or green colour schemes that may interfere with driver operations. The schedule of building materials and report must be prepared to the satisfaction of Public Transport Victoria in consultation with VicTrack and the Rail Operator.
7. Before the development starts including demolition and bulk excavation, a risk assessment workshop at the cost of the permit holder, is to be undertaken to the satisfaction of Public Transport Victoria, the Rail Operator and VicTrack to ensure that the collision loading for the building meets Australian Standard AS5100.
8. The permit holder must not access the rail corridor unless otherwise agreed with Public Transport Victoria and the Rail Operator, and must comply with the Rail Operator's third party access procedures.
9. Unless otherwise agreed in writing with Public Transport Victoria and VicTrack, any wall which may be permitted to be located on the railway reserve boundary shall not have any fitting, window or doorway when opened intrudes into the railway reserve boundary.
10. No lighting is to spill light onto railway tracks or interfere with the visibility of signals and the rail lines by train drivers to the satisfaction of the Rail Operator.
11. The permit holder must take all reasonable steps to ensure that disruption to rail operations are mitigated during the construction of the development and in compliance with the Rail Operator's safety and environmental requirements contained within the Rail Operator's construction control and indemnity agreement. Foreseen disruptions to rail operations during construction must be communicated to the Rail Operator and Public Transport Victoria fourteen days (14) prior to the commencement of those works.
12. The permit holder must ensure transport infrastructure is not damaged as a result of the works and is not altered without prior consent of Public Transport Victoria. Any damage to public transport infrastructure caused by the permit holder must be rectified to the satisfaction of Public Transport Victoria, VicTrack and the Rail Operator at the full cost of the permit holder.
13. No drainage, effluent, waste, soil or other materials must enter or be directed from the site to rail land/easement or stored or deposited on rail land/easements, unless otherwise agreed to in writing by either Public Transport Victoria or VicTrack.
14. The building and works (including any hoarding during construction) must not encroach on the railway reserve to the satisfaction of VicTrack and Public Transport Victoria.
15. Permanent or temporary soil anchors or nails must not be installed in rail land and/or easements without the prior permission of VicTrack and Public Transport Victoria.
16. Walls facing the railway reserve boundary must be cleaned and finished using a graffiti resistant finish or alternative measures used to prevent or reduce the potential of graffiti. Maintenance of the building facades and removal of graffiti must be carried out on an ongoing basis and fully conducted within the site boundaries and at the full cost of the permit holder.

1. The owner of the land must enter into an agreement with Yarra Valley Water for the provision of water services.

[1] The submissions and evidence of the parties, any supporting exhibits given at the hearing and the statements of grounds filed have all been considered in the determination of the proceeding. In accordance with the practice of the Tribunal, not all of this material will be cited or referred to in these reasons.

[3] Clause 11.03-2 of the Banyule Planning Scheme

[7] Mrocki v Bayside CC [2015] VCAT 1371 [48]

[8] Shire of Gisborne v King [1994] VicRp 23; [1994] 1 VR 364, 370

[9] VPD Group Pty Ltd v Greater Geelong CC [2014] VCAT 913 [11]

[10] Church Street Hawthorn Pty Ltd v Boroondara CC [2016] VCAT 766 [17]

[11] Rizzi v Rockdale Municipal Council (1994) 85 LGERA 113, 115

[12] Benedetti v Moonee Valley CC [2005] VCAT 2227 [31]

[13] Hooper v Mornington Peninsula SC [2008] VCAT 2115 [37]

[14] Tribe v City of Greater Geelong [2002] 2 VPR 224, 227

[15] Faversham Mews Pty Ltd v Boroondara CC [2016] VCAT 1954 [26]

[16] Page 37 of Banyule C93 (PSA) [2014] PPV 89.

[17] The extent of the oversupply was reduced to 33 vehicles following the traffic and car parking evidence of Mr Hunt in that proceeding, which was reflected in conditions imposed by the Tribunal.