1. Submissions of Mr Martin and Ms Robson also set out that when including the roof plant and lift overrun, the maximum height of the building in the proposal before us is 28.1 metres, when the previous proposal was 29.8 metres.

1. The policy framework of the Scheme has been updated since Shouman primarily through Amendment C269yar. We discuss the current policy framework for our decision making in more detail below. In doing so we note the submissions of Mr Pertile, that in Shouman, the Tribunal considered what was then proposed Amendment C269yar, as it stood at that time.
2. In Shouman, the Tribunal commented that it was aware of Amendment C269 and that it was provided with a copy of the Council's submission to an independent panel about this amendment. However, the Tribunal noted that the panel had not made findings at the time of the Tribunal hearing in Shouman. The amendment had correspondingly not been adopted by the Council at that time.
3. In Shouman, the Tribunal commented that 'I have considered these policies but as they are yet to find their way into the Planning Scheme I give them limited weight.'[15] The Tribunal then commented that the relevant parts of the policy framework appeared to generally align noting:

They promote use and development and economic growth in this nominated employment area with mid-rise development that is required to respond to its strategic and physical contexts while transitioning to adjoining low rise neighbourhoods and minimising off-site impacts. The Yarra River and its corridor remains as a feature identified as having strategic importance.[16]

1. The Tribunal also commented separately that the changes in Amendment C269yar sought to change the consideration of land for employment uses with the Land being nominated as employment land. We examine the policy framework for employment land, as it is now expressed in the Scheme below. This includes that other changes have also occurred to industrial land use policy at clause 17.03-3 as a result of Amendment VC215.

1. Mr Pertile submits that we should have some regard to submissions made to a decision of the Tribunal at 1E Marine Parade[17] (1E Marine Parade). In particular he referred us to an urban design evidence statement of Ms Annabel Paul prepared on behalf of Mr Pertile for the hearing for 1E Marine Parade.
2. The decision of the Tribunal in 2019 for 1E Marine Parade did not support the evidence of Ms Paul, determining to grant a planning permit for that proposal before it at that time.
3. In Shouman, the Tribunal gave less weight to the 1E Marine Parade decision, noting a number of differences in the site and decision making context. In particular Shouman gave greater weight to built-form policies that sought contextually responsive development, including the protection of the Yarra River corridor, than policies promoting economic development as was discussed in the 1E Marine Parade decision.[18]
4. The Council and other Respondents submit we should give little to no weight to the 1E Marine Parade decision given its age, the change in policy context and the fact that the permit issued from that decision has now lapsed. The potential built form outcome from this decision no longer exists.
5. The Applicant did not seek to rely heavily on the 1E Marine Parade decision although they commented that the decision retained some relevance as a previous decision in the area for a comparably sized building.
6. Given the permit for this development has now lapsed, and the changes to policy since the 1E Marine Parade decision, we give that decision very little weight.

1. The Respondents also submit that the Applicant should not have undertaken the planning permit application and review but rather, should have taken the previous Shouman decision on appeal to the Victorian Supreme Court rather than reapply for what they say is a near identical proposal. The fact that the Applicant did not appeal the Shouman decision to the Supreme Court does not mean we can simply dismiss the proposal before us. We must still consider the application before us and find it appropriate to do so based on the usual 'tests' for 'repeat appeals' detailed earlier.

1. We address the merits of the proposal below in context that:
   1. The Land remains in the same zone and overlays as we discuss later in these reasons.
   2. Amendments to the Scheme, notably Amendment C269yar, have amended the policy context of decision making.
   3. Other than some renovations and extensions made to dwellings to the north, there has been no significant change to the physical context of the site or immediate surrounds.
   4. The application has changed, as described above.
   5. The weight to be given to the 1E Marine Parade decision should be even less than it was in Shouman given the permit arising from this decision has now lapsed and the policy changes that have occurred since it was made.
   6. Our proceeding includes expert evidence that was not before the Tribunal in Shouman.

WHAT ARE THE CURRENT SCHEME PROVISIONS APPLYING TO THE LAND?

1. As set out already the Land is in IN3Z with the land to the south in IN1Z and land to the north in NRZ1. This zone context has not changed since the Shouman decision and depicted in figure 7 below. The only overlay affecting the Land remains the Development Contributions Plan Overlay - Schedule 1. This overlay does not impact our decision making.

Figure 7 -Zone plan from VicPlan. Land marked in blue outline.

1. As the zone provisions have not changed[19] since the consideration of Shouman we adopt the description in Shouman at paragraphs 34 to 37:

[34] Both a use and development for office require a permit in the IN3Z and no limitation on the amount of leasable floor area is specified in the schedule to this zone. The purposes of the IN3Z are:

To implement the Municipal Planning Strategy and the Planning Policy Framework.

To provide for industries and associated uses in specific areas where special consideration of the nature and impacts of industrial uses is required or to avoid inter-industry conflict

To provide a buffer between the Industrial 1 Zone or Industrial 2 Zone and local communities, which allows for industries and associated uses compatible with the nearby community.

To allow limited retail opportunities including convenience shops, small scale supermarkets and associated shops in appropriate locations.

To ensure that uses do not affect the safety and amenity of adjacent, more sensitive land uses. [Tribunal's underlining]

[35] Decision guidelines are separately specified for uses and buildings and works under clauses 33.03-2 and 33.03-4 respectively. The former includes the effects of the use on nearby residential areas, nearby industries and traffic.

[36] Decision guidelines for buildings and works relevantly refer to the following:

• Any natural or cultural values on or near the land.
• Streetscape character.
• Built form.
• Landscape treatment.
• Interface with non-industrial areas.
• Parking and site access.
• Lighting. [Tribunal's underlining]

[37] Residential land on the opposite side of Marine Parade is in the NRZ1. Except on sloping sites, building height must not exceed 9 metres or two storeys at any point.[20]

1. From our review of the Shouman decision, and consistent with submissions to the proceeding before us, overlays applying to nearby land also remain the same. Again we adopt the following description set out in Shouman:

[39] In terms of the surrounding context, various overlay controls apply, including:

• DDO1-D to the east and south in which maximum building heights (that cannot be varied with a permit) range from 8m to 11m relative to a defined setback line referenced from the Yarra River.
• DDO1-E in which maximum building heights of between 11m and 18m apply (that cannot be varied with a permit) within 25m of a defined setback line referenced from the Yarra River, increasing to a discretionary maximum height of 18m if a building is more than 25m from the setback line.
• Significant Landscape Overlay - Schedule 1 (SLO1) which amongst other things invokes permissions for vegetation removal in certain circumstances and most buildings and works greater than 6m in height.
• Heritage overlays to the west (HO313 - Charles Street precinct) and east (HO9 - Clark Street / Helliers Street Abbotsford east of Clarke Street and including Abbotsford Convent and Collingwood Children's Farm).

[40] The south-east corner of the review site is approximately 8m from land at 13 Harper Street subject to DDO1-D (and 61m west of 3A Marine Parade) in which a maximum (mandatory) 11m height control applies.

1. As also set out in Shouman, we agree that the SLO1 follows effectively the same alignment as DDO1 for land close to the Land. We note that the SLO1 extends further than the DDO1 in that it also applies to the Abbotsford Convent land. We note that the alignment of both the DDO1 and SLO1 appears to be taken from the centre line of the Yarra River.

Figure 9 - SLO1 boundary as referred to in Shouman.

1. Other relevant provisions applying to the Land include car parking provisions set out in clause 52.06 of the Scheme and bicycle parking provisions set out in clause 52.35 of the Scheme.

What is the current planning policy context applying to the Land?

1. Below we set out the current applicable planning policy of the Scheme and refer to key changes we identify since the Shouman decision.

1. Clause 02.01-4 identifies the Yarra River, along with Darebin Creek and Merri Creek as 'significant environmental assets that have a number of functions, including providing for leisure and recreation, forming habitats to enhance biodiversity, acting as the city's 'green lungs', and managing water flow and stormwater.'
2. Strategies of the MPS for the natural environment, at clause 02.03-2 state:
   • Protect the significant natural environment, landscape values and cultural heritage of the Yarra River and the Darebin and Merri Creek corridors.
   • Improve and manage public access to Yarra's water corridors.
   • Improve pedestrian and cycle links across the Yarra River and Darebin and Merri Creeks to neighbouring municipalities.
   • Protect and enhance Yarra's biodiversity within and beyond waterway corridors by creating, improving and connecting new and existing green spaces.
3. Clause 12.03 of the Scheme is titled 'Water bodies and wetlands' and includes State, regional and local policy. The Applicant's submissions included a question of law as to whether the following policies are relevant to the assessment of the proposal when overlay controls for the protection of the Yarra River corridor do not apply to land affected by the policy:
   • Clause 12.03-1S: River and riparian corridors, waterways, lakes, wetlands and billabongs.
   • Clause 12.03-1R: Yarra River protection.
4. This question is examined in more detail in Appendix A. In summary the legal finding is that both policies have application and the weight to be afforded to them will depend on the facts and circumstances of the particular proposal. The legal finding is that the Land is not within the Yarra River corridor or a river corridor, but the polices are relevant having regard to the permissions sought by the Applicant. The weight to be given to the policies needs to consider the distance of the Land from the Yarra River corridor, the height and mass of the proposed building and the extent to which it may be seen from the Yarra River corridor.
5. Our assessment therefore considers both policies in the context of the specific proposal before us. In particular we give consideration to the following policy elements as relevant to our consideration of a proposed building near the river corridor and therefore may impact on the river corridor.
6. The objective of clause 12.03-1S is to protect and enhance waterway systems including river and riparian corridors, waterways, lakes, wetlands and billabongs. It includes relevant strategies to:
   • Sensitively design and site development to maintain and enhance the waterway system and the surrounding landscape setting, environmental assets, and ecological and hydrological systems.
   • Design and site development to maintain and enhance the natural environment of waterway systems by:
     • Minimising the visual intrusion of development on the natural landscape views from major roads, bridge crossings, public open space, recreation trails and within waterway systems themselves.
     • Ensuring development is visually subordinate to the local landscape setting, including through the use of vegetation to filter views of development.
     • Ensuring development adjacent to waterways adopts high quality materials and respectful design and siting.
7. The State policy includes policy guidance to locate buildings at least 30 metres from the banks of waterway systems. The proposed building meets this policy with the site at least 80 metres from the bank of the river.
8. The objective of clause 12.03-1R is to maintain and enhance the natural landscape character of the Yarra River corridor. It includes relevant strategies to:
   • Promote a sense of place and landscape identity by:
     • Ensuring that the appearance of development is subordinate to the local landscape setting, with any views of development being filtered through vegetation.
   • Ensure that development is designed and sited to maintain and enhance the river's secluded and natural environment by:
     • Minimising the visual intrusion of development when viewed from major roads, bridge crossings, public open space, recreation trails and the river itself.
     • Ensuring that the siting and design of buildings avoids conflicting with the local natural landscape and environmental character.
     • Ensuring building height is below the natural tree canopy and all development is set back a minimum of 30 metres from the banks of the river.
9. There is also local policy at clause 12.03-1L. It has an objective to recognise the strategic importance of the Yarra River, and Darebin and Merri Creek corridors as multi-functional open spaces and protecting and enhancing their environments. Relevantly, the policy includes direction to:
   • Minimise the visual intrusion of development when viewed from the waterway corridors and adjacent public open space, bicycle and shared paths and bridge crossings.

1. Clause 02.01-8 provides context to the MPS, setting out that the municipality has undergone substantial change in recent decades, transitioning from a location for manufacturing to a more diverse economy. Clause 02.01-8 then identifies a range of 'employment areas' including 'employment land', described as:

Commercial and industrial land outside of activity centres and major employment precincts, such as CUB in Abbotsford and Botanicca Corporate Park in Richmond as shown in clause 02.04 (Strategic Framework Plan). These areas support employment uses on individual sites or within broader precincts, where employment uses have been maintained through commercial or industrial zoning.

1. Economic development strategic direction at clause 02.03-6 includes directions to 'preserve and grow Yarra's employment areas (as identified in clause 02.01) by supporting the:
   • Growth of health and education related employment and services in health and education precincts as shown in clause 02.04 (Strategic Framework Plan).

• Employment land in the industrial and commercial land shown in clause 02.04 (Strategic Framework Plan).

1. The strategic direction goes on to state there is a need to 'minimise pressures for residential conversion of employment precincts' and a need to 'maintain an adequate supply of employment land to accommodate projected economic and employment growth that meets the diversity of business needs'.
2. Clause 17.03-1S - Industrial land supply has an objective to ensure availability of land for industry. It includes strategy to protect and carefully plan existing industrial areas to, where possible, facilitate further industrial development. The strategy also seeks to preserve locally significant industrial land for industrial or employment generating uses, unless long-term demand for these uses can be demonstrably met elsewhere.
3. Clause 17.03-3R - Regionally significant industrial land - Metropolitan Melbourne - Inner Metro Region, was also introduced through Amendment VC215 in March 2023. This policy includes a strategy to 'support the transition of industrial land along the Yarra River in Abbotsford from traditional manufacturing, to a range of other employment generating uses'.

1. Clause 02.01-6 identifies that 'the existing scale of development within the municipality is mostly characterised by low to mid-rise buildings, with some taller buildings within these areas'. It then states:

In parts of Yarra, there is a strong composition of mid-rise and some taller buildings, notably concentrated in pockets within activity centres, along main roads and in areas transitioning from industrial to commercial or mixed uses. These mid-rise and taller buildings comprise modern apartments and offices.

1. Strategic direction at clause 02.03-4 then includes a direction to:

Reinforce Yarra's low-rise neighbourhoods by directing mid-rise buildings to appropriate locations, within major and neighbourhood activity centres, employment areas (as identified in clause 02.01), major regeneration areas (as shown on the Strategic Framework Plan in clause 02.04), and along boulevards (Hoddle St, Alexandra Parade, Victoria Parade and the south end of Queens Parade).

1. As set out above, the employment areas set out in clause 02.01-8 include commercial and industrial land outside of activity centres 'and major employment precincts' as shown in clause 02.04.
2. The Council submits that this policy directs that 'mid-rise' buildings are appropriate in employment areas, when reading this direction against clauses 02.01-8 and 02.04.
3. The Respondents disagree with this position, relying on the context description in 02.01-8 that states:

Employment land: Commercial and industrial land outside of activity centres and major employment precincts, such as CUB in Abbotsford and Botanicca Corporate Park in Richmond as shown in clause 02.04 (Strategic Framework Plan). These areas support employment uses on individual sites or within broader precincts, where employment uses have been maintained through commercial or industrial zoning.[21]

1. The Respondents state that the reference to 'such as' in this description confines the employment land to Abbotsford and Botanicca Corporate Park in Richmond.
2. We agree that the built form policy could be clearer, with a reader directed to clause 02.01-8 and then to 02.04 to understand where 'mid-rise' may be expected for the purposes of both clause 02.03-4 and 15.01-2L, that we discuss further below.
3. However, we concur with the Council's reading of the strategic directions, that employment land includes all commercial and industrial land outside of activity centres and major employment precincts. This is land as described in clause 02.01-8 as land maintained through commercial or industrial zoning. It includes larger sites 'such as' CUB, but the description in clause 02.01-8 is not limited to only these specific sites. The strategic direction plan at 02.04 makes no such distinction. It only identifies what is commercial and industrial land.
4. We have extracted a part of the strategic framework plan in clause 02.04 below, along with the relevant part of the legend to this diagram. We have marked the approximate location of the Land with a blue dot. We note that the strategic framework plan does not identify the CUB site, that is within the industrial land area to the south-east of the Land.

Figure 10 - Extract of Strategic Framework Plan at clause 02.04.

1. The MPS sets out direction for the built environment at clause 02.03-4. This seeks to manage development and growth in the municipality so as to maintain and enhance the unique character of the city with strategies to:
   • Reinforce Yarra's low-rise neighbourhoods by directing mid-rise buildings to appropriate locations, within major and neighbourhood activity centres, employment areas (as identified in clause 02.01), major regeneration areas (as shown on the Strategic Framework Plan in clause 02.04), and along boulevards (Hoddle St, Alexandra Parade, Victoria Parade and the south end of Queens Parade).
   • Ensure mid-rise buildings are in accordance with any building height requirements set out in the relevant zone or overlay, or where there are no building height requirements specified, having regard to the physical and strategic context of the site.[22]
2. Urban design and built form policy at clause 15.01 includes state, regional and local policy that reflects elements of the MPS. This includes:
   • Urban design strategy at clause 15.01-1S to:
     • require development to respond to its context in terms of character, cultural identity, natural features, surrounding landscape and climate;
     • ensure the interface between public and private realm protects and enhances personal safety; and
     • ensure that development provides landscaping that supports the amenity, attractiveness and safety of the public realm.
   • Building design strategy at clause 15.01-2S that reinforces the urban design strategies and also include strategy to:
     • Ensure development responds and contributes to the strategic and cultural context of its location.
   • Minimise the detrimental impact of development on neighbouring properties, the public realm and the natural environment
     • Improve the energy performance of buildings through siting and design measures that include encouraging passive design responses that minimise the need for heating, cooling and lighting.
   • Local building design policies at clause 15.01-2L that include:
     • Building form strategies that reflect the state and regional directions for site responsive design.
     • Building height policy that sets out that development reflect low rise character except in the areas set out in the policy 'where mid-rise should be directed'. The policy then identifies areas where mid-rise 'should be directed' as including 'employment, commercial and industrial areas as defined in clauses 02.01 and 11.03-1L'.
     • Supports mid-rise development that:
       • Contributes to a high-quality built form.
       • Demonstrates architectural design excellence.
       • Provides a transitional scale to the buildings in adjoining low-rise neighbourhoods to protect amenity and discourage visual bulk.
       • Improves movement through the site.
       • Provides active frontages at street level.
       • Contributes to an improved public realm.
3. As we have set out in our reading of clause 02.01, we agree with the Council's position that the site is in an employment area and therefore a location where mid-rise development is directed. Parties then had differing views as to what might constitute mid-rise development.
4. At the hearing, we were referred to comments of the Panel to Amendment C269yar about what might constitute mid-rise development. It is perhaps ironic that this Panel report includes commentary that it heard submissions from resident groups that 'without clear definitions of what mid-rise means then the term would lead to confusion and increased conflict at VCAT.'[23]
5. The Panel went on to comment that it appreciated the concerns of submitters seeking more certainty but considered it 'is important to remember that the policies are not height controls. The Panel agrees with Council that the metric of the height and whether it is mandatory or discretionary should be found in the applicable zoning or overlay provisions'[24]. The Panel also commented that the MPS recognises that mid-rise and some taller buildings are found in various locations, as set out in clause 02.01.
6. The Panel concluded that the terms low-rise, mid-rise and high-rise are relative rather than prescriptive. It also concluded that 'the term 'mid-rise' may include a range of heights appropriate to the to the physical and strategic context of the location and this is in accordance with good site responsive built form planning'[25].
7. Mr Crowder's planning evidence is that mid-rise is at least four or more storeys, given that low rise residential development of the Neighbourhood and General Residential Zones refer to two and three storeys as being low rise. Both his and Ms Bell's evidence was that in general terms mid-rise could be considered to be five to 12 or 15 storeys.
8. Given the provisions of the Scheme, in context of the Panel report, our finding is that the proposal at seven to eight storeys is within the realm of what can be considered mid-rise where there is no overlay or zone provision applying to the Land that directs a more specific numeric to define 'mid-rise'. Whether the specific use, building height and mass are appropriate to this specific site context are questions of merit we address below.

1. The Respondents include a number of residents from Marine Parade and other residential streets to the north. The use of an office requires a permit in the IN3Z. Mr Pertile submits that the intensity of the proposed use across the sevens storeys of office is inconsistent with the zone. He submits that at this intensity it is no longer associated with industry as is the purpose of the zone and inconsistent with State policy at clause 17.03-1S to protect and facilitate use of industrial land for industrial purposes.
2. Mr Pertile also submits that the Council's policy 'suggests' that the site is part of an area that should remain industrial, pending strategic work to guide renewal.
3. Mr Martin and Ms Robson submit that the area is working well in its existing condition with modest warehouse and industrial uses south of Marine Parade. They see little justification to change that. They submit that if an office is permitted, its hours of operation should be limited to address amenity issues. We discuss the specific potential amenity impacts later in our reasons.
4. The Council submission acknowledges that the creation of new office floor space enjoys policy support due to its inner city location with proximity to activity centres, shops and services, and public transport routes. The Council also acknowledges that the strategic framework plan at clause 02.04 of the Scheme identifies the Land as industrial land 'which is where growth in employment is encouraged at clause 02.03-6'. To this extent the Council is generally supportive of the proposed office use, and comments that this was also the finding of the Tribunal in Shouman.
5. Mr Crowder's planning evidence also comments that the Scheme now includes clause 17.03-3R that has a specific strategy to 'support the transition of industrial land along the Yarra River in Abbotsford from traditional manufacturing, to a range of other employment generating uses.'
6. The Applicant submits that office use is one of the most benign uses in the IN3Z, generally generating limited safety and amenity impacts on adjacent, more sensitive land uses. Therefore the Applicant submits that the proposal is consistent with the purpose of the IN3Z.
7. One of the purposes of the IN3Z is to provide a buffer between IN1Z and local communities, 'which allows for industries and associated uses compatible with the nearby community.' The IN3Z on the site provides an interface between IN1Z to the south and the residential land to the north. In this context we are satisfied that office use of the Land is a compatible 'buffer' between IN1Z land to the south and residential use to the north.
8. We see no need for the Land to retain an industrial use, in-situ, pending a potential future renewal study. There is no direction in the Scheme to support this. The Scheme supports use of employment land for industry and associated uses and encourages transition of industrial land away from traditional manufacturing. As such we find an office is an appropriate use for this site, subject to it addressing relevant potential amenity issues, as we address separately below.

DOES THE PROPOSED BUILDING PROVIDE A SUITABLE TRANSITION TO THE RESIDENTIAL AREA NORTH OF MARINE PARADE?

1. The proposed building needs to address its immediate context, as a basic premise of the provisions of the IN3Z and relevant policy at clause 15.01 as well as the MPS. Relevant to the immediate context, this includes the surrounding IN3Z either side of the site, IN1Z land to the direct south of the site and NRZ1 land north of Marine Parade.
2. In Shouman the Tribunal commented about the interface of that proposal to Marine Parade and neighbouring streets as follows:

[166] I consider that the street wall height in Marine Parade and the architectural expression of the front façade more generally is acceptable in front-on views from the street and private domain. > > [167] In oblique views, particularly from the west, I find that the height, scale and mass of the building of nearly 30m will have an unacceptably dominating visual impact that would not be suitably mediated by the width of Marine Parade. > > [168] This proposal's visual reach would be experienced in the surrounding residential street network to the north in a way that would be uncharacteristic and jarring in this particular setting. This area is also within the NRZ1 where a finer grain, low scale urban form predominates. > > [169] From the SPOS to the east side of the dwelling at No. 40 Marine Parade, I expect that existing vegetation in this space will offer a suitable level of softening and screening of the built form for this particular context at an interface with land in the IN3Z.

3. The main issues and concerns of both the Council and the Respondents is that the proposed building's interaction to the north, notably whether the building design provides an appropriate transition to the NRZ1 land.

1. The Council submits that while it supports an office use of the Land, it does not mean 'anything goes'. It submits that there needs to be a balance of considering the height in circumstances where the prevailing built form of this area is characterised by two storey residential dwellings and two and three storey commercial buildings. This is particularly noting the 'interface with low-rise, fine grain residential properties along the northern side of Marine Parade, and the resulting visual impacts on those residential properties'.
2. While the Council acknowledges the site is one where mid-rise development is directed, it considers the proposed building does not respond to the new built form guidance at clause 15.01-2L relating to mid-rise development. The Council submits that the proposed building fails to provide a transitional scale to the buildings in the adjoining low-rise neighbourhood to protect amenity and discourage visual bulk.
3. The Council is also not satisfied that the increased building setbacks at sixth floor and deletion of the roof terrace from the building in Shouman materially reduces the building bulk within Marine Parade or in longer range view lines from the north. As such the Council submits the proposal has not addressed the Tribunal's concerns expressed in Shouman.
4. The Council further submits that little to no weight should be given to the previous Tribunal approval for a seven storey building at 1E Marine Parade. This permit has since lapsed and the policy context, notably through Amendment C269yar, has changed.
5. Given the existing lower rise buildings, the Council submits that in oblique views, the proposal will visually dominate the lower built form along Marine Parade and the surrounding residential street network to the north. The Council submits the proposal would continue to be 'uncharacteristic and jarring in this particular setting' as noted by the Tribunal in Shouman.[26]
6. Orally the Council expanded on its position about scale and context noting that a number of the properties to the south of Marine Parade and in Harper Street are restricted in height by the DDO1 provisions. As such its position is that the Land has more limited opportunity for development so as to transition to both the residential area to the north and these nearby sites that are affected by DDO1 and SLO1.
7. We also asked the Council about how we should address urban design advice that the Council sought about the proposal from Mr McPherson of Global South.[27] This advice, on the original application plans supports the proposal, particularly as it relates to the interface to Marine Parade and the residential area to the north.
8. The Council advised that this report was one input to the Council officer decision, but ultimately the officers and the Council made a judgement that the interface is not acceptable, for the reasons it set out.

1. The Respondents also oppose the building height and interface to Marine Parade for similar reasons to those set out by the Council. They too refer to the proximity of the site to areas affected by the DDO1 and SLO1 and submit that the proposed building needs to be better transition to the lower permissible form on these sites and in the NRZ1 area.
2. The Respondents submit that while there are a few examples of three storey building in the NRZ1 area, it is by far dominated by one to two storey dwellings. The current NRZ1 provisions restrict future development to no more than two storeys.
3. Mr Pertile submits that establishing a building of the proposed height in a local, non-thoroughfare street is at a scale more appropriate to nearby activity centres that are on the Principal Public Transport Network ('PPTN').
4. As also put by Ms Lucas, 'although the site is outside the DDO, the built form needs to respect the prevailing pattern of heights of the area where this is a positive contribution to neighbourhood character. The proposal is a significant step change, approximately 17m-20m higher in building height from all interfaces with the surrounding neighbourhood.'[28]
5. Mr Martin and Ms Robson more broadly say the Scheme does not direct mid-rise development at this location as it is not a major employment location, or one specifically referred to in clause 02.01. As we have discussed already, our reading of the MPS is consistent with the commentary of the Council that the site is 'employment land' where mid-rise development is directed.
6. Mr Martin also submits that the existing character south of Marine Parade is dominated by lower rise, two storey commercial buildings, many of which have a landscape setback to the street edge that provides a sense of space to the street and accommodate planting.
7. Orally the Respondents submitted that there is no reason to deviate from the previous findings of the Tribunal in Shouman that the proposed development is not compatible with its interface to the north, particularly when viewed in oblique angles.

1. The Applicant's submissions rely on planning evidence of Mr Crowder, urban design evidence of Ms Bell and landscape architecture evidence of Mr Patrick. In doing so, the Applicant comments that although the proposed building will be one of the tallest in the area, its built form adopts a range of techniques to mitigate and articulate the height to achieve a high-quality built form, acceptable in its context.
2. The Applicant also questioned to some extent if the land north of Marine Parade is 'adjoining' for the purposes of interpretating policy at clause 15.01-2L that seeks a transitional scale to adjoining development. Despite this, the Applicant's submission 'agrees that land on the north side of Marine Parade is included in the NRZ, and it is relevant to consider how the proposal responds to this interface.'[29]
3. Compared with the previous proposal, the Applicant submits the current proposal has a reduced building height and greater upper-level setbacks, ensuring that the upper levels will not overwhelm the streetscape or the residential properties along the northern side of Marine Parade.
4. The Applicant relies on urban design evidence of Ms Bell that:
   • The massing of the proposal is broken into two distinct yet complementary elements, with a street wall and upper form which contribute to a contextually responsive massing to Marine Parade. In turn this enables the overall height to be an acceptable response to the streetscape and residential hinterlands to the north, with the proposed height relative to the street width.
   • The reduction in building height as compared to that in Shouman, combined with the increased upper level setback at level 06, ensure the built form is on-balance appreciated as a six storey form, which she assess as an acceptable presentation of scale from the street and front gardens of the properties along Marine Parade.
   • In oblique views from the east and west along Marine Parade, the seventh storey, will read as a recessive cap to the building.
5. Questions put to Ms Bell in cross-examination questioned her written evidence regarding the proposal's visual impact on the surrounding residential street network. Ms Bell acknowledged that the site is not in an activity centre, although her view maintained that this inner city location includes a variety of 'pockets' of residential development, such as north of Marine Parade sitting between areas of employment land and activity centres and that this contrast was part of the existing and evolving urban design context.
6. Mr Crowder's planning evidence is that building height, when viewed in isolation, is a fairly blunt instrument. Rather how a building is designed and massed on a site is equally important. He acknowledged in response to questions that the proposed building will be the first in the immediate area and its east and west sides will be exposed. He is comfortable that the massing of the building ensures that this is an acceptable outcome. This is also noting that the Scheme expects that some further redevelopment of properties south of Marine Parade will occur, with mid-rise development directed to employment land and the industrial area of Abbotsford expected to transition away from industrial uses.
7. The Applicant also referred to the written comments of the Council officer's report that referred to written urban design advice provided by Mr McPherson of Global South. This written urban design advice provided to the Council during the planning permit application process, in summary states:
   • The building height is not excessive or unacceptable.
   • The street wall height is modest and relative to the street width as well as being appropriate to its IN3Z location.
   • The proposed upper level setbacks are acceptable supporting a clear visual distinction and separation between the street wall and upper levels. The development to side boundaries is responsive to its site context.[30]
8. The Applicant also submits the proposed building design has positive attributes through active frontage at street level and improved landscaping across the building.

1. Since Shouman, for reasons we have already set out, in our view the Scheme is now clearer in identifying the site's location in an employment land area where mid-rise development can be contemplated on the Land. In saying this, we agree with the Council that the policy at clause 15.01-2L directs a need for mid-rise development to provide a transitional scale to buildings in the adjoining low-rise neighbourhood to the north.
2. To this extent we disagree with the Applicant's submission[31] that the land to the north, on the opposite side of Marine Parade, is not an 'adjoining low-rise neighbourhood' for the purposes of clause 15.01-2L and its policy that mid-rise development provide a transitional scale to such neighbourhoods in order to protect amenity and discourage visual bulk.
3. For the purposes of this policy, we find that the area on the opposite side of Marine Parade is an 'adjoining' low-rise neighbourhood, notwithstanding that 'adjoining' means[32] 'bordering; contiguous'. Rather, we find that interpreting that word to only mean the property that is immediately contiguous may have the effect of undermining the effect and operation of the policy, given the ramifications of amenity and visual bulk impacts will likely be felt by more than just the immediately bordering properties. In this respect, we are aligned with the broad approach adopted by the Tribunal in QPQ Pty Ltd v Moreland CC,[33] albeit that decision arose in a different factual context. In any event, little turns on this distinction given the Applicant's submission acknowledges a need to address the interface to the north.
4. We also note the Respondents' submissions that the evidence of Ms Bell acknowledged the interface of industrial use to residential use across a street is not something that she would seek if she was planning a new urban area. However, we must address the site in the context in which it sits. This is a complex, inner urban area where historically it has led to an industrial area across the road from a residential one. We understood Ms Bell's evidence to simply acknowledge this historical context. We also note that it is a context that is readily found in many parts of the City of Yarra.
5. Our findings about the lower level of the building presentation are similar to that in Shouman. This is that the three lower levels provide an acceptable level of articulation and softening through the use of the framed elements of the façade, use of landscaping integrating with the building, and the use of a recessed three levels above the three street wall levels. We also concur with Shouman that while part of the secluded private open space of 40 Marine Parade is to its side, and exposed to Marine Parade, it has sufficient capacity to soften and screen itself from the proposed building. The use of the framed, three storey street wall provides an articulated and moderated response suitable to its interface location at the edge of the IN3Z area, facing lower order residential development to the north.
6. We depart from the findings in Shouman about the oblique and broader views of the building for the following reasons:
   • The proposal before us has introduced additional stepping back to the seventh level, removed the upper roof terrace and altered the east and west elevations to moderate the building's presentation on oblique views.
   • The alterations combine with more detailed evidence before us, that was not available to the Tribunal in Shouman. This includes that the Council's own written urban design advice is that the 20 metre road reserve in Marine Parade provides sufficient separation to transition the building form to the low rise, residential land north of Marine Parade.
   • While there is no photomontage from the west, where the Tribunal raised particular concern about oblique views, we are satisfied from our review of the plans and inspection that the amended plans provides a response on oblique view that is acceptable in this context, where mid-rise development is directed.
7. In response to views from the west, the Respondents put to us, and questioned evidence called by the Applicant, as to how the proposal interfaced to properties in the Heritage Overlay - Schedule 313 that applies to land further west and north-west, as depicted in figure 8 above. We agree with comments of Ms Bell and Mr Crowder that this area is sufficiently distant to not be impacted by the development. We are satisfied the building is some distance from the heritage properties and, in any views from the west, the building will not be sitting as an imposing backdrop to the broader area or the area encompassed by the heritage overlay.

Figure 11 - photomontage of building viewed from the east. Green line is outline of building proposed in Shouman.

1. From the east, we were provided a photomontage, as we have included in figure 11 above. The area to which DDO1 applies, with a mandatory 11 metre high building height control, includes properties in the foreground of figure 11, south of Marine Parade, with the pitched roofed properties in the centre of the frame forming the edge of this overlay[34].
2. We are satisfied that there is sufficient transition space between the Land and this DDO1 area. This is regardless of whether future buildings establish in between.
3. Being located south of Marine Parade, the building does not create any issues of shadow to residential properties that are located to the north. With its upper level setbacks, combined with the width of Marine Parade we concur with the urban design evidence of the Applicant, and the urban design advice provided to the Council, that the impact of the building to the north of Marine Parade and the broader residential area is acceptable in its physical and policy context.
4. In the discussion of the presentation of the building façade, and the Applicant's reference to the Council's urban designer comments, there was submission as to whether there is a need to make a minor alteration to the north-east ground floor façade to include a framing element, east of the basement entry ramp, to better align the grid frame provided to the street by the lower three levels of the building.
5. The Applicant suggested this could be addressed by permit condition, although it noted that the comments of the urban designer were 'if possible' and the Council's without prejudice permit conditions did not seek such a condition.
6. Ms Dunstan's traffic evidence is that if a new column was inserted it would need to be set back so as to ensure pedestrian safety sight lines were maintained and that the ramp width was of sufficient width.
7. On reflection after the hearing we are satisfied that the suggested condition is not needed. The addition of a column to the north-east will still result in an irregular pattern as it would need to be stepped in. We are also unclear if it would impact on the design of any future development of the adjoining site to the east, noting this landowner is not a party to the proceeding. We do not see that the façade wall at ground level is 'misaligned' with the pillars at street level. This is also noting the urban design evidence of Ms Bell who is satisfied with the façade.
8. We find the design of the façade is acceptable in the substituted application plans and therefore do not include the suggested change of the Council's urban designer, as offered by the Applicant. We also note that the Tribunal in Shouman did not take issue with the ground floor column arrangement that was similar to the design in the proposal before us.

WILL THE PROPOSAL HAVE AN UNREASONABLE ADVERSE IMPACT ON THE YARRA RIVER CORRIDOR?

1. The Council and Respondents submit the proposal will create an overwhelming and intrusive visual impact on the Yarra River corridor, contrary to the IN3Z provisions to address the physical and cultural context, as well as planning policy to protect the Yarra river corridor.
2. Much of the focus of submission was about the impact of the proposal on views of the Yarra River corridor from Collins Bridge, about 200 metres south-east of the Land. This was because the Tribunal in Shouman identified its 'primary concerns with the proposal's visual impacts in the Yarra River corridor context relate to northerly and north-westerly views from Collins Bridge and from parkland and trails in Andrews Reserve'.
3. Material before us, including photomontages, indicates that views from Andrews Reserve will be very limited. We examine this in more detail below, but note here that the focus of parties submissions was on views from higher vantage points, such as Collins Bridge where there was considerable debate as to whether the building sits above, or between the natural tree canopy of the river and whether this visibility is acceptable.

1. The Council submits that when viewed from the Yarra River, the proposed built form is little different to that refused by the Tribunal in Shouman except for a reduction in overall height by two metres through the deletion of the roof terrace and the sixth floor having greater building setbacks. The Council submits this is not enough to respond to the concerns of the Tribunal in Shouman.
2. The Council comments that in Shouman, the Tribunal observed there is a distinct absence of higher built form above the tree canopy in this part of the Yarra River corridor which is attributable to the consistent and prevailing low scale height of development in this location. The Council submits this continues to be an important contextual characteristic to which development must respond.[35]
3. The Council also submits that it is relevant that in this location, the elevated topography of the land on the eastern side of the Yarra River means that buildings are particularly visible from the hillslopes and ridgelines on the opposite bank, such as at Yarra Boulevard.
4. The Council submits that the building will be 'substantially more visible above the existing trees'. Its written submission is that 'it was the clear intention of the Tribunal in Shouman that any redesign of the building should sufficiently reduce its height to prevent it being visible above the tree canopy line.'[36]
5. The Council also submits the proposal should not rely on vegetation planted on balconies or the roof to make it acceptable.
6. We also note that the urban design advice provided to the Council about the permit application as assessed by the Council was that:

From an Urban Design perspective, there is no policy directive or contextual reference upon which to require non-visibility of built form in the River corridor context. The previous VCAT decision for the review site strongly addressed visibility of the proposed development, on the basis that the site is within the River corridor.

Therefore, based on my assessments above, I do not consider the proposed building height to be excessive or unacceptable from an Urban Design perspective, but I defer to planning considerations for the River corridor, given the limited built form change since the previous proposal, and the visibility of the proposal in some views from the River corridor.[37]

1. The Respondents variously comment that the 2016 Study, that formed the basis of the DDO1 and SLO1 controls, identifies Collins Bridge as a 'Key viewing location'.[38] We have extracted the relevant section of the diagram in which this is located below, in figure 12.

Figure 12 - Extract of 'Key Viewing Locations' - Page 35: Lower Yarra River Corridor Study. Purple bridges are pedestrian bridges. Red are road bridges.

1. We note that the corresponding Section 4.4 - Pedestrian Bridges of the 2016 Study states that Collins Bridge is one of five pedestrian bridges in the study area and that 'these crossing points provide views of the wider river corridor setting within its various suburban, urban and parkland environments.' In respect of the significance of the bridges it sets out:

The pedestrian bridges offer exemplary views of the river from a close-range and elevated perspective. This allows panoramic views of the waterway itself, the riverside parklands or the adjoining built up areas where views through the tree canopy over rooftops are afforded.

The pedestrian bridges can provide a sense of momentary immersion in the naturalistic environment of the river corridor, as a distinctive contrast with the surrounding activity of the study area.

1. The study then comments that planning implications are that 'buildings, structures and fencing must be scaled, sited and designed to respect and enhance the view experience afforded from these pedestrian bridges.'
2. Mr Pertile submits that the Shouman decision commented on the absence of higher built form above the tree canopy as a notable feature in this part of the river corridor, north of Collins Bridge. This is due to the consistent and prevailing low scale height of buildings in this location, a contextual circumstance that is valued and makes a positive contribution to the character of the area.[39]
3. Ms Lucas also submits that the proposal is contrary to policy guidance at clauses 12.03-1S, 12.03-1R and 12.03-1L that call for retaining a dominant and consistent tree canopy along the river corridor. Her submission sets out that this is an important characteristic of state, regional and local importance and protected within the Yarra River Protection (Willip-gin Birrarung murron) Act 2017 (Vic) ('YRP Act') to which she submits the development must respond..
4. Mr Martin and Ms Robson further reiterate that the proposal should not rely on vegetation on the roof or decks to mask its view. They comment that when looking at the photomontage from Collins Bridge the proposed development will be clearly visible above the natural tree canopy located on the banks of the river. They submit that the proposed building comprises two storeys above the canopy and that the development should not be visible above this canopy and therefore reduced in height.

1. The Applicant relies on evidence of Mr Crowder and Ms Bell. Mr Crowder's evidence acknowledges the policies at clause 12.03 and refers to the site being within the 'sphere of influence' of the river and therefore may impact on the river corridor values. The Applicant's submission summarises his evidence that:
   • In this location, there should not be an expectation of 'invisibility'. Rather, building should be designed, sited, and massed in a manner that does not overwhelm the river corridor or detract from its amenity and natural character.
   • There will be no, or very limited views of the proposed building from Andrews Reserve and from this location will not offend the main tree canopy.
   • There will be some visibility of the proposed building at specific locations along Collins Bridge (primarily at its eastern end). However, this is at a substantial distance (about 200 metres) and, while the building will challenge the tree canopy to some extent, the building will not exceed the height of other vegetation that also characterises the tree canopy from this viewing position.
   • The existing experience along Collins Bridge (when heading west) is already characterised by buildings on the west side of the river (directly at the end of the bridge); the bridge is a transient / moving viewing location, and views of the proposed building are on the oblique. The limited visibility of the proposed development will be subordinate to the local landscape setting and substantially filtered by existing vegetation.
   • Nos. 10 and 12 and Harper Street sit between the Land and the nominated position on Collins Bridge (in the montages), and neither of these properties are affected by DDO1 or SLO1. A future development on these sites may further limit any view lines towards the proposed building.
2. Ms Bell's evidence is likewise that the only location where the photomontages from the Yarra River indicate some visibility of the proposed building is from Collins Bridge. Her evidence is that the landscape character experienced from Collins Bridge when looking to the north and north-west is quite varied, consisting of a steep vegetated bank followed by two to three storey attached townhouses that break the ridgeline to the north-west across the river, and tree canopies directly to the north.
3. Her evidence is that the proposal sits below the overall tree canopy. In response to questions on this issue, Ms Bell's evidence was that her consideration of the tree canopy was not simply the trees directly in front of the view line provided in the photomontage view from Collins Bridge but the broader, extended canopy line visible from the bridge.
4. On questions put to Ms Bell about the visual exposure of the building she also commented that, in her view, building would have little visual dominance on the river both due to its limited height and its distance from the river itself. In this context, she also noted that from higher points, such as at Yarra Boulevard, other taller buildings were also visible but did not detract from reading the Yarra River corridor due to their distance from the river.
5. Mr Patrick's landscape evidence is that his proposal for landscaping at upper levels and the roof was, in his view, a positive addition for amenity and sustainable design. His evidence was that he did not see the landscaping proposed was to hide or mask the building in any view.

1. The Applicant provided three different photomontages to address potential impacts on the Yarra River corridor. These included views from the Collins Bridge, Andrews Reserve and the main river trail, being views that were identified in the Shouman decision. To the extent that any of these views are from within the Yarra River corridor (refer to Appendix A), the photomontages from Andrews Reserve and from the pathway forming part of the main river trail, near the Collingwood Children's farm, confirm that the building will either be not seen, or would only be glimpsed through the tree canopy from these parklands along the Yarra River corridor. We find this is important given these areas are public/recreational areas that benefit from a feeling of seclusion. From these lower locations the proposed building is either not seen, or likely to only be seen as a small element filtered through the trees. It will not visually dominate these park setting locations.
2. The key view debated between parties is the potential visual impact of the proposed building when viewed from Collins Bridge, being a 'key viewing' point in the 2016 Study. A photomontage taken from the bridge indicates that the top of the building will be visible from at least parts of this bridge.

Figure 13 - Photomontage from Collins Bridge. Green outline is the previous proposal before the Tribunal in Shouman.

Figure 14 -Image from figure 13, zoomed in to the proposed building.

1. We have extracted this photomontage in figure 13 above, along with a zoomed in extract of the building in figure 14. This closer view identifies that one of the trees sitting to the right of the building appears to be a tree in Harper Street rather than what we consider could be described as the natural tree canopy of the river.
2. In Shouman, no photomontages were provided. The Tribunal undertook a first principles assessment from the material before it, including some view line analysis from Relative Levels ('RLs') provided by Mr Martin, in that proceeding. We note that the Tribunal referred to this in commenting:

[162] Overall, I concur with Mr Martin's analysis and the submissions put by Ms Lucas that the scale of the building will be readily appreciable from this distance. I also agree with Mr Martin's submissions that the proposal's visual impacts can be helpfully understood in relative terms to the surrounding topography. At the eastern termination of Gipps Street where it meets Collins Bridge, the ground level datum is approximately RL15.0m. The proposed height of the building ranges from RL43.1m to RL45.8m at the rear. A building of this scale would present as an unusually high built form aberration above the surrounding valued and naturalistic landscape from at least these two visually sensitive locations in the public realm.

3. We were provided with the view line analysis prepared by Mr Martin for the Shouman proceeding. This relied on relative levels obtainable at the time. We have had the benefit of photomontages prepared by Mr Nugyen, who was called to clarify how he prepared these as evidence. This included him explaining that each of the photomontages were verified using survey points taken at each location, married to surveyed photos and an electronic building model of the proposed building.
4. We are satisfied from Mr Nugyen's explanation of his evidence that the photomontages he prepared can be relied on as an aid in decision making. As Mr Nugyen acknowledged, as two dimensional, photo representations are not as accurate as real life views that can pick up depth perception and peripheral views.
5. While we have found the photomontages helpful, we have not relied solely on them. This is noting that the views are one view from one specific location. In the case of views from Collins Bridge we also acknowledge Mr Nugyen's evidence that this bridge is generally a transitory space where views move and change as a person traverses the bridge. It is possible to stop and stand on this bridge, but here we agree with Mr Crowder that the focus of view is to the river itself, not to buildings above and away from the corridor.
6. To explain this further, we have also included a panoramic photo included in Mr Crowder's evidence of the view looking west, towards Gipps Street, over Collins Bridge. This typifies that the views in the area are not only of a secluded treed area but a transition between a natural environment and the current and former industrial area of Abbotsford.
7. We concur with the comments in Shouman that north of the bridge there are limited views of buildings and a more natural environment exists. However, our finding is that from the bridge the space is not secluded. We also note that the 2016 River Corridor study recognises this industrial context of the river.

Figure 15 - photo viewing west over Collins Bridge - Mr Crowder's evidence statement.

1. We disagree with the Council's reading of Shouman that 'it was the clear intention of the Tribunal in Shouman that any redesign of the building should sufficiently reduce its height to prevent it being visible above the tree canopy line.'[40] The Tribunal's finding was:

[156] I find that the proposed building will be highly exposed above the otherwise uninterrupted tree canopy in this part of the river corridor. With a height approaching 30m at its highest point before reducing to 26.6m at its southern side, I find that this building will be a highly dominant built form element and visually intrusive in a landscape setting otherwise devoid of such built form in northerly and north-westerly views from Collins Bridge.

2. The further conclusions at paragraph 163 of the Shouman decision do not refer to reducing the height to prevent it being visible above the canopy. The Scheme does not direct that a development must be invisible from the bridge. Indeed, there are many buildings visible from Collins Bridge. The question is whether the proposed building will visually dominate the views from the river corridor, so that that the building is not subordinate to the river corridor.
3. We concur with evidence of Ms Bell and Mr Crowder that the building may be visible in a particular view from the Collins Bridge but it is not what we consider is well exceeding the canopy. Nor does policy direct that building need be invisible. The policies refer to buildings being visually subordinate and minimising the visual intrusion.
4. Given the distance of the Land from the Yarra River corridor and the proposed building height and mass we consider the policies in clauses 12.03-1S, 12.03-1R and 12.03-1L of the Scheme, while relevant, have limited weight in our assessment. We say this accepting with the evidence of Ms Bell and Mr Crowder that:
   • the building volume in the proposal before us (including height and upper level setbacks), and
   • the Land's distance from the Yarra River corridor,

enable the proposed building to maintain a subordination to the Yarra River corridor.

1. As such we are satisfied the development does not diminish the values of the Yarra River corridor.
2. We are also satisfied the proposal achieves the objective of clause 12.03-1R to maintain and enhance the natural landscape character of the Yarra River corridor as:
   • The proposal does not remove vegetation or establish building in what we find to be the Yarra River corridor itself.
   • It does not remove any tree canopy of the Yarra River corridor.
   • The views of the development we consider are subordinate to the landscape setting, particularly when viewed from the more secluded parkland areas, such as Andrews Reserve, to the extent that these are within the Yarra River corridor. Where the building will be partly visible, from Collins Bridge we are satisfied this is not visually dominant due to the distance of the Land from the Yarra River corridor, and the height and mass of the building.

DOES THE PROPOSAL RESULT IN ANY UNREASONABLE AMENITY IMPACTS?

1. Mr Martin and Ms Robson submit that the proposal requires permit conditions to manage the use of an office so as to not impact the amenity of dwellings directly north of Marine Parade through noise, light spill and traffic disruption. This is put in context of policy at clause 13.07-1L-01 that addresses amenity conflicts between residential and employment areas.
2. The Tribunal in Shouman commented that it 'would not have refused a permit on the basis of off-site amenity impacts that might arise due to light spill, noise, overlooking and the like. These are capable of management through design techniques or permit conditions.'[41]
3. We agree with these comments in Shouman. The building is set back sufficiently from properties that the usual tests[42] that may be used in a residential setting for overlooking are met. Noise from an office is unlikely to be excessive and Environmental Protection Authority ('EPA') policies and requirements for managing noise in residential areas will need to be met.
4. Waste is to be collected by a vehicle in the basement so the only noise associated with waste collection will be a vehicle entering and leaving, not the collection itself. The waste management plan also requires waste to be collected out of peak traffic times so as to avoid conflicts of trucks in the street network at congested times.
5. On the issue of light spill, we asked the Council if it had applied permit conditions that addressed such issues. With leave of the Tribunal to file further information on this matter the Council advised by letter dated 17 September 2024 that it proposed the following condition be applied, on a without prejudice basis:

All internal lighting within the offices and basement car parking areas on the Subject Land that result in light spill to the public realm or adjoining residential areas must operate on a timer or sensor so that all internal lighting is switched off when those areas are not in use, to the satisfaction of the responsible authority.

1. The permit Applicant provided an email of the same date advising it was not opposed to such a condition being applied.
2. The office is to be located across a public street where there is also public street lighting and other occasional lighting that residents must expect. We therefore find it reasonable that some lighting at night may occur and do not support permit conditions to limit the hours of operation to avoid such lighting. However, we will apply the permit condition provided by the Council that ensures that when the offices are not in use, there is not excessive or unnecessary lighting. This also has environmental benefits.
3. The Respondents also submit that the proposed use should be restricted in its hours of operation on the basis of general amenity impacts through noise, light spill and nuisance to residential properties to the north. We find no specific need to include such a condition. The use is generally a low impact use in respect of noise and general activity. Again general EPA policies and requirements will need to be met by the owners and occupants of the office building. This is nothing unusual in the use of an office in an IN3Z area, even opposite residential land that leads us to a conclusion that the hours of use should be limited.
4. For similar reasons we have not restricted the hours for deliveries to the office as sought by the Respondents beyond the conditions proposed by the Council that were not contested by the Applicant. We also note that even in residential areas deliveries occur in the evening and early morning, such as the delivery of online supermarket or other retail orders.
5. We have adjusted the condition about construction hours to include the delivery of materials and equipment as sought by Mr Martin and Ms Robson. This is a reasonable request in the context of the site's location and that the delivery of construction equipment is of a different scale to general deliveries that would be expected to the office once completed and in use.

DOES THE PROPOSAL PROVIDE APPROPRIATE ON-SITE CAR PARKING AND BICYCLE PARKING?

[171] I accept Ms Dunstan's evidence as to the acceptability of car parking, traffic volumes, access arrangements and queuing. > > [172] However I have considerable reservations about the acceptability of the access arrangements to bicycle parking areas that are located inside the building. This is due to the large number of bicycles proposed to be accommodated (78) and the shared reliance on either the main vehicle access ramp or the sole lift serving the entire building from within the ground level foyer.

2. The Council is satisfied with the car parking provided on the site, other than for some minor circulation matters that can be addressed by permit condition. The Council maintains that a lift should be provided for bicycle access to and from the basement.
3. Mr Martin submits that he remains concerned about the reduced parking and the impact on on-street parking as well as traffic from the proposal. This is noting that the amended plans did not have an updated traffic report.
4. The Applicant, relying on traffic engineering evidence of Ms Dunstan submits that the Land is located within the PPTN and therefore has a statutory parking demand of 111 spaces, based on the car parking rate of 3 spaces to each 100 square metres of net floor area. A total of 37 car parking spaces are provided on site, resulting in a shortfall of 74 car spaces. The Applicant acknowledges that a permit is required to reduce the car parking requirement.
5. The Council acknowledges that this site is suitable for a lower car parking provision than the standard set by the Scheme. The council is not opposed to the lower provision of car parking, as proposed, being provided on this site. In Shouman the Tribunal did not oppose a reduced parking provision in that proposal that equated to approximately 1.2 spaces per 100 square metres of floor area.[43]
6. We are satisfied from the evidence of Ms Dunstan that the reduced provision of vehicle car parking on the site is acceptable. We are familiar with the parking suppression policies of the Council to encourage employees to use alternative means of transport than vehicles, so as to manage traffic congestion in the area. Ms Dunstan commented in oral presentation of her evidence that the provision of car parking at a rate of approximately 1 space per 100 square metres of office space is not uncommon in the City of Yarra. We are familiar from other proceedings where similar parking rates have been discussed that such a rate is not unusual.[44]
7. The proposal exceeds the number of bicycle parking spaces provided on the site. The issue in contention is whether the location of the 78 bicycle spaces in the basement requires a separate lift for bicycle users rather than either using the pedestrian lift, or attempting to use the vehicle ramp.
8. Ms Dunstan acknowledges that the vehicle ramp, at a 1:4.15 grade is sufficiently steep that most cyclists would not ride up the ramp. Rather they would either walk their bicycle up the ramp, or use the pedestrian lift to get to the ground level. Her evidence was that either scenario is acceptable.
9. Her evidence is that a second bicycle specific lift is unnecessary as the lift traffic would generally be in the opposite direction to pedestrian use and the conflict between different users would be minimal.
10. The Council officer report that assessed the current proposal included comments from the Council's traffic engineers that did not oppose the location of the bicycle parking. The officer report simply comments that to address the concerns of the Tribunal in Shouman, an additional bicycle lift could be imposed.
11. As a proposal that relies on good cycling access, with 78 bicycle spaces in the basement we concur with the findings in Shouman that better access should be provided rather than relying on the main pedestrian lift. We therefore will impose a permit condition that a second lift between the ground and first level basement be included for better cycle access.

1. Parties also drew our attention to the YRP Act and the associated Yarra Strategic Plan 2022.
2. Whether these documents relate to the decision to be made in the matter before us is addressed in Appendix A by Member Whitney with explanatory information at Appendices B and C.

1. For the reasons given above, the decision of the responsible authority is set aside. A permit is granted subject to conditions set out in Appendix D. The conditions include matters addressed in our reasons above. We also note that:
   • We have modified the format of the 'without prejudice' proposed planning permit conditions to conform with the changes to the format of a planning permit made through the Planning and Environment Regulations 2015 (Vic).
   • We have retained the need for a green travel plan. While we appreciate the concern raised by the Applicant as to the real value of such plans, we accept the council policies toward sustainable travel that support the need for the condition.
   • We have not amended the expiry dates to three years to start and five years to complete as sought by the Applicant. The expiry condition is a conventional period as set out in the guidelines for permit conditions[45] and there are no obvious reasons to defer from the standard condition sought by the Council.
   • We have not included a permit condition for the Applicant to plant a new street tree in front of the proposed building, in the road reserve as sought by the Respondents. We are not opposed to this occurring but it is a matter for the Council to consider as owner of the land where a new street tree could occur.

Whether clauses 12.03-1S and 12.03-1R of the Yarra Planning Scheme are relevant to the assessment of a proposal when overlay controls for the protection of the Yarra River corridor do not apply to land affected by the proposal, and if so, the weight to be given to these clauses.

1. This question was answered by Member Whitney, being an Australian lawyer for the purposes of section 107(1) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic), the opinion of whom Senior Member Glynn concurs.
2. This question requires an analysis of clauses 12.03-1S and 12.03-1R of the Yarra Planning Scheme ('Scheme') in the context of the overlay controls referenced in the question, being the Design and Development Overlay - Schedule 1 'Yarra (Birrarung) River corridor' ('DDO1') and the Significant Landscape Overlay - Schedule 1 'Yarra (Birrarung) River Corridor environs' ('SLO1'). It also requires consideration of the planning permissions that are before the Tribunal for determination in this proceeding, being the use permission for office under the Industrial 3 Zone ('IN3Z'), the buildings and works permission under the IN3Z and the reduction in car parking sought under clause 52.06 of the Scheme.
3. This question comprises both questions of law and a question of fact:
   1. the meaning of the terms 'river corridor' ('river corridor') and 'Yarra River corridor' ('Yarra River corridor') as used in clauses 12.03-1S and 12.03-1R of the Scheme, respectively, are questions of law;
   2. whether the Land is within either the Yarra River corridor or a river corridor for the purposes of clauses 12.03-1S and 12.03-1R of the Scheme, is a question of fact; and
   3. whether clauses 12.03-1S and 12.03-1R of the Scheme are relevant to the permissions before us in this proceeding, is a question of law.
4. My answer to these three questions is arranged in the following sections, as follows:

1. Broad comments regarding Shouman Pty; 2. Provisions of the Scheme: 1. Overview; 2. Clause 12.03: river corridor planning policies: 1. Overview; 2. Clause 12.03-1S; 3. Clause 12.03-1R; 4. Clause 12.03-1L; 3. DDO1: Yarra (Birrarung) River Corridor; 4. SLO1: Yarra (Birrarung) River Corridor Environs; 5. IN3Z; 6. Clause 52.06 'Carparking';

1. Parties' submissions: 1. Applicant; 2. Council; 3. Respondents;

1. Tribunal's answer: 1. What do the terms river corridor and Yarra River corridor mean for the purposes of clauses 12.03-1S and 12.03-1R, respectively? 1. Statutory interpretation of subordinate legislation; 2. Why the 2016 Study does not define the terms Yarra River corridor and river corridor: * Overview; * What is the 2016 Study? * 2016 Study is a policy document and is not part of the Scheme; * 2016 Study does not define the river corridor or the Yarra River corridor; 3. Neither the DDO1 nor the SLO1 define the Yarra River corridor; 4. Conclusion;

1. Is the Land within the Yarra River corridor or a river corridor? 2. Are clauses 12.03-1S and 12.03-1R of the Scheme relevant to the permissions in this proceeding? 1. Summary; 2. Clauses 12.03-1S and 12.03-1R do not only apply to the Yarra River corridor or a river corridor; 3. Clauses 12.03-1S and 12.03-1R are relevant to the permissions sought under the IN3Z; 4. Clauses 12.03-1S and 12.03-1R are not relevant to the permission sought under clause 52.06; 5. Clauses 12.03-1S and 12.03-1R do not only apply to the DDO1 and the SLO1; 3. Relevance of the YRP Act and Yarra Strategic Plan; 4. Summary of Tribunal's findings; and

1. My answer to these three questions is:
   1. The terms river corridor and Yarra River corridor for the purposes of clauses 12.03-1S and 12.03-1R of the Scheme, respectively, mean:

river corridor means the land over which the waters of a river flow and the river banks on either side of the main channel that rise to the crestline at which the topography flattens to that of the adjacent land; and

Yarra River corridor means the land over which the waters of the Yarra River flow and the river banks on either side of the main channel that rise to the crestline at which the topography flattens to that of the adjacent land;

1. The Land is not within either the Yarra River corridor or a river corridor; and
2. Clauses 12.03-1S and 12.03-1R of the Scheme are relevant to the permissions sought under the IN3Z that are before us in this proceeding.

1. Accordingly, my answer to the question posed by the Applicant is:

Clauses 12.03-1S and 12.03-1R of the Yarra Planning Scheme (Scheme) are relevant to the assessment of the proposal the subject of this proceeding even though the Land is not within the Design and Development Overlay - Schedule 1 (DDO1) or the Significant Landscape Overlay - Schedule 1 (SLO1). This is because clauses 12.03-1S and 12.03-1R of the Scheme are relevant to the permissions sought under the Industrial 3 Zone (IN3Z). The weight to be given to clauses 12.03-1S and 12.03-1R of the Scheme is influenced by the facts and circumstances of the case, which include the distance of the Land from the Yarra River corridor, the height and mass of the proposed development, and the extent to which the proposed development is expected to be visible from the Yarra River corridor.

1. This proceeding constitutes a repeat appeal of the permit application that was considered in Shouman Pty Ltd v Yarra CC[46] ('Shouman').
2. The Tribunal in Shouman found that the Land is within the Yarra River corridor. In Shouman, the Tribunal's reasoning for its finding, along with its other findings, are contained in the section of Shouman entitled 'The Yarra River corridor' that is at paragraphs [67] to [119] of Shouman. For completeness, I extract these paragraphs at Appendix B to this decision.
3. In Shouman the Tribunal concluded that it was appropriate to give 'considerable weight' to the policies at clauses 12.03-1S and 12.03-1R of the Scheme.[47]
4. At the outset, I acknowledge the extensive detail contained in Shouman regarding the history of strategic planning for the Yarra River corridor. That information has allowed me to begin my analysis from a more advanced point than if that earlier work had not been done. As such, in a sense I regard my decision to represent an evolution and refinement of the thinking in this space.
5. I also recognise that in Shouman the issue of the relevance of clauses 12.03‑1S and 12.03-1R of the Scheme appears to have been raised by the Respondents (objectors) to that case in circumstances where:
   1. the Council had not raised the issue in its grounds of refusal, and where, following the Applicant's circulation of amended plans, the Council changed its position to support the proposal; and
   2. the Applicant agreed that clauses 12.03-1S and 12.03-1R of the Scheme were relevant considerations, albeit with the caveat that the Council also gave that the policies 'have limited relevance, should not be given significant weight and 'must be approached with caution''.[48]
6. These two factors mean that Shouman was conducted in a different context than the case before us, given that in our proceeding:
   1. one of the Council's two grounds of refusal directly addresses clauses 12.03-1S and 12.03-1R of the Scheme; and
   2. the Applicant's primary contention in the question of mixed law and fact is that clauses 12.03-1S and 12.03-1R of the Scheme are not relevant to the proposal at all.
7. I also recognise that in Shouman the Tribunal was not asked to answer a question of law. Rather, in Shouman, following submissions being made by the Respondents, the Tribunal invited further written submissions from the Applicant and then the other parties as to the relevance and weight to be given to clauses 12.03-1S and 12.03-1R of the Scheme, which the Tribunal then considered.[49]
8. By contrast, in the present case the parties have addressed the question of law in submissions pre-filed prior to the hearing and then having the parties before us to answer questions.
9. Ultimately, I have found that in this case, clauses 12.03-1S and 12.03-1R of the Scheme are relevant to our assessment of the proposal and to this extent, I am aligned with the conclusion in Shouman. However, I differ from Shouman in that I do not regard the Land to be within the Yarra River corridor, or any river corridor. As to the question of the weight to give these policies, that is related to the merits and depends on the facts and circumstances of the case.

1. The question of mixed law and fact refers to clauses 12.03-1S and 12.03-1R of the Scheme.
2. Below, I extract the current versions of 12.03-1S and 12.03-1R of the Scheme, noting that we were taken to historical versions which are discussed later.
3. Following this, I address the DDO1 and the SLO1. While it is common ground that neither the DDO1 nor the SLO1 applies to the Land, I address these provisions given the nature of the subject matter of each of those provisions and also because the Applicant relies on those provisions in addressing the question it posed. I also extract parts of each of these in Appendix C to this decision.
4. Finally, I address the IN3Z and clause 52.06 as these are the permit triggers under which planning permission is sought.
5. I note that clause 65 is also relevant to the assessment of this proposal, given it is required to be considered 'as appropriate' before deciding on an application.[50]

Clause 12.03: river corridor planning policies

1. Clauses 12.03-1S, 12.03-1R and 12.03-1L are the policies in the Scheme that address river corridors, and specifically for the purpose of this proceeding, the Yarra River corridor.
2. These three clauses are contained in clause 12.03 'Water bodies and wetlands'.
3. Neither the term Yarra River corridor nor river corridor are defined in section 3 of the Act or in clause 73 of the Scheme.
4. The parties differed in how they say the terms Yarra River corridor and river corridor are defined, which I address below.

1. Clause 12.03-1S 'River and riparian corridors, waterways, lakes, wetlands and billabongs' is State policy that has the objective to protect and enhance waterway systems including river and riparian corridors, waterways, lakes, wetlands and billabongs. This policy is as follows.

1. Clause 12.03-1R 'Yarra River protection' is regional policy that applies to certain, specified municipalities through which the Yarra River runs. The policy's objective is to maintain and enhance the natural landscape character of the Yarra River corridor. This policy is as follows.

1. The related local policy is clause 12.03-1L 'Yarra River, Darebin and Merri Creek corridors'. This policy has as its objective to recognise the strategic importance of the Yarra River and Darebin and Merri Creek corridors as multi-functional open spaces and to protect and enhance their environments. This policy is as follows.

1. The DDO head clause, clause 43.02 of the Scheme, provides that its purposes are:

To implement the Municipal Planning Strategy and the Planning Policy Framework.

To identify areas which are affected by specific requirements relating to the design and built form of new development.

1. The DDO head clause provides that a schedule must contain a statement of the design objectives to be achieved for the area affected by the Schedule.[51]
2. Schedule 1 to the DDO identifies the design objectives as follows:

To ensure new buildings, tennis courts, swimming pools and other structures are appropriately set back from the banks of the Yarra River and adjacent public open space.

To ensure buildings are presented at a variety of heights, avoid visual bulk, are stepped back from the frontage of the Yarra River and adjacent public open space and use colours and finishes which do not contrast with the natural landscape setting.

To avoid additional light spill and overshadowing from buildings on the banks and water of the Yarra River, its adjacent public open space, pedestrian and bicycle paths.

To ensure sufficient space is provided between buildings to maintain views to the Yarra River and allow for the planting and growth of vegetation, including large canopy trees.

To minimise impervious surfaces to allow for the filtration of water and retention and establishment of vegetation and canopy trees.

1. The DDO1 applies to land proximate to the Land, as follows.[52]

Figure 1 - extracts of the DDO1 proximate to the Land

1. The Land is shown relative to the DDO1-D as follows.[53]

1. The DDO head clause provides that a permit is required to construct a building but that this does not apply if a schedule to the DDO specifically states that a permit is not required.[54]
2. Schedule 1 to the DDO specifies requirements that can and cannot be varied by a planning permit. These are as follows:

Requirements that cannot be varied by a planning permit

The following requirements must be met:

• Buildings and works must not cast any additional shadow across the Setback Reference Line (the closest parallel property boundary aligned to the banks of the waterway) between 11:00am and 2:00pm on 22 June.
• New buildings must not exceed the maximum building height specified in the applicable table to this schedule. A building may exceed the maximum building height by up to 1 metre if the slope of the ground level, measured at any cross section of the site of the building wider than 8 metres, is greater than 2.5 degrees.
• New buildings (including basements and projections) must be set back from the Setback Reference Line (the closest parallel property boundary aligned to the banks of the waterway) the minimum distance specified in the applicable table to this schedule.
• The complete or partial replacement of an existing building within the minimum setback distance specified in the applicable table to this schedule (as measured from the Setback Reference Line, being the closest parallel property boundary aligned to the banks of the waterway) must not:
  • Exceed the maximum building height specified in the applicable table to this schedule.
  • Reduce the existing setback of the building from the Yarra River and public open space.
  • Increase the existing gross floor area of the existing building.

Requirements that can be varied by a planning permit

The following requirements should be met:

• Buildings and works should not cast any additional shadow across any public open space between 11:00am and 2:00pm on 22 September.
• Buildings should not exceed the discretionary maximum building height specified in the applicable table to this schedule, except for sloping sites where a building may exceed the maximum building height by up to 1 metre if the slope of the ground level, measured at any cross section of the site of the building wider than 8 metres, is greater than 2.5 degrees.
• Fencing within the minimum setback specified in the applicable table to this schedule (as measured from the Setback Reference Line, being the closest parallel property boundary aligned to the banks of the waterway), should not:
  • Impede the flow of flood waters.
  • Exceed a height of 1.4 metres above ground level.
  • Be less than 25 per cent visually permeable.
  • Use reflective colours and finishes.
• The site area covered by buildings, tennis courts, swimming pools and other impervious surfaces within a Residential Zone or on land used for accommodation should not exceed 40 per cent of the lot area.
• Tennis courts, swimming pools and other outbuildings associated with a dwelling should be set back from the Setback Reference Line (the closest parallel property boundary aligned to the banks of the waterway) the minimum distance specified in the applicable table to this schedule.
• Building materials should utilise non-reflective colours and finishes that blend with the natural landscape

1. The decision guidelines for the head clause require consideration of the following matters:[55]

Before deciding on an application, in addition to the decision guidelines in Clause 65, the responsible authority must consider, as appropriate:

• The Municipal Planning Strategy and the Planning Policy Framework.
• The design objectives of the relevant schedule to this overlay.
• The provisions of any relevant policies and urban design guidelines.
• Whether the bulk, location and appearance of any proposed buildings and works will be in keeping with the character and appearance of adjacent buildings, the streetscape or the area.
• Whether the design, form, layout, proportion and scale of any proposed buildings and works is compatible with the period, style, form, proportion, and scale of any identified heritage places surrounding the site.
• Whether any proposed landscaping or removal of vegetation will be in keeping with the character and appearance of adjacent buildings, the streetscape or the area.
• The layout and appearance of areas set aside for car parking, access and egress, loading and unloading and the location of any proposed off street car parking
• Whether subdivision will result in development which is not in keeping with the character and appearance of adjacent buildings, the streetscape or the area.
• Any other matters specified in a schedule to this overlay.

1. The decision guidelines in Schedule 1 to the DDO are as follows:

Before deciding on an application, the responsible authority must consider:

• The views of Melbourne Water as a recommending referral authority in accordance with section 55 of the Act for all applications within 100 metres of the Yarra River, unless in the opinion of the responsible authority the proposal satisfies requirements or conditions previously agreed to in writing between the responsible authority and Melbourne Water.

Before deciding on an application, the responsible authority must consider as appropriate:

Landscape protection

• The visibility of any proposed buildings and works when viewed from the Yarra River and adjacent public open space, pedestrian and bicycle paths and bridge crossings.
• Whether sufficient space is provided between buildings to maintain views of the Yarra River and allow for the planting and growth of vegetation, including large canopy trees.
• Whether the siting of buildings and works avoids the removal of existing riparian vegetation. Whether any earthworks will affect public views of the river corridor.
• The need for additional landscaping or new vegetation screening to filter views of proposed buildings and works.

• Whether any additional overshadowing of public open space can be avoided by redesigning or relocating a proposed building or parts of it.
• Whether siting of proposed buildings impacts the river's natural flood and watercourse characteristics.
• Whether any proposed garages and outbuildings ancillary to a dwelling are integrated into the overall design to minimise the appearance of built form impacting public views of the river corridor.
• Whether the location, bulk, outline and appearance of any proposed building or works are in keeping with or enhance the natural landscape character and appearance of the Yarra River.
• The appropriateness of proposed materials and finishes for any proposed buildings and works in reducing contrast.

• The need to minimise impervious surfaces to allow for filtration of water and retention and establishment of indigenous vegetation and canopy trees.
• The need to limit areas, (including tennis courts and swimming pools) and other impervious surfaces within the minimum setback distance specified in a table to this schedule to allow for replanting and vegetation growth.
• Whether adequate spacing is provided between buildings to maintain and create views to the Yarra River and its corridor.

SLO1: Yarra (Birrarung) River Corridor Environs

1. The SLO head clause, clause 42.03, identifies the purposes of the SLO as being:

To implement the Municipal Planning Strategy and the Planning Policy Framework.

To identify significant landscapes.

To conserve and enhance the character of significant landscapes.

1. The SLO1 has the following Statement of nature and key elements of landscape:[56]

The Yarra River has metropolitan significance as an environmental, aesthetic, cultural, recreation and tourism asset. The river corridor links parklands and reserves into a near continuous vegetated landscape experience that provides a highly valued, secluded natural environment, enjoyed by local and metropolitan communities.

The Yarra River corridor contains some of the most valued flora, fauna, geological and geomorphological assets in metropolitan Melbourne. Indigenous vegetation and remnant riparian vegetation provide habitat and contribute to the protection of water quality and flow regimes.

This segment of the Yarra River flows through the traditional land of the Wurundjeri Woi Wurrung people. The waterway, its natural landscape and key features have social, cultural and spiritual significance, with areas such as the river flats and billabongs being important gathering spots.

1. The SLO1 identifies the Landscape character objectives to be achieved as follows:[57]

To retain vegetation that contributes to landscape character, heritage values or neighbourhood character.

To maintain and protect linear public open space and provide for secluded areas of public open space with access to the river where appropriate.

To encourage the co-location or clustering of buildings, jetties and mooring facilities on public land.

To encourage bicycle and shared paths that are safe, well located and require minimal earthworks and vegetation removal.

To ensure fencing within close proximity to the Yarra River is low in scale, visually permeable and does not contrast with the natural landscape character.

1. The SLO1 applies to land proximate to the Land, as follows.[58]

Figure 3 - extracts of the SLO1 proximate to the Land

1. The Land is shown relative to the SLO1 as follows.[59]

1. The SLO head clause provides that a permit is required to construct a building but that this does not apply if a schedule to the overlay states that a permit is not required.[60]
2. The SLO1 provides that a permit is not required under the SLO1 to construct a building with a height not exceeding 6 metres above ground level.[61] In this way, the SLO1 controls building height, through:
   1. allowing buildings to be constructed without a permit under the SLO1 provided that they are no higher than 6 metres; and
   2. requiring a permit under the SLO1 for the construction of any building higher than 6 metres.

1. The decision guidelines in the head clause require consideration of the following matters:[62]

Before deciding on an application, in addition to the decision guidelines in Clause 65, the responsible authority must consider, as appropriate:

• The Municipal Planning Strategy and the Planning Policy Framework.
• The statement of the nature and key elements of the landscape and the landscape character objective contained in a schedule to this overlay.
• The conservation and enhancement of the landscape values of the area.
• The need to remove, destroy or lop vegetation to create a defendable space to reduce the risk of bushfire to life and property.
• The impact of the proposed buildings and works on the landscape due to height, bulk, colour, general appearance or the need to remove vegetation.
• The extent to which the buildings and works are designed to enhance or promote the landscape character objectives of the area.
• The impact of buildings and works on significant views.
• Any other matters specified in a schedule to this overlay.

1. The decision guidelines in Schedule 1 to the SLO in terms of the construction of a building are as follows:[63]
   • Whether the location and extent of the buildings or works encroaches into the tree protection zone of mature canopy trees.
   • The ability for proposed vegetation species to be matched to the local plant communities.
   • Whether any proposed earthworks and changes in the topography of the river corridor will detrimentally impact its local natural landscape character and environmental values.
   • Whether the proposed fencing allows for the free movement of wildlife, minimises visual intrusion and limits impact on the natural flood and watercourse characteristics.
   • Whether buildings and works are sufficiently set back from the banks of the Yarra River to ensure that:
     • The river's natural flood and water course characteristics are not impacted.
     • The topography of the river and its banks are maintained as the dominant feature in the public views of the river corridor.
     • The existing riparian vegetation is protected and enhanced.
     • That views of development from the Yarra River and adjacent public open space, bicycle and shared paths and bridge crossings are minimised.
   • The need for litter or gross pollutant traps at entry points to drains that serve large developments known to generate litter and sediment.
   • Whether the design and location of boating infrastructure is consistent with the Melbourne Water's Guidelines for Approval of Jetties ( Melbourne Water, 2011) and with any requirements, plans or guidelines prepared by Parks Victoria or other public land managers.
   • Whether the design and location of shared pathways is consistent with Shared Pathway Guidelines (Melbourne Water, 2009) and with any requirements, plans or guidelines prepared by Parks Victoria or other public land managers.
   • Whether private development results in the loss of, or creates inappropriate access to, the Yarra River and its parklands.
   • Whether opportunities exist to co-locate new buildings with existing buildings on public land, particularly at the banks of the Yarra River.
   • Whether buildings will protrude above the predominant tree canopy within a given area.
   • The impact of any overshadowing by development:
     • on the banks and waterway of the Yarra River between 11:00am and 2:00pm on 22 June; and
     • on any public open space between 11:00am and 2:00pm on 22 September.
   • Whether the scale, form, siting and design of new buildings, including materials, colours and finishes, are sensitively integrated with the natural landscape setting of the river corridor.
   • Whether the spacing between buildings allows for the planting of appropriate vegetation and canopy trees to filter views of the development.
   • Whether the existing and proposed vegetation fronting the Yarra River will filter the majority of views of the proposed development.

To implement the Municipal Planning Strategy and the Planning Policy Framework.

To provide for industries and associated uses in specific areas where special consideration of the nature and impacts of industrial uses is required or to avoid inter-industry conflict.

To provide a buffer between the Industrial 1 Zone or Industrial 2 Zone and local communities, which allows for industries and associated uses compatible with the nearby community.

To allow limited retail opportunities including convenience shops, small scale supermarkets and associated shops in appropriate locations.

To ensure that uses do not affect the safety and amenity of adjacent, more sensitive land uses.

1. Permission is required to construct a building with some exceptions, none of which apply to the proposal.[64]

1. The decision guidelines in the IN3Z for the construction of a building are as follows:

Before deciding on an application, in addition to the decision guidelines in Clause 65, the responsible authority must consider, as appropriate:

• The Municipal Planning Strategy and the Planning Policy Framework.
• Any natural or cultural values on or near the land.
• Streetscape character.
• Built form.
• Landscape treatment.
• Interface with non-industrial areas.
• Parking and site access.
• Loading and service areas.
• Outdoor storage.
• Lighting.
• Stormwater discharge.
• The effect on nearby industries.
• The effect of nearby industries.

1. These are in addition to the decision guidelines in clause 65 of the Scheme.

To ensure that car parking is provided in accordance with the Municipal Planning Strategy and the Planning Policy Framework.

To ensure the provision of an appropriate number of car parking spaces having regard to the demand likely to be generated, the activities on the land and the nature of the locality.

To support sustainable transport alternatives to the motor car.

To promote the efficient use of car parking spaces through the consolidation of car parking facilities.

To ensure that car parking does not adversely affect the amenity of the locality.

To ensure that the design and location of car parking is of a high standard, creates a safe environment for users and enables easy and efficient use.

1. Pursuant to clause 52.06-3 of the Scheme, permission is required to:

Reduce (including reduce to zero) the number of car parking spaces required under Clause 52.06-5 or in a schedule to the Parking Overlay.

Provide some or all of the car parking spaces required under Clause 52.06-5 or in a schedule to the Parking Overlay on another site.

Provide more than the maximum parking provision specified in a schedule to the Parking Overlay

1. The decision guidelines in clause 52.06-10 provide:

Before deciding that a plan prepared under Clause 52.06-8 is satisfactory the responsible authority must consider, as appropriate:

• The role and function of nearby roads and the ease and safety with which vehicles gain access to the site.
• The ease and safety with which vehicles access and circulate within the parking area.
• The provision for pedestrian movement within and around the parking area.
• The provision of parking facilities for cyclists and disabled people.
• The protection and enhancement of the streetscape.
• The provisions of landscaping for screening and shade.
• The measures proposed to enhance the security of people using the parking area particularly at night.
• The amenity of the locality and any increased noise or disturbance to dwellings and the amenity of pedestrians.
• The workability and allocation of spaces of any mechanical parking arrangement.
• The design and construction standards proposed for paving, drainage, line marking, signage, lighting and other relevant matters.
• The type and size of vehicle likely to use the parking area.
• Whether the layout of car parking spaces and access lanes is consistent with the specific standards or an appropriate variation.
• The need for the required car parking spaces to adjoin the premises used by the occupier/s, if the land is used by more than one occupier.
• Whether the layout of car spaces and accessways are consistent with Australian Standards AS2890.1-2004 (off street) and AS2890.6-2009 (disabled).
• The relevant standards of Clauses 56.06-2, 56.06-4, 56.06-5, 56.06-7 and 56.06-8 for residential developments with accessways longer than 60 metres or serving 16 or more dwellings.
• Any other matter specified in a schedule to the Parking Overlay.

1. The Applicant addressed the principles of statutory interpretation as they apply to the interpretation of subordinate legislation, such as the Scheme. In accordance with those principles, the Applicant urged:
   1. the meaning of words is to be taken from the ordinary and grammatical sense of the statutory words to be interpreted, having regard to their context and legislative purpose;[65] and
   2. in relation to Scheme provisions, these should be construed in light of practical considerations, having regard to their use by practical people skilled in a particular industry, with an interpretation that leads to a reasonably practical result being preferred.[66]
2. The Applicant submits that clauses 12.03-1S and 12.03-1R are either not relevant to the assessment of the proposal or alternatively should be given limited weight in the determination of this proceeding.[67]
3. The Applicant makes this submission for the following reasons:

1. In oral submissions, the Applicant:
   1. reinforced that in its view the Yarra River corridor is defined by the DDO1, given that the DDO1 is headed 'Yarra (Birrarung) River Corridor'. That is, the area covered by the DDO1 is the area that is defined to be the Yarra River corridor for the purposes of the policy in clause 12.03-1R;
   2. refers to the 'Lower Yarra River Corridor Study - Recommendations Report (Department of Environment, Land, Water and Planning, 2016)' ('2016 Study') and the 'Lower Yarra River Corridor Study, Yarra Municipal Toolkit November 2016' ('2016 Toolkit'), the latter being the document that sets out proposed planning provisions to implement the findings of the 2016 Study into the Scheme. The Applicant submits that the focus of the 2016 Study and the 2016 Toolkit was the creation of the overlay controls that would manage land in proximity to the Yarra River. The Applicant submits that the Yarra River corridor is not defined by the study area for the 2016 Study as set out in Shouman because that study area was just the area that was investigated in the 2016 Study;
   3. submits that the Yarra River Protection Planning Controls Planning Advisory Note 65[68] ('Advisory Note') supports the proposition that the Yarra River corridor is defined by the DDO1;
   4. submits that to the extent that there are public land areas that are not covered by the DDO1 this does not undermine the DDO1 defining the Yarra River corridor because the Yarra River areas are managed under the Yarra River Protection (Willip-gin Birrarung murron) Act 2017 (Vic) ('YRP Act') and the associated Yarra Strategic Plan 2022, neither of which apply to private land;
   5. acknowledges that based on the wording of the Explanatory Report for GC48, the Yarra River corridor could be a lesser area than the DDO1;
   6. accepts that clause 12.03-1R does not state that it only applies to land in the Yarra River corridor. However, the Applicant asks the Tribunal to read that provision as if it was the case; and
   7. submits that clause 12.03-1S has a different policy basis to clause 12.03-1R and that, in any event, it does not apply because the Land is not in a 'waterway system', being what that policy applies to.
2. Overall, the Applicant submits that while there is no clear and unambiguous answer to what is the Yarra River corridor, there are a series of 'tells' that lead the Applicant to submit that the Yarra River corridor can be no more than what is covered by the DDO1.
3. By contrast, the Applicant says that the SLO1 does not define the Yarra River corridor because the SLO1 is headed 'Yarra (Birrarung) River Corridor Environs' and so applies to a different area.
4. The Applicant accepts that if the Tribunal was to find that clauses 12.03-1S and 12.03-1R are relevant to the exercise of its discretion, these could be considered through the IN3Z decision guideline that refers to '[a]ny natural or cultural values on or near the land'.

1. The Council submits that clauses 12.03-1S and 12.03-1R are relevant to the assessment of the proposal notwithstanding the Land is not subject to the DDO1 or the SLO1 because those policies apply to the Yarra River corridor and the Council submits that the Land is located in the Yarra River corridor. It is then a matter for the Tribunal as to what weight to attribute to those policies in the assessment of the proposal.
2. In terms of the Land being within the Yarra River corridor, the Council:
   1. relies on the 2016 Study, referring to maps showing the overall study area, the current and ex-industrial character area and the sub-area key map, along with the diagram that shows the river corridor areas;
   2. acknowledges that the Land is not included in the recommended management areas, which ultimately were the areas where the DDO1 and SLO1 were applied, but contends that this does not mean that the Land is not located in the Yarra River corridor;
   3. submits that the Land is located within the 'Landscape Setting Corridor' and sub-area 3 of the 'Lower Yarra River corridor' of the 2016 Study;
   4. submits that it follows that the Land is within a river 'corridor' for the purposes of clause 12.03-1S of the Scheme; and
   5. refers to the objectives and strategies of clauses 12.03-1S and 12.03‑1R of the Scheme and their references to 'river corridor' and 'landscape setting' and submits that the 2016 Study 'clearly shows the extent of' the Yarra River corridor. The Council acknowledges that in the absence of the 2016 Study it might be reasonable to ask what is the extent of those areas.
3. In terms of the relevance of clauses 12.03-1S and 12.03-1R of the Scheme to the assessment of the proposal, the Council:
   1. refers to cases including Brunswick Investment Project Pty Ltd v Moreland CC[69] ('Brunswick Investment'), Clifftop at Hepburn Pty Ltd v Hepburn SC[70] ('Clifftop') and Booth v Strathbogie SC[71] ('Booth'). The Council submits that Brunswick Investment and Clifftop can be distinguished on the basis that the Council does not seek to rely on the general direction in the purposes of the IN3Z to enliven policy in the Planning Policy Framework that is not relevant to the permission to construct a building on land in the Yarra River corridor. Rather, the Council submits that:[72]

...the permit trigger in the IN3Z to construct a building, in the context of land which is clearly part of the Yarra River corridor, means that the objectives and strategies of clauses 12.03-1S and 12.03-1R are relevant to an integrated decision making exercise. This is not to construe the permission under the IN3Z so broadly that every conceivable consideration in the PPF is open. This is a targeted approach to parts of the PPF that are called into play by an examination of the words of the policy itself. Council's submission is that those clauses are relevant to the Tribunal's consideration of the Permit Application because they specifically refer to the Yarra River corridor, in which the Subject Land is located, and therefore the policy it is seeking to invoke is applicable by the words of the policy itself.

1. distinguishes Booth and the concerns expressed by the Tribunal regarding any land that is in a 'designated bushfire prone area' not being defined in clause 13.02-1S of the Scheme because the Council submits that the extent of the Yarra River corridor is clear from the 2016 Study. Rather, the Council relies on Khadem v Hume CC[73] ('Khadem'), where the Tribunal relied on the definition of 'bushfire prone area' in the Building Act 1993 (Vic) and the associated regulations. In Khadem, the Tribunal stated:[74]
   1. Further while mapping of areas of BPA are not included in the planning scheme, a fact also observed in Booth such areas are determined in accordance with section 192A of the Building Act by the Minister for Planning as the responsible Minister and published by way of Government Gazette. The determination of BPA's thus falls within the matters that might be considered - if relevant - under section 60(1A)(j) if not section 60(1A)(g) of the PE Act, though I do not consider this necessary given the operation of clause 71.02 and the reference in clause 13.02-2 that the policy applies to land designated as a BPA.
   2. In my view, given the land falls within a designated (or declared) BPA and considering the operation of clause 71.02, this is sufficient to conclude that this policy applies to this land.

1. submits that the Tribunal is not faced with a situation where the extent of the Yarra River corridor is unknown 'such that the application of clauses 12.03-1S and 12.03-1R cannot be properly understood';[75]

1. emphasises the importance of the words of the policy itself and that neither policy refers to the DDO1 or the SLO1;
2. draws an analogy between urban design and building design State policies at clause 15, which do not refer to the DDO but apply to land in a DDO but also land not in a DDO and are expected to be considered where there is a permit requirement for buildings and works;
3. submits that the permissions required under the IN3Z engage an inquiry about what is an appropriate use and development of the Land. Clauses 12.03-1S and 12.03-1R include strategies that address development in the Yarra River corridor and these clauses are relevant to the permissions sought for use and development of the Land; and
4. submits that as to weight, the Tribunal will need to integrate the range of relevant planning policies in accordance with clause 71.02-3 of the Scheme.

1. In essence, the Respondents submit that the findings of the Tribunal in Shouman were sound and should not be displaced. This includes the Tribunal's findings that the Land is within the 'Landscape Setting Corridor' of the 2016 Study and within the Yarra River corridor for the purposes of clauses 12.03-1S and 12.03-1R of the Scheme.
2. Mr Martin and Ms Robson highlight the quality of assessment and careful preparation of reasons contained in the Shouman decision.
3. Mr Pertile highlights that clause 12.03-1L has been introduced since Shouman was issued and states that the clause strengthens and reinforces the content of the State and regional policies.
4. The Respondents also rely upon the YRP Act.
5. Ms Lucas submits that the Tribunal must have regard to the YRP Act and the associated Burndap Birrarung burndap umarkoo ('Yarra Strategic Plan') released in 2022, after Shouman, in making its decision. To this end, Ms Lucas relies upon the obligations of the Council under the Local Government Act 2020 (Vic) and the matters that the Tribunal must take into account under s 84B of the Planning and Environment Act 1987 (Vic) ('PE Act'). Ms Lucas submits that the directions contained in the Yarra Strategic Plan are consistent with the content of clauses 12.03-1S, 12.03-1R and 12.03-1L of the Scheme. Ms Lucas submits that significant weight should be given to achieving the objectives and strategies in those clauses given the State significance of the Yarra River corridor and the legislation defining the Yarra River as a single living and integrated natural entity for protection.

What do the terms river corridor and Yarra River corridor mean for the purposes of clauses 12.03-1S and 12.03-1R, respectively?

Statutory interpretation of subordinate legislation

1. The first step in interpreting the words of the Scheme is to consider the words themselves.
2. Neither the term Yarra River corridor in clause 12.03-1R, nor the term river corridor in clause 12.03-1S, is defined in the Scheme. As such, pursuant to clause 73 of the Scheme, the ordinary meaning of each term applies.
3. The 'Yarra River' is a proper noun. It is the name given to the water feature that is identified in the Register of Geographic Names[76] and shown as follows in the Vicnames database.[77]

Figure 5 - Yarra River as shown in the Register of Geographic Names

1. However, the term Yarra River corridor is different from the 'Yarra River'. To this end, I address the ordinary meaning of the term 'corridor', below.
2. The term river corridor is not defined in the Macquarie Dictionary.
3. The Macquarie Dictionary defines the word 'river' as including the following:[78]

noun 1. a defined watercourse of considerable size and length, whether flowing or dry according to the seasons, and whether a single channel or a number of diverging or converging channels.

2. such a watercourse, especially when flowing.

1. The Macquarie Dictionary defines the word 'corridor' as including the following:[79]

noun

1. a gallery or passage connecting parts of a building.

2. a passage into which several rooms or apartments open.

3. a passageway on one side of a railway carriage into which the compartments open.

4. a narrow tract of land forming a passageway, as one belonging to an inland country and affording an outlet to the sea: the Polish Corridor.

5. migration corridor.

1. A river corridor is a 'narrow tract of land forming a passageway' along which the water in a river regularly travels in moving from one place to the next. When one conceives of a river corridor, it includes:
   1. the main channel of the river, where the water moves;
   2. the area on either side of the main river channel, which may be inundated by the river expanding from time to time during events of high flow. The extent of this inundation area will depend on the topography on either side of the main channel; and
   3. the river banks, being the land areas on either side of the main channel up to the crestline where the land flattens to that of the adjacent land. The river banks will vary in depth and steepness depending on the topography on either side of the main channel.
2. Having regard to the above, I find that the term:
   1. Yarra River corridor means the land over which the waters of the Yarra River flow and the river banks on either side of the main channel that rise to the crestline at which the topography flattens to that of the adjacent land; and
   2. river corridor means the land over which the waters of a river flow and the river banks on either side of the main channel that rise to the crestline at which the topography flattens to that of the adjacent land.
3. The overall width of the Yarra River corridor or the river corridor will vary along the length of the Yarra River corridor, or any river corridor, as some parts of the Yarra River corridor will have wider or steeper river banks than other parts. This may result in what amounts to the Yarra River corridor or the river corridor being quite wide or rather narrow, depending on the topography of the bank on either side of the main channel. That is, if the banks on either side are relatively flat, conceivably there might be land in that flatter area that forms part of the Yarra River corridor for the purposes of these policies. The extent to which this is the case for any part of the Yarra River corridor will depend on an examination of the context of that part of the Yarra River corridor. In the part of the Yarra River corridor proximate to the Land, there might be low-lying areas that legitimately form part of the Yarra River corridor as I have defined this term.
4. Fundamentally, however, the Yarra River corridor and a river corridor, is the place in which the Yarra River waters, or the waters of whichever river it is, flow, and which is encased by the banks on either side.

**Context of Yarra River corridor and a river corridor in relevant provisions

1. I next consider the way in which the terms, as defined, fit within the context of the provisions in issue. Do these terms, as defined, fit having regard to the purpose of the provision? Given this subordinate legislation is intended to be used by people in a particular industry, will this interpretation lead to a reasonably practical result?
2. I find that the way in which I have defined the terms Yarra River corridor and a river corridor sensibly fits within the context of clauses 12.03-1S and 12.03-1R of the Scheme and explain why, below.

1. The term river corridor appears in clause 12.03-1S of the Scheme in the context of it being one of a series of nouns (e.g. 'riparian corridors', 'waterways', 'wetlands') that the policy has the objective of protecting and enhancing.
2. This objective will be achieved through implementing the specified strategies in the policy. These strategies include:

Conserve waterway systems and the landscapes and environmental values surrounding them by protecting ecological values, indigenous vegetation, terrestrial and aquatic habitats and encouraging biodiversity.

Sensitively design and site development to maintain and enhance the waterway system and the surrounding landscape setting, environmental assets, and ecological and hydrological systems.

Address the impacts of use and development on drought and flooding events at a catchment and site scale to protect the health and natural function of waterway systems and their surrounding landscape and environment.

...

Retain and enhance the recreation and amenity values along waterway systems by:

• Planning for surrounding green spaces as recreation and tourism resources without adversely impacting environmental values and flood management capacity.

• Discouraging privatisation of spaces that interface with or provide access to waterway systems.

...

Design and site development to maintain and enhance the natural environment of waterway systems by:

• Minimising the visual intrusion of development on the natural landscape views from major roads, bridge crossings, public open space, recreation trails and within waterway systems themselves.
• Ensuring development is visually subordinate to the local landscape setting, including through the use of vegetation to filter views of development.
• Ensuring development adjacent to waterways adopts high quality materials and respectful design and siting.

1. As can be seen from the strategies extracted, while the term river corridor is not used, given the objective of the clause I interpret the term 'waterway systems' to include reference to a river corridor.
2. I find that interpreting the river corridor as being the 'waterway system' itself - that is, the main channel in which the water flows and the river banks on either side - is consistent with the drafting of clause 12.03-1S of the Scheme. This is because I interpret the strategies in that provision as differentiating between:
   1. what should occur within the waterway system - e.g. conserving the waterway system;
   2. what should occur on public land along the waterway system, noting that 'along' is defined[80] to include 'parallel to or in a line with the length of' - e.g. conserving the landscapes and environmental values surrounding the waterway system, and, retaining and enhancing the recreation and amenity values along the waterway systems by planning for surrounding green spaces as recreation and tourism resources; and
   3. what should occur on private land adjacent to the waterway system - e.g. ensuring development adjacent to waterways adopts high quality materials and respectful design and siting.
3. Importantly, given the text of this provision, I do not interpret the provision as being applicable only to the land in the river corridor. Rather, I think it is clear from the text of the policy provision that while the focus and subject matter of the provision is the various types of waterway systems, such as the river corridor, its scope is necessarily broader than that, also encompassing the land along the waterway system/river corridor and land adjacent to the waterway system/river corridor.

1. The term Yarra River corridor appears in clause 12.03-1R 'Yarra River protection' of the Scheme, in the context of the objective of this provision being to maintain and enhance the natural landscape character of the Yarra River corridor. This objective infers that the Yarra River corridor presently exhibits a 'natural landscape character' that is sought to be maintained and enhanced.
2. This objective will be achieved through implementing the specified strategies in the policy. These strategies include:

Strengthen the Yarra River's natural environment, heritage and overall health by:

...

• Protecting the river's riparian vegetation, natural riverbank topography and flood management capacity.

• Protecting and enhancing both terrestrial and aquatic habitats and their linkages along the river corridor.

Promote a sense of place and landscape identity by:

• Retaining a dominant and consistent tree canopy along the river corridor and in its broader landscape setting.
• Ensuring that the appearance of development is subordinate to the local landscape setting, with any views of development being filtered through vegetation.

Retain and enhance people's enjoyment of the river and its environment by:

• Planning for the river and its environs as a recreation and tourism resource.
• Ensuring linkages and public access to the river and its parklands are maintained, enhanced and new links created where appropriate.
• Avoiding overshadowing of the river, its banks and adjacent public open space to ensure that the amenity of the public realm is maintained year-round.

Ensure that development is designed and sited to maintain and enhance the river's secluded and natural environment by:

• Minimising the visual intrusion of development when viewed from major roads, bridge crossings, public open space, recreation trails and the river itself.
• Ensuring that the siting and design of buildings avoids conflicting with the local natural landscape and environmental character.
• Ensuring building height is below the natural tree canopy and all development is set back a minimum of 30 metres from the banks of the river.

1. As can be seen from the strategies extracted, the term Yarra River corridor is not used but there are references to the 'Yarra River', the 'river' and the river corridor.
2. As with clause 12.03-1S and the term river corridor, I find that interpreting the Yarra River corridor as being the Yarra River itself, comprising its main channel and river banks on either side, is consistent with the drafting of clause 12.03-1R of the Scheme. As with clause 12.03-1S, this is because I interpret the strategies in clause 12.03-1R to be differentiating between what should occur within the Yarra River corridor itself, what should occur on public land along the Yarra River corridor and what should occur on private land adjacent to the Yarra River corridor.
3. Further, as with clause 12.03-1S and the term river corridor, given the text of clause 12.03-1R, I do not interpret the provision as being applicable only to the land in the Yarra River corridor. I think it is clear from the text of the provision that while the focus and subject matter of the provision is the Yarra River corridor, the scope of the provision is necessarily broader, also applying to the land along the Yarra river corridor and land adjacent to the Yarra river corridor.

1. For the foregoing reasons, I find that:
   1. the terms river corridor and Yarra River corridor mean the land over which the waters of the particular river flow and the river banks on either side of the main channel that rise to the crestline at which the topography flattens to that of the adjacent land;
   2. these definitions are consistent with the context of clauses 12.03-1S and 12.03-1R of the Scheme; and
   3. clauses 12.03-1S and 12.03-1R of the Scheme are not confined in their application to only land in the river corridor or Yarra River corridor, respectively.
2. Given these definitions, I find that the Land is not within either the river corridor or the Yarra River corridor for the purposes of clauses 12.03-1S and 12.03-1R of the Scheme.

Why the 2016 Study does not define the terms Yarra River corridor and river corridor

1. In Shouman, the Tribunal relied upon the 2016 Study in defining the Yarra River corridor for the purposes of clause 12.03-1R of the Scheme. Amongst the findings in Shouman, the Tribunal in Shouman stated:[81]
   1. For reasons that follow, I have found that the site is within the Yarra River corridor and is included in the segment known as the 'Landscape Setting Corridor'. I also find that it is appropriate to give considerable weight to policies at clauses 12.03-1S and 12.03-1R.
   2. In making these findings I have been principally guided by the 2016 River Corridor Study, the chronology of strategic studies and planning scheme amendments as well as the particular strategic, physical, visual and spatial characteristics of the review site and its surrounding context.

1. First, I am satisfied from this assessment that although the site is not covered by either DDO or SLO controls, I find the site is nonetheless within the Yarra River corridor for the purposes of policy at clauses 12.03-1S and 12.03-1R. I further find that the site is included within the corridor segment described as the 'Landscape Setting Corridor' and at the north-western edge of the 'River Experience Corridor' in the 2016 River Corridor Study.

1. I also consider that references to 'local landscape setting' and 'broader landscape setting' in clause 12.03-1R support a finding that this policy is intended to apply to land in the 'Landscape Setting' corridor segment as defined in the 2016 River Corridor Study. I am fortified in my preceding conclusions by the various references throughout the 2016 River Corridor Study to the 'Waterway Corridor' and 'River Experience Corridor' as the two corridor segments within which mandatory controls in the form of revised DDO and SLO controls are recommended.

1. The Council and the Respondents have adopted the same approach in the present case.
2. By contrast, the Applicant submits that the Yarra River corridor is defined by the extent of the DDO1; that is, the Yarra River corridor is the area covered by the DDO1_._
3. I disagree with these approaches because I have found that the river corridor and the Yarra River corridor have their ordinary meanings, as explained in the previous section. However, for completeness, and noting the findings of the Tribunal in Shouman, I will now address why I disagree with the submissions of the parties and the relevant findings in Shouman.

1. The 2016 Study was commissioned by the Department of Environment, Land, Water and Planning:

...to better understand and assess the need for new or amended planning controls and design guidelines for land in proximity to the Yarra River between Punt Road and Bulleen.

The objective of this study is to achieve consistent development outcomes along the Lower Yarra River to ensure that further development does not encroach on the river's landscape, environmental, aesthetic, cultural and recreational values. Importantly, the study focusses on management of the interface between public and private land along the corridor.[82]

1. The 2016 Study states that references in the 2016 Study to the 'Lower Yarra River corridor' are references to the study area of the 2016 Study.[83]
2. The mapping of the study area covers a relatively large area, as is evident from the mapping below.[84]

1. The 2016 Study is divided into six different sections:
   1. section 1 provides background information about the parameters of the study and key relevant studies and the evolution of controls;
   2. section 2 'Values of the Lower Yarra River Corridor' discusses the significance of the Yarra River and provides information about matters such as its topography, environment, biodiversity, character and amenity, cultural heritage, open space and recreation and threats and pressures;
   3. section 3 'River Interface Character Types Analysis' discusses the various characters of areas that interface with the Yarra River, as categorised in the 2016 Study;
   4. section 4 'Views Analysis' discusses the various ways in which persons view the Yarra River, depending on their vantage point;
   5. section 5 'Managing Development' provides recommendations 'to strengthen the management of development within the landscape corridor of the Yarra River';[85] and
   6. section 6 'Recommendations' compiles the findings and recommendations spatially by way of the four sub-areas along the course of the Yarra River that have similar characteristics.
2. The 2016 Study does not contain a definition for the Yarra River corridor.

2016 Study is a policy document and is not part of the Scheme

1. Clause 12.03-1R contains a section at the end of the provision headed 'Policy documents'. The opening words of this section state 'Consider as relevant' after which two documents are listed. One of these documents is the 2016 Study.
2. Clause 71.02-2 of the Scheme explains what is meant by a 'policy document' along with what is meant by a 'policy guideline'.
3. Clause 71.02-2 states the following with respect to these two types of documents:

Policy guidelines

A planning policy may include policy guidelines. Policy guidelines indicate how objectives can be met and how strategies can be implemented.

A responsible authority must take a relevant policy guideline into account when it makes a decision under this planning scheme, but is not required to give effect to it. If the responsible authority is satisfied that an alternative approach meets the objective, the alternative may be considered.

Policy documents

A planning policy may include reference to a policy document. A policy document may be an incorporated, background and other document.

A background document listed in the table or the schedule to Clause 72.08 that applies to Clauses 10 to 19 is a policy document for applicable planning policies.

[Tribunal emphasis]

1. Clause 72.08 provides that a background document may:

Have informed the preparation of, or an amendment to, this planning scheme.

Provide information to explain the context within which a provision has been framed.

Assist the understanding of this planning scheme.

1. Clause 72.08 of the Scheme states that a background document does not form part of the Scheme.
2. The 2016 Study is not a 'policy guideline', so it is not a document that the Council (or Tribunal, on review) must take into account when making a decision on this permit application.
3. Rather, the 2016 Study is a 'policy document'.
4. Of the various listed options, the 2016 Study:
   1. is not an incorporated document;[86]
   2. is listed as a background document in the table in clause 1.0 to the Schedule to clause 72.08 'Background documents', as follows:

1. Having regard to the context in which the 2016 Study is referenced in table 1, above, the inference is that the 2016 Study may provide information about the context of Amendment VC197 and assist in the understanding of the DDO1 and the SLO1.
2. I observe that the table does not refer to clause 12.03-1R of the Scheme, notwithstanding that many other background documents in that table do refer to policy clauses, as opposed to controls.
3. Given that there is no mention of clause 12.03-1R in table 1, I query the inconsistency between clause 12.03-1R including the 2016 Study under the heading 'Policy documents' but then table 1 not referring to clause 12.03-1R when it deals with the 2016 Study as a 'background document' (being a type of 'policy document').
4. Given this inconsistency, it is possible that, for the purpose of clause 12.03-1R, the description of the 2016 Study as a 'policy document' is not in the context of it being a 'background document' but rather, falls into that category of 'other document' referred to in clause 71.02-2 of the Scheme. It is not clear from the Scheme what is meant by a 'policy document' that is in the category of 'other document'.
5. If nothing else, there is nothing before me to suggest that the 2016 Study forms part of the Scheme, given it is not an incorporated document and whether it be an 'other document' or a 'background document', it does not form part of the Scheme.
6. Putting the inconsistency to one side, if I accept that the 2016 Study as a policy document provides information to explain the context within which clause 12.03-1R was created, I do not think that this extends to using the 2016 Study to define what is meant by the term Yarra River corridor as used in clause 12.03-1R.
7. Fundamentally, this is because it is not evident from the text of clause 12.03-1R that the clause does not employ the ordinary meaning of Yarra River corridor and instead the reader is being directed to the 2016 Study to understand what is meant by that term.
8. However, even if this was intended by the drafting, it would be an unusual approach to direct someone to a document outside of the Scheme in order to understand whether a particular policy of the Scheme applied to a permit application. As a matter of fairness and transparency, it should be evident from the text of the Scheme (and any applicable mapping) as to which parts of the Scheme apply to any given permit application.
9. In the event that I am wrong about this, and the reference to the 2016 Study as a 'policy document' in clause 12.03-1R of the Scheme is intended to be read as referring to the 2016 Study to understand what is meant by the Yarra River corridor, I address the content of the 2016 Study and how it deals with the Yarra River corridor.

2016 Study does not define the river corridor or the Yarra River corridor

1. The Tribunal in Shouman found that the Land was within the 'Landscape Setting Corridor' and at the north-western edge of the 'River Experience Corridor' of the 2016 Study, and, that although the Land was not within the DDO1 or the SLO1, it was within the Yarra River corridor for the purposes of clauses 12.03-1S and 12.03-1R of the Scheme.
2. The Council in this proceeding has adopted the approach in Shouman, contending that the Land is within the 'Landscape Setting Corridor' of the 2016 Study and is in the Yarra River corridor for the purposes of clauses 12.03-1S and 12.03-1R of the Scheme.
3. I do not regard the study area of the 2016 Study (being the 'Lower Yarra River corridor' as referenced in the 2016 Study) to be analogous to the Yarra River corridor as referenced in clause 12.03-1R of the Scheme. I explain my reasons for this conclusion below.

Strategies in a former version of Clause 12.03-1R pre-date the 2016 Study

1. The Applicant referred to a former version of clause 12.03-1R, being clause 12.05-2 'Yarra River protection', which was introduced into the Scheme on 21 December 215 via Amendment VC121.
2. The objective of that clause was:

Maintain and enhance the natural landscape character of the Yarra River corridor in which the topography, waterway, banks and tree canopy are dominant features providing a highly valued, secluded, natural environment for the enjoyment of the public.

1. As can be seen, that policy also had as its subject the 'Yarra River corridor' yet that clause pre-dates the 2016 Study.
2. The Applicant contends that given the strategies of clause 12.05-2 are 'largely identical'[87] to those of the current clause 12.03-1R, the 2016 Study cannot be relied upon to assist interpretation of the wording of clause 12.03-1R, given that wording already existed in the former clause.
3. I acknowledge that the Tribunal in Shouman addressed this issue, noting that while the 2016 Study had been completed after Amendment VC121:[88]

...the Yarra River corridor and its study area had, by that stage, already been defined in earlier strategic work. Importantly, the breadth of the corridor, at least as it now appears in the 2016 River Corridor Study around Abbotsford, is consistent with earlier studies referenced in the planning scheme under clause 12.01-1R at the time. Commenting on Amendment VC121, the 2016 River Corridor Study observes that the 'new "Yarra River Protection" policy provides a strengthened basis and rationale for the protection of the whole of the Yarra River corridor to inform decision making'.

[footnotes omitted]

1. I accept that there is some overlap between the 2016 Study and the content in the 'Review of Policies and Controls for the Yarra River Corridor - Punt Road to Burke Road 2005' (Department of Sustainability and Environment) ('2005 Study'), being one of the documents referenced in clause 12.05-2. This includes the concept of dividing the study area into various character types (see below with respect to the 2016 Study).
2. In the 2005 Study, the study area is said to be 'the Yarra River corridor between Punt Road and Burke Road and includes both private and public land'.[89] This is a statement of the extent of the area studied in the 2005 Study, notwithstanding that it might be inferred from the text that what is meant by 'Yarra River corridor' in that context is broader than how I have defined the term.
3. Irrespective, clause 12.03-1R of the Scheme now refers to the 2016 Study, which, as explained above, states the study area is the 'Lower Yarra River corridor'.
4. For the reasons that follow, I am not persuaded that the 2016 Study defines the term Yarra River corridor.
5. I agree with the Applicant that it would be unusual to effectively define a term retrospectively; to take a newer document and impose the meaning of a term from that document to an existing document. However, putting that to one side, one change that occurred between clause 12.05-2 being in the Scheme and clause 12.03-1R being included in the Scheme, is the reference to the 2016 Study as a 'policy document' in clause 12.03-1R. As such, while the text in clauses 12.05-2 and 12.03-1R might be largely identical, conceivably what was meant by the text in the two clauses might have changed.
6. In any event, as stated, for the reasons given below I have found that the 2016 Study does not define the term Yarra River corridor, so ultimately little turns on this.

1. The boundaries of the study area are difficult to define given the absence of parcel identifiers and the high level at which the road network is depicted.
2. In saying this, that level of detail was likely appropriate in the context of the 'study area' simply being the area that was studied for the purpose of the 2016 Study. That is, a relatively broad area was investigated for the purpose of making recommendations for controls and guidelines to achieve consistent development outcomes to ensure that further development does not encroach upon various values of the Yarra River.
3. However, it would be unusual for mapping that was intended to define the extent of a term, and which then has ramifications in the Scheme, to be at a scale that did not readily permit an understanding of which parcels were and were not included in that term.

2016 Study seeks to protect Yarra River corridor through management of land surrounding the Yarra River corridor

1. I read the 2016 Study to be seeking to protect the Yarra River corridor from the potential impacts of further development occurring both in and outside of the Yarra River corridor.
2. I interpret the Yarra River corridor as referenced in the 2016 Study to be the main channel of the Yarra River and its vegetated banks. That this is the case is evident from the text of the 2016 Study. It is important to read the text of the 2016 Study holistically. For this reason, I have considered the concepts of 'Waterway Corridor', 'River Experience Corridor' and 'Landscape Setting Corridor' discussed in section 5 alongside the remaining text in the 2016 Study.
3. Below I provide examples taken from different sections of the 2016 Study to support my conclusion that what is meant by the Yarra River corridor is not analogous to either the study area of the 2016 Study or to the Landscape Setting Corridor as defined in the 2016 Study.

Section 2 'Values of the Lower Yarra River Corridor'

1. The following three extracts are examples of the distinction drawn between the river corridor/Yarra River corridor and surrounding land, in the context of the values and significance of the Lower Yarra River Corridor (i.e. the study area) and its characteristics.
2. The first extract emphasises the importance of the experience of the heavily vegetated river corridor, including as viewed from outside the corridor:

Urban & Landscape Character

The general value ascribed to the Yarra's 'natural' landscape character, despite the obvious presence of buildings, rebuilt river banks, power lines, and so on, relies heavily on indigenous vegetation. According to the 2003 City of Yarra Built Form Review:

Most people ... experience the river corridor not from the river and its banks, but from vantage points outside the corridor, or as they drive across the river on a bridge. What they see (or expect to see) is a line of trees, a heavily vegetated river corridor. They will rarely see the water itself, except perhaps as a glimpse amongst the trees. The expression of the river corridor as a corridor of vegetation, particularly of canopy trees, is most important.

This heavily vegetated river corridor underpins the distinctive character of surrounding suburbs including Kew, Hawthorn, Toorak and South Yarra. Even in areas where the river corridor has been subject to greater modification such as Richmond, Abbotsford and Cremorne, the presence of vegetation underpins the character of the river.[90]

[Tribunal emphasis]

1. The second extract refers to facilities within the river corridor as compared with key open space and recreation facilities along the river corridor:

Increasing investment in public facilities, including recreation facilities continues to progressively improve the range of facilities and access options within the river corridor.

...

Key open space and recreation features along the river corridor are shown on the map on the following page. This includes the river's parklands, walking trails, key public recreation nodes and facilities, and main access points. This network of features offers a wide range of economic, health and wellbeing, and social benefits for a broad cross-section of the community.[91]

[Tribunal emphasis]

1. The third passage identifies one threat to built form character and in doing so, refers both to the Yarra River corridor and areas of public open space, suggesting these are different things:

Built form that is highly visible along the ridgeline/skyline and surrounding hillslopes, as viewed from the Yarra River corridor and areas of public open space.[92]

[Tribunal emphasis]

Section 3 'River Interface Character Types Analysis'

1. The study area contains identified River Interface Character Types.
2. The River Interface Character Type applicable to the Land is the 'Current and Ex-Industrial River Interface Character Type'. The following map extract shows this character type in the vicinity of the Land, along with other surrounding character types.

Figure 7 - River Interface Character Types of 2016 Study

1. The following three extracts provide examples of the distinction between the neighbourhoods in the character types of the study area, the parklands and recreation areas along the river corridor, and the landscape character of the river corridor.
2. In terms of the Leafy Suburban River Interface Character Type, the area is described as follows:[93]

The 2005 'Review of Policy and Controls for the Yarra River Corridor: Punt Road to Burke Road' identified residential neighbourhoods adjoining the river in Toorak, Hawthorn, Kew and Alphington as 'Leafy Suburban'.

These neighbourhoods have a distinctively well-treed character, which complements the landscape character of the river corridor.

[Tribunal emphasis]

Established residential neighbourhoods, either adjoining the river directly or located immediately beyond the parklands and recreation areas along the river corridor.[94]

[Tribunal emphasis]

1. In terms of the 'Current and Ex-Industrial River Interface Character Type', the following is stated:

Key Features

...

Established industrial, commercial and residential buildings, mostly located on the crestline of the Yarra River corridor.

...

Land Use & Built Form

...

Buildings in this area are a mix of heights, ranging from one storey to over twelve storeys, and are generally built up to the crestline of the river corridor, adding to their visual prominence on the skyline. A high level of vegetation cover on the river banks screens views to buildings from the river in many locations.

Pattern of Viewing

This character type is mostly experienced via the Capital City Trail, the Yarra Boulevard and the extensive network of open spaces along this part of the river corridor, particularly Yarra Bend Park on the opposite side of the river.

[Tribunal emphasis]

1. Read as a whole, the references distinguish between:
   1. industrial, commercial and residential buildings that are located on the crestline of the Yarra River corridor, which I interpret to be the top edge of the river bank where the topography flattens to that of the adjacent land;
   2. the network of open spaces along this part of the river corridor; and
   3. the Yarra River corridor itself.

1. The following two examples again recognise the distinction between the river corridor and other land in the study area.
2. The first extract addresses one of the threats to the river corridor. This threat is identified as being land in certain zones that is in close proximity to the river corridor, which suggests a distinction between the river corridor and private land:

At Gipps Street and Walmer Street, commercial, residential and other zoned land are in close proximity to the river corridor, and development is visible from the bridge, despite the heavy screen of riverside vegetation in these locations.[95]

[Tribunal emphasis]

1. In this second extract, pedestrian bridges are identified as a place where a person can immerse themselves in the river corridor, as distinct from the activity of the study area, thereby distinguishing between the river corridor that is sought to be protected through the recommendations made in the 2016 Study, and the study area itself:

The pedestrian bridges can provide a sense of momentary immersion in the naturalistic environment of the river corridor, as a distinctive contrast with the surrounding activity of the study area.[96]

1. Section 5 is the source of the definition of 'Landscape Setting Corridor' that was relied upon by the Tribunal in Shouman.
2. Section 5 provides 'study-wide recommendations to strengthen the management of development within the landscape corridor of the Yarra River.'
3. Section 5 identifies areas recommended for improved management. This area is cross-hatched in the map at figure 7, above. As can be seen, the recommended area for improved management is only a part of the study area of the 2016 Study.
4. Section 5 divides the study area into three landscape segments: 'Waterway Corridor', 'River Experience Corridor' and 'Landscape Setting Corridor'.
5. Section 5.1 explains that the areas recommended for management comprise the landscape segments identified as 'Waterway Corridor', 'River Experience Corridor' and 'Landscape Setting Corridor'.
6. Section 5.2 'Defining River Corridor Areas for Planning' states the following with respect to the 'Lower Yarra River corridor' (i.e. the study area):

Areas recommended for strengthened planning control management within the Lower Yarra River corridor have been determined based on an assessment of their relationship to the river corridor segments of the Waterway Corridor, River Experience Corridor or Landscape Setting Corridor, shown in Figure 1, below.

Detailed cross-sectional diagrams (Chapter 6) have been prepared in different locations to explore the relationship of the topography, existing development, vegetation cover and other characteristics within the river's immediate and wider landscape to inform the application of planning controls.

This analysis helps to understand how the river and its surrounding landscape vary along its course, at different distances from the river, and what management strategies might be required to achieve the vision and objectives for the study area.

[Tribunal emphasis]

1. The three landscape segments are shown in the following diagram, noting that this diagram was relied on by the Council and the Respondents and extracted in Shouman.

Figure 8 - River Corridor Areas figure in 2016 Study

1. First, the 'Waterway Corridor' is defined as follows:[97]

The Waterway Corridor comprises the river itself, its banks and the immediate environment.

The direct river frontage is dominated by a naturalistic vegetation cover appropriate to a riverine environment, whether or not it is strictly 'natural' in the sense of being indigenous and self-seeded. The riverbanks, with their tree cover and understorey vegetation, frame and enclose the waterway to the extent that, when canoeing down the river, a sense of remoteness from urban activities can be achieved. Maintaining this vegetated corridor has been, and should remain, a prime objective of land management throughout the corridor.

For the length of the Waterway Corridor, State policy requires a vegetated buffer zone of 30 metres to be provided along each side of the river, which is outlined in Clause 12.05 'Yarra River Protection' and Clause 14.02-1 'Catchment planning & management' of the State Planning Policy Framework. Other policies and controls are also in place to protect the river's landscape and environmental values, discussed further in Section 5.4. A coordinated approach to the management of the Waterway Corridor is required in the future, including the setting of mandatory building setback and height controls.

[Tribunal emphasis]

1. In terms of the Waterway Corridor, having regard to the text and the diagram:
   1. this is a similar concept to my definition of the river corridor and the Yarra River corridor, notwithstanding that I do not regard 'Waterway Corridor' to be interchangeable with those terms;
   2. the focus of the protection of the Waterway Corridor appears to be maintaining the vegetated corridor that is within the Waterway Corridor;
   3. the reference to needing to have a coordinated approach to the management of the Waterway Corridor in the future, including 'the setting of mandatory building setback and height controls', I read as a reference to the land outside of the Waterway Corridor being subject to mandatory building setback and height controls, in order to protect the secluded, remote experience of being within the Waterway Corridor. To this end, land does not need to be within the Waterway Corridor in order to be subject to controls to protect the Waterway Corridor. I draw a parallel between this concept and the maintaining and enhancing the river corridor and the Yarra River corridor through the management of land outside of the river corridor/Yarra River corridor in clauses 12.03-1S and 12.03-1R of the Scheme.
2. Second, the 'River Experience Corridor' is defined as follows:[98]

The River Experience Corridor comprises the fore- and middle-ground landscape that is viewed or experienced from the river, the Main Yarra trail and the adjoining parklands.

The viewsheds of the Main Yarra and Capital City Trails is particularly important because of the popularity of walking or cycling along the river. It differs from the waterway view shed to the extent that the trail is located at varying distances from the river with the river itself often not visible from the trail.

Because the experience of moving along the river and the trail is dynamic, the viewshed also is dynamic. At some locations on the trail, foreground vegetation obscures the horizon; at others there are open views. Even where this wider landscape is mostly obscured by foreground vegetation, progressive and intermittent glimpses of the wider landscape can be obtained from the trail. A photograph from a static viewpoint 'proving' that something is not visible behind the trees can be misleading in this respect.

When walking or cycling along the trail, or visiting the many areas of parkland, the experience is generally one of a naturalistically vegetated corridor. The success of this experience rests on the extent to which one feels enveloped in a continuous corridor of vegetation, a retreat from the hard surfaces and bustle of urban life. In reality, urban activity and development are often closer than one might expect, and urban reality breaks into the experience from time-to-time, such as when a major road crosses the corridor along its journey.

Clause 12.05, 'Yarra River Protection', acknowledges the need to protect the intrinsic value of the river's naturalistic setting, the importance of this environment in preserving the river's sense of place and landscape identity, and its recreational and environmental values. The Policy requires visual intrusion of built form within the river's environment to be minimised.

A key challenge of this study has been to document the qualities of the River Experience Corridor, and to propose measures that will protect and strengthen them. A number of management measures, such as setback lines, maximum building heights, vegetation protection, and siting and design guidance are needed to achieve this.

Currently, a range of discretionary or mandatory statutory controls relate to the River Experience Corridor, or in some locations, none at all. A coordinated consistent approach to planning control management across the River Experience Corridor is required, which should also include mandatory controls elements.

[Tribunal emphasis]

1. The references to the foreground and middleground landscape are explained by the following extracts from the 2016 Study:[99]

Foreground: Begins at the viewer, assuming location at the river edge, and extends to approximately 30m. Detail in the landscape such as individual leaves, flowers etc. and the colour and texture of the landscape and structures are evident within this view plane.

For the Yarra River corridor the foreground of views should be dominated by vegetation, views of the river bank and views of the river itself.

Middleground: Within the Yarra River corridor context, the middleground view plane has been determined as beyond 30m, and extending to 50m. Colour and textures are still visible, but secondary to those within the foreground of views.

It is within this view plane that the majority of front walls of buildings would be located. Front walls of buildings up to a height of 11m would be clearly visible within this plane, but would be in proportion to the river and its banks, and would therefore not diminish or 'visually overwhelm' the topography of the corridor. This is aided by the fact that views within this plane are often screened by vegetation and topographical rises.

However, any visible built form elements above 11m in height have the potential to visually dominate, and overwhelm the topography of the river and its banks. As such, any building elements above 11m should be designed and sited to be visually recessive, with a substantial upper level setback being the most effective solution.

Background: Alterations in the background (beyond 50m) are less distinctive. Detail can be seen, but increasingly, colour and texture variation is seen as grouped into mass elements and secondary in nature.

Built form beyond 50m of the viewer, while still visible, has less visual impact on the immediate river environs, and the viewer's experience of the river corridor.

1. As stated in the above extracts, these view planes are measured from the viewer being at the river edge and are illustrated in the following diagram.[100]

1. Having regard to the text of the definition of River Experience Corridor and the two diagrams above, I interpret that:
   1. the River Experience Corridor includes the foreground and middleground that is measured as being up to 50 metres from the river's edge;
   2. the reference to clause 12.05, 'Yarra River Protection' is a reference to a previous version of clause 12.03, which similarly sought to minimise visual intrusion of built form within the river's environment, which is achieved through management measures such as setback lines, maximum building heights, vegetation protection, and siting and design guidance; and
   3. at the time of the 2016 Study there was in place a range of either no control, discretionary controls or mandatory statutory controls, and the 2016 Study sought a coordinated consistent approach to the management of planning controls across the River Experience Corridor.
2. The following diagram depicts the proposed location for mandatory minimum setback lines and mandatory maximum building heights as regards the Waterway Corridor and the River Experience Corridor:[101]

Figure 10 - Waterway Corridor and River Experience corridor as compared with building setbacks and heights

1. Finally, the 'Landscape Setting Corridor' is defined as follows:[102]

The Landscape Setting Corridor comprises the wider setting of the river corridor, defined by the ridgelines or skyline at the extremity of the viewshed and beyond.

In simple terms this refers to the horizon visible from the Main Yarra and Capital City trails, adjoining parklands or the Yarra River itself. Where the horizon is close in (up to 300-500m), it is likely also to be the edge of the River Experience Corridor. In some areas the horizon is part of Melbourne's developed suburban area, in others it is public land.

Within the Lower Yarra context, the Landscape Setting Corridor varies significantly. In some locations it is defined by well vegetated parklands or leafy suburban areas with a strong presence of tree cover. This includes areas such as Fairfield, Kew, Hawthorn and Toorak.

In other locations, the river's wider Landscape Setting Corridor is defined by the dense urban form of inner Melbourne. Long range views from elevated locations on the eastern and southern side of the river are afforded across the densely urbanised context of Richmond and Cremorne, through to the Melbourne CBD on the horizon. South Yarra on the southern banks is also a densely urbansied [sic] context for the river, within a strongly vegetated setting.

[Tribunal emphasis]

1. The above description refers to the Landscape Setting Corridor comprising the wider setting of the river corridor, which I read as the wider setting in which the Yarra River corridor is located. This is not the same thing as this land being within the Yarra River corridor. It goes on to refer to the Landscape Setting Corridor varying significantly within the Lower Yarra context; in some locations it is defined by parklands or leafy suburban areas, in others it is defined by the dense urban form of inner Melbourne.
2. Given the River Experience Corridor includes the foreground and middleground measured as being up to 50 metres from the river's edge, the Landscape Setting Corridor must be the background as shown in Figure 9.
3. As to how the 2016 Study proposes to manage built form, the following discussion regarding the proposed mandatory and discretionary provisions provides some insight:[103]

This study proposes the introduction of targeted mandatory controls to ensure that the highly valued natural landscape and environment features of the Yarra River corridor are retained for the benefit of all Melbournians, now and into the future. It is proposed that the following built form aspects be set as mandatory provisions:

• overshadowing by new development of the banks and waters of the Yarra River;
• setting of maximum building heights for a given area measured from natural ground level; and
• setting a minimum building setback line from the Yarra River.

The above mandatory requirements should be consistently represented and applied throughout the corridor. These will be complemented by discretionary requirements that relate to the appearance of buildings and works within the viewshed of the Yarra River. This will provide clarity and certainty at the river's edge, while allowing for a performance based approach for built form outcomes in its broader landscape setting.

These aspects, in addition to protecting vegetation, and other matters such as careful management of the impacts of landscaping or earthworks, are key to ensuring the long term protection of today's landscape values within the Yarra River corridor.

[Tribunal emphasis]

1. I read these passages as indicating that:
   1. the mandatory requirements dealing with overshadowing of the Yarra River, maximum building heights and minimum building setbacks, are broadly referred to in the definition of the River Experience Corridor; and
   2. the mandatory requirements will be complemented by discretionary requirements relating to the appearance of buildings and works 'within the viewshed of the Yarra River' that will allow for a 'performance based approach for built form outcomes in its broader landscape setting'. This suggests these discretionary requirements will be applied to the areas that are within views obtained from the Yarra River corridor. I interpret the reference to there being a performance based approach to built form outcomes in the broader landscape setting of the Yarra River as being a reference to this occurring in both the River Experience Corridor and the Landscape Setting Corridor.
2. Having considered these three landscape segments of the study area, I find that the ultimate goal is to achieve the following three things:
   1. create clarity and certainty for management of development at the edge of the Yarra River corridor through the application of mandatory requirements in the River Experience Corridor;
   2. provide complementary performance-based assessment (i.e. discretionary requirements) for built form outcomes in the broader area, comprising the River Experience Corridor and the Landscape Setting Corridor;
   3. ensure the long term protection of today's landscape values within the Yarra River corridor.
3. That is, the purpose of these recommendations is to retain the existing landscape values within the Yarra River corridor.
4. The objectives of the proposed controls and policies suggested in the 2016 Study align with my interpretation of the Yarra River corridor being different to the three landscape setting segments, along with the Yarra River corridor being the subject of, but not defined by, the new provisions. These objectives include the following:[104]
   1. 'protecting views':

Protect and enhance the vegetation dominated views of the Yarra River corridor, particularly from public areas such as roads, paths, bridge crossings and open space reserves.

Retain native vegetation, particularly established vegetation, mature vegetation and canopy trees on both public and private land along the Yarra River corridor.

Site and design development so that it responds sensitively to the topographical and landscape character of the Yarra River corridor.

Protect natural landforms, natural stream geomorphology and geological formations of the Yarra River corridor, where practical.

Maintain and enhance public access to and throughout the Yarra River corridor including access to the river itself and shared use of water access locations.

Maintain and improve linear public open space and pathways along the Yarra River corridor, connecting existing and proposed open space areas upstream and downstream of the Yarra River.

[Tribunal emphasis]

1. Proposed decision guidelines in the 2016 Study also align with the interpretation of the Yarra River corridor being different to the three landscape setting segments. For example:[105]
   1. 'Whether the scale, form, siting and design of new buildings, including materials, colours and finishes, are sensitively integrated with the natural landscape setting of the river corridor', where the river corridor is interpreted as the main channel and its banks up to the crestline and the decision guideline is to consider the integration of proposed built form with the natural landscape setting of the nearby river corridor;
   2. 'Whether buildings and works are sufficiently set back from the banks of the Yarra River to ensure that:

- The river's natural flood and watercourse characteristics is not impacted.

- The topography of the river and its banks are maintained as the dominant feature in the public views of the river corridor',

which suggests that the views of the river corridor involve views of the topography of the river and its banks, as opposed to views of built form.

1. Lastly, I considered the recommendations section of the 2016 Study.
2. The Land is in sub-area 3 Hawthorn Bridge to Dights Falls of the study area.
3. The recommendations for this sub-area contain an acknowledgement that observes the distinction between the established built form in this sub-area and the Yarra River corridor:[106]

... This area features established industrial, commercial and residential buildings, some of which are located within close proximity to the Yarra River corridor.

[Tribunal emphasis]

1. The related cross-sectional analysis then depicts that what is sought to be protected are views obtained from the trails within the Yarra River corridor:

Figure 11 - Marine Parade and Harper Street cross-sectional analysis

1. For the foregoing reasons, when reviewed holistically, I find that the 2016 Study supports my interpretation of the river corridor and the Yarra River corridor. Further, I find that while the 2016 Study defines a study area for the scope of its investigation and divides this into three landscape segments, neither the study area nor any of the landscape segments are equivalent to what is meant by the river corridor or the Yarra River corridor for the purposes of clause 12.03-1S and 12.03-1R of the Scheme.

Neither the DDO1 nor the SLO1 define the Yarra River Corridor

1. I disagree with the Applicant's assertion that the DDO1 defines the extent of the Yarra River corridor.
2. I accept that the heading of the DDO1 is 'Yarra (Birrarung) River Corridor'. However, I do not accept that it follows that the area covered by the DDO1 defines the Yarra River corridor. There is nothing in the text of the DDO1 to state that this is the case.
3. Further, if the DDO1 did define the Yarra River corridor, then it would do so by excluding half of the actual Yarra River and its associated banks, given the mid-point of the DDO1 is in the middle of the Yarra River.
4. While the Applicant did not contend that the SLO1 defined the Yarra River corridor, I address this briefly, for completeness.
5. The SLO1 is headed 'Yarra (Birrarung) River Corridor Environs'. As with the DDO1, the SLO1 applies to public and private land (given the Yarra River itself is public land), although the SLO1 is also applied to parklands.
6. The reference in the statement of significance of the SLO1 to the Yarra River corridor containing 'some of the most valued flora, fauna, geological and geomorphological assets in metropolitan Melbourne' is consistent with my interpretation of the Yarra River corridor being the main channel and the river banks, as opposed to this area including large tracts of private land.
7. In fairness, the heading of the SLO1 in referring to the 'environs' of the Yarra River corridor avoids the confusion perhaps created by the DDO1 heading, given 'environs' is defined to mean:[107]

plural noun immediate neighbourhood; surrounding parts or districts, as of a city; outskirts; suburbs: *I resented more tensely than ever that so much of my life had been cramped into the ugly environs of 'Possum Gully. -MILES FRANKLIN, 1946.

1. As such, it is perhaps clearer that the SLO1 is intended to apply to the 'environs of', or surrounding parts or areas of, the Yarra River corridor, as well as to the Yarra River corridor itself, to the extent that it does so.
2. I accept that the DDO1 and the SLO1 in their current form arose from the recommendations of the 2016 Study. I accept that the controls that are contained in the DDO1 and the SLO1 include mandatory and discretionary requirements that are of a nature that are analogous to those referred to in the 2016 Study.
3. Having regard to the content of the 2016 Study and the mapping of the DDO1 and the SLO1, it appears that the DDO1 was applied to areas in the 'Waterway Corridor' and 'River Experience Corridor' of the 2016 Study, whereas the SLO1 was applied to areas in the 'Waterway Corridor', 'River Experience Corridor' and 'Landscape Setting Corridor' of the 2016 Study.
4. The content of the Advisory Note states that:
   1. the new DDO1 was applied to specific areas of private land immediately adjacent to, or within close proximity of, the Yarra River;[108]
   2. the DDO1 area is 'highly visible from the water, public land, trails and key viewing locations within the Yarra River corridor and is where development is likely to have the greatest impact';[109]
   3. the new or revised SLO1 was applied to all land irrespective of tenure from the Yarra River to the areas in the 'Landscape Setting Corridor' of the 2016 Study;
   4. the SLO1 'manages the siting and design of buildings, removal of vegetation and earthworks within the broader Yarra River corridor setting'.[110]
5. None of these things detract from my interpretation of the Yarra River corridor and in my view there is nothing in the Advisory Note that states otherwise.
6. Rather, I regard the Advisory Note to support my interpretation of Yarra River corridor, having regard to its reasoning as to how the planning controls have been prepared:[111]

Areas recommended for strengthened planning control management are based on a detailed assessment of land within close proximity to the Yarra River corridor. To determine their extent, the following approach was taken which defines the corridor (see figure 1) as one of three segments:

• the "Waterway Corridor" comprises the river itself, its banks and the immediate environs
• the "River Experience Corridor" encompasses foreground and middle ground landscape that is experienced from its banks, trails and public land
• the "Landscape Setting" comprises the wider setting of the river corridor, defined by landscape features such as ridgelines, vegetation density lines or urban interactions at the extremity of the viewshed.

1. In conclusion, I find that for the purposes of clauses 12.03-1S and 12.03-1R of the Scheme:
   1. river corridor means the land over which the waters of a river flow and the river banks on either side of the main channel that rise to the crestline at which the topography flattens to that of the adjacent land; and
   2. Yarra River corridor means the land over which the waters of the Yarra River flow and the river banks on either side of the main channel that rise to the crestline at which the topography flattens to that of the adjacent land.

Is the Land within the Yarra River corridor or a river corridor?

1. Given my interpretation of the Yarra River corridor, it follows that the Land is not within the Yarra River corridor for the purposes of clause 12.03-1R of the Scheme. This is because the Land is not within the public land that comprises the main channel and river banks of the Yarra River.
2. This being the case, and mindful of my interpretation of river corridor, I find that the Land is also not within a river corridor for the purposes of clause 12.03-1S of the Scheme.

Are clauses 12.03-1S and 12.03-1R of the Scheme relevant to the permissions before us in this proceeding?

1. Notwithstanding that the Land is not located in the Yarra River corridor, I find that clauses 12.03-1S and 12.03-1R of the Scheme are relevant to the assessment of the permissions sought under the IN3Z that are before us in this proceeding. I say this for the following reasons.

Clauses 12.03-1S and 12.03-1R do not only apply to the Yarra River corridor or to a river corridor

1. Clause 12.03-1S is entitled 'River and riparian corridors, waterways, lakes, wetlands and billabongs'. Its objective is to protect waterway systems including a river corridor. There is nothing in clause 12.03-1S that states that the policy only applies to waterway systems such as those listed.
2. Rather, looking at its strategies, which includes reference to development being visually subordinate to the local landscape setting, it is apparent that the policy is intended to also apply to private land. That is, areas other than a waterway system, such as a river corridor. The intention is to guide the development of such private land in order to ensure that the development does not visually overwhelm the local landscape setting of the river corridor.
3. Clause 12.03-1R is entitled 'Yarra River protection'. Its objective is:

To maintain and enhance the natural landscape character of the Yarra River corridor.

1. There is nothing in clause 12.03-1R that states that the policy only applies to the Yarra River corridor.
2. The strategies of this clause include reference to development being designed and sited to 'maintain and enhance the river's secluded and natural environment' in a number of ways. As with the State policy, this regional policy speaks to ways in which development of private land should be designed and sited to maintain and enhance the natural landscape character of the Yarra River corridor.
3. The policy does not need to only apply to the Yarra River corridor in order to achieve its objective. Nor does the Yarra River corridor need to be defined to include a parcel of private land in order for the policy to be taken into account in the assessment of a permission required on that private land.
4. Rather, the policy in clause 12.03-1R should be taken into account when relevant to any permission being sought, and in doing so, the objective is for the natural landscape character of the Yarra River corridor to be maintained and enhanced. This can be achieved through the implementation of the various strategies, including those that deal with the design and siting of development on private land.

Clauses 12.03-1S and 12.03-1R are relevant to the permissions sought under the IN3Z

1. Permission is sought under the IN3Z for use of the Land as an office and for the associated buildings and works.
2. Applying principles consistent with the findings of the Supreme Court of Victoria in Viva Energy Australia Pty Ltd v City of Greater Geelong & Anor[112] as well as those of the Tribunal in cases such as Brunswick Investment, Clifftop and Booth, the planning policies that are to be taken into account in the exercise of any discretion under the Scheme are those that are relevant when viewing the permission sought through the lens of the purpose of the permission and its decision guidelines. That is, the decision-maker should ask 'what is the purpose of that permission and what decision guidelines are to be taken into account in assessing that permission?'
3. Amongst the purposes of the IN3Z is:

To provide for industries and associated uses in specific areas where special consideration of the nature and impacts of industrial uses is required or to avoid inter-industry conflict.

...

To ensure that uses do not affect the safety and amenity of adjacent, more sensitive land uses.

1. Amongst the decision guidelines in the IN3Z is that the responsible authority must consider, as appropriate:
   • The Municipal Planning Strategy and the Planning Policy Framework.
   • Any natural or cultural values on or near the land.

1. While the term 'adjacent' that is used in the extracted purpose of the IN3Z is defined to mean adjoining or contiguous to,[113] I regard this to be too narrow an interpretation in the context of the purpose of the IN3Z. Rather, I think that the reference to 'the safety and amenity of adjacent, more sensitive land uses' must be broader than just the directly adjoining properties, given the nature of the possible land uses in the IN3Z and the possible extent of their safety and amenity impacts.
2. As with the discussion regarding the approach to the interpretation of the policy in clause 15.01-2L of the Scheme (refer to the main reasons of this decision), I find that this approach to the interpretation of 'adjacent' is consistent with the broad approach taken by the Tribunal in QPQ Pty Ltd v Moreland CC.[114]
3. If interpreted in this broader way, conceivably the Yarra River corridor may be an adjacent, more sensitive land use that should be considered in the assessment of this proposal.
4. Separately, the first stated purpose and its consideration of the nature and impacts of industrial uses could be taken as referring to the interaction and compatibility of such uses with the surrounding areas. I observe that the focus is on the use of land for industrial purposes and that what is being sought is not an industrial use. Irrespective, permission can be issued under the IN3Z for a non-industrial use including an office, notwithstanding that this is not referred to in the purposes of the IN3Z.
5. Turning to the decision guidelines, I find that the Yarra River is both a natural and a cultural value that is near the Land. I say this having regard to the Scheme as a whole and its identification and emphasis on the natural and cultural value held by the Yarra River. As such, I find that the policies of the Scheme that deal with the Yarra River, such as clauses 12.03-1S, 12.03-1R and 12.03-1L of the Scheme, are relevant to the assessment of the permissions sought by the Applicant under the IN3Z.
6. I also find that the concept of the interface with a non-industrial area could broadly encompass the interaction between the Land and the nearby Yarra River corridor. I say this mindful that 'interface' is defined to include:[115]

1. a surface regarded as the common boundary to two bodies or spaces.

...

5. the point or area at which any two systems interact.

1. While on one interpretation the interface is similar to whether things are adjacent, again, I regard that interpretation to be too confined in the context of the purpose of the IN3Z seeking to ensure that uses do not affect the safety and amenity of adjacent, more sensitive land uses, and the extent to which these impacts might be experienced beyond the immediate adjoining properties.
2. In summary, I find that when the permissions sought under the IN3Z are viewed through the lens of the purposes and decision guidelines of the IN3Z, the policies contained in clauses 12.03-1S, 12.03-1R and 12.03-1L of the Scheme are relevant to the Tribunal's assessment of those permissions.
3. Relevance having been established, the weight to be given to the policies contained in clauses 12.03-1S, 12.03-1R and 12.03-1L of the Scheme needs to be determined in assessing permissions sought under the IN3Z.
4. I regard the distance between the Land and the Yarra River corridor to be one factor that is relevant to the weight to give to the policies contained in clauses 12.03-1S, 12.03-1R and 12.03-1L of the Scheme: arguably, the close a site is to the Yarra River corridor, the greater its potential visibility from the Yarra River corridor if developed, and the greater weight should be afforded to its objectives of maintaining and enhancing the natural landscape character of the Yarra River corridor.
5. This is consistent with the comments in the 2016 Study in relation to views of the background landscape, where it is stated that:

Built form beyond 50m of the viewer, while still visible, has less visual impact on the immediate river environs, and the viewer's experience of the river corridor.

1. In this respect, given the imposition of the DDO1 and the SLO1 on land in closer proximity to the Yarra River corridor, this might often lessen the weight given to clauses 12.03-1S, 12.03-1R and 12.03-1L for land outside the DDO1 and the SLO1.
2. Another important factor relevant to the objectives of the policies and the weight to be afforded to them is the proposed height and mass of any development: arguably, the greater the height and mass of a proposed development, the greater the potential visibility from the Yarra River corridor and the greater the weight that should be afforded to the policy objectives.
3. The weight to be given to this particular proposal is a question of merit that is addressed in the Tribunal decision, as constituted by both myself and Senior Member Glynn in the body of our reasons.

Clauses 12.03-1S and 12.03-1R are not relevant to the permission under clause 52.06

1. Permission is also sought under clause 52.06 of the Scheme for a reduction in car parking spaces.
2. By contrast, I find that clauses 12.03-1S and 12.03-1R are not relevant to the permission sought under clause 52.06 of the Scheme to reduce the statutory car parking requirement. This is because nothing in the purposes or decision guidelines of clause 52.06 is directed towards the matters addressed in clauses 12.03-1S and 12.03-1R of the Scheme.

Clauses 12.03-1S and 12.03-1R do not only apply to DDO1 and SLO1

1. I accept that in exercising discretion under the DDO1 and the SLO1, clauses 12.03-1S and 12.03-1R of the Scheme could be taken into account as they are policies that are relevant to those permissions.
2. However, I do not accept that it is only through the DDO1 and the SLO1 that clauses 12.03-1S and 12.03-1R of the Scheme can be taken into account. There is nothing in clauses 12.03-1S and 12.03-1R of the Scheme that confine their relevance to the DDO1 and the SLO1, nor is there anything in the DDO1 and the SLO1, or anywhere else in the Scheme, that states this to be the case.
3. In Brunswick Investment and Clifftop the notion of a control 'covering the field' was addressed in the context of whether planning policy relevant to that control could or should then be taken into account in the assessment of another control. For example, areas subject to extreme bushfire behaviour are controlled through the Bushfire Management Overlay ('BMO') and the relevant bushfire planning policy is taken into account in the assessment of that permission. It is not appropriate to seek to take that same bushfire planning policy into account in the assessment of another permission under a different control because there is a specific control - the BMO - in the planning scheme that is intended to deal with when a permission is required for land in an area subject to extreme bushfire behaviour. That is, the BMO 'covers the field' with respect to the assessment of development in areas subject to extreme bushfire behaviour.
4. Further, for the reasons explained in cases such as Clifftop, it would be inappropriate if matters that were the subject of a specific control that was not triggered in a particular case could be taken into account when assessing a different permission that was triggered in that case. Depending on the circumstances, this might amount to allowing consideration of an issue via the back door (i.e. through the different provision) when the front door (i.e. the specific control) was not available.
5. However, the same cannot be said of the DDO1 and the SLO1 in the context of clauses 12.03-1S and 12.03-1R of the Scheme. This is because I have found that the mapping of the DDO1 and the SLO1 does not define the Yarra River corridor.
6. I have found that:
   1. the DDO1 is mapped to include the 'Waterway Corridor' and the 'River Experience Corridor' of the 2016 Study; and
   2. the SLO1 is mapped to include land in all three landscape segments, which extends out to areas in the 'Landscape Setting Corridor' of the 2016 Study.
7. However, these landscape segments are concepts that are created in the 2016 Study for the purposes of making recommendations for improved land management, which then gave rise to the DDO1 and the SLO1.
8. The DDO1 and the SLO1 are two controls within the Scheme that provide different ways to deal with the interface with, or impact of development on, the Yarra River corridor. However, neither control maps the Yarra River corridor for the purposes of the policy in clause 12.03-1R of the Scheme. Instead, each of the DDO1 and the SLO1 maps the area that is the subject of each control, for the purposes of defining the area that is to be managed in the way that each control seeks to manage the impacts of the interface with the Yarra River corridor.
9. This is to be contrasted with, for instance:
   • the mapping of the BMO[116] that defines the extent of land that is subject to extreme bushfire behaviour and warrants particular assessment as a consequence; or
   • the particular provision in clause 52.06 of the Scheme that specifically controls the supply of car parking.[117]
10. For the reasons explained earlier, I have found that the Yarra River corridor is not defined by the mapping of the DDO1 or the SLO1. Rather, the Yarra River corridor is a separate concept, more analogous to the 'Waterway Corridor' but also not interchangeable with that term either.
11. In reality, while there is overlap between the concepts and intentions of the policies in clauses 12.03-1S and 12.03-1R of the Scheme and what is controlled by the DDO1 and the SLO1, it is not a complete overlap. Conceivably, the policies in clauses 12.03-1S and 12.03-1R of the Scheme could have broader application than the areas mapped as being in the DDO1 and the SLO1.
12. As such, it cannot be said that the DDO1 and the SLO1 'covers the field' with respect to the protection of the Yarra River corridor or the protection of waterway systems/a river corridor. This approach is not inconsistent with the findings or approach in either Brunswick Investment or Clifftop.

Relevance of the YRP Act and Yarra Strategic Plan

1. While not a matter raised in the question of law, given the YRP Act and the Yarra Strategic Plan was relied upon by the Respondents, I will also briefly address these documents.
2. I accept that the effect of s 84B of the PE Act is that the Tribunal must take into account certain matters, including those that the Council (as decision-maker at first instance) properly took account of, or had regard to, or was required to take account of, or have regard to, in making its decision.
3. The purposes of the YRP Act include:[118]

(a) to provide for the declaration of the Yarra River and certain public land in its vicinity for the purpose of protecting it as one living and integrated natural entity; and

(b) to provide for the development and implementation of a Yarra Strategic Plan as an overarching policy and planning framework in relation to the Yarra River and certain land in its vicinity; and

(c) to establish the Birrarung Council to provide advice to the Minister in relation to Yarra River land and other land, the use or development of which may affect Yarra River land, and other matters, and to report annually to the Minister on the implementation of a Yarra Strategic Plan by responsible public entities; and

(d) to set out principles to which responsible public entities must have regard when performing functions or duties or exercising powers in relation to Yarra River land or other land mentioned in paragraph (c).

[Tribunal emphasis]

1. The YRP Act defines 'Yarra River land' for the purposes of that legislation as the Yarra River, including its bed, soil and banks.[119]
2. The YRP Act enables the Governor in Council to declare specified land to be Yarra River land provided it is adjacent to, or within 500 metres of a bank of, the Yarra River, and it is one of an identified list of types of land. Those types of land specifically do not include land that is privately owned.[120] Given this, the obligations under the Act will not apply to the Land.
3. The YRP Act also enables the preparation of the Yarra Strategic Plan. Part 2 'Land Use Framework' of the Yarra Strategic Plan states that:[121]

Where required, directions will be translated into the Victoria Planning Provisions and become part of municipal planning schemes - meaning that relevant decision making on land use and development is consistent with the land use framework.

...

A framework with a regional approach

The directions for future land use and development are broad and purposefully high level and, where necessary, will be translated into specific planning provisions to:

• enable appropriate statutory mechanisms, such as planning policies or controls, to be determined at a state, regional or local level
• provide high-level guidance for places of regional significance to guide precinct or local scale plans, such as the Yarra River - Bulleen Precinct Land Use Framework Plan
• allow responsible public entities with obligations under the Yarra River Protection (Wilip-gin Birrarung murron) Act 2017, the Planning and Environment Act 1987 and other relevant acts to make informed and aligned decisions at a local level
• operate at three distinct scales - whole-of-river, reach and a local scale - enabling the Yarra to be protected as one living and integrated natural entity, while also recognising the myriad of landscapes and environments, with differing degrees of development, access, land use and management. Each scale includes spatial plans, discussion of significant values and directions and/or opportunities relevant to the area (see Figure 3).

Development of the land use framework has drawn on the experience of developing and implementing the many existing planning studies, strategies and projects in the Yarra corridor. The framework is designed to operate at a regional level, however it also informs planning policies, provisions and controls at local levels (see Figure 4). The framework does not take the place of other strategies, frameworks and policies, but operates in conjunction with existing statutory protections to ensure that the Yarra is managed as one living and integrated natural entity

Implementation of the framework

The land use framework will be given effect in planning schemes through a state-led planning scheme amendment process in consultation with councils and the broader Yarra Collaboration Committee. This will occur through a staged delivery process.

Stage 1 - Giving initial effect to the Yarra Strategic Plan

Clause 12.03-1R 'Yarra River Protection' of the Victoria Planning Provisions will be updated, relevant land use directions translated into planning schemes, and the Yarra Strategic Plan referenced as a background document. This will occur following approval of the plan.

Stage 2 - Whole-of-river actions and reach-based directions

Future stages of implementation will deliver the whole-of-river actions and reach-based directions for land use and development, giving place-based effect to the land use framework, ensuring the values of the river are protected and the 50 Year Community Vision can be realised. Delivery will be multi-staged and occur iteratively across the life of the plan through state-local government joint projects.

Where implementation of the framework requires additional strategic work to be undertaken, it will be completed prior to further planning scheme amendments being progressed.

1. The Yarra Strategic Plan is an aspirational, strategic work in that it identifies numerous 'opportunities for future projects and alignment', which often include recommendations to review existing planning scheme controls that will then address the objectives of the Yarra Strategic Plan.
2. Part 3AAA 'Yarra River land protection' of the PE Act applies to an amendment to the planning scheme and the obligations upon a planning authority in relation to Yarra River land and the Yarra Strategic Plan. Given its content, Part 3AAA of the PE Act is not relevant to our decision-making in this case.
3. Until a suite of planning policies and controls, as foreshadowed in the Yarra Strategic Plan, are prepared, the aspirations of the Yarra Strategic Plan in this respect remain unfulfilled. Accordingly, even if the Tribunal was required to take the Yarra Strategic Plan into account in its decision-making, there is nothing in that document that requires anything to occur in relation to the Land.

1. In summary:
   1. for the purposes of clause 12.03-1S of the Scheme, river corridor means the land over which the waters of a river flow and the river banks on either side of the main channel that rise to the crestline at which the topography flattens to that of the adjacent land;
   2. for the purposes of clause 12.03-1R of the Scheme, Yarra River corridor means the land over which the waters of the Yarra River flow and the river banks on either side of the main channel that rise to the crestline at which the topography flattens to that of the adjacent land;
   3. the Land is not in the Yarra River corridor;
   4. clauses 12.03-1S and 12.03-1R of the Scheme may be relevant to the assessment of a permission involving land that is not in the Yarra River corridor;
   5. the 2016 Study does not define the Yarra River corridor;
   6. neither the DDO1 nor the SLO1 define the Yarra River corridor;
   7. clauses 12.03-1S and 12.03-1R are relevant to the assessment of the use and development permissions sought by the Applicant under the IN3Z of the Scheme;
   8. clauses 12.03-1S and 12.03-1R are not relevant to the assessment of the permission sought by the Applicant under clause 52.06 of the Scheme; and
   9. the DDO1 and the SLO1 do not cover the field for the purposes of the protection of the Yarra River corridor.

1. My answer to the question posed by the Applicant is:

Clauses 12.03-1S and 12.03-1R of the Yarra Planning Scheme (Scheme) are relevant to the assessment of the proposal the subject of this proceeding even though the Land is not within the Design and Development Overlay - Schedule 1 (DDO1) or the Significant Landscape Overlay - Schedule 1 (SLO1). This is because clauses 12.03-1S and 12.03-1R of the Scheme are relevant to the permissions sought under the Industrial 3 Zone (IN3Z). The weight to be given to clauses 12.03-1S and 12.03-1R of the Scheme is influenced by the facts and circumstances of the case, which include the distance of the Land from the Yarra River corridor, the height and mass of the proposed development, and the extent to which the proposed development is expected to be visible from the Yarra River corridor.

1. These findings and the answer to this question of mixed law and fact have been taken into account in the making of our decision on the merits for this planning permit application.

Paragraphs [72]-[119] of Shouman Pty Ltd v Yarra CC (Red Dot) [2022] VCAT 313

Reduce the number of car parking spaces required under Clause 52.06-5.

1. Before the development commences, 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 this permit. The plans must be drawn to scale with dimensions and three copies must be provided. The plans must be generally in accordance with the decision plans prepared by Shouman Studios plan numbers TP100, 103-112, 201-204, 301-303, 501 and 502 all Rev C dated 18 June 2024, but modified to include:

(a) A dedicated bicycle lift between the basement and ground floor levels designed generally in accordance with plan sheets TP104 and TP105 both marked revision D and both dated 13 August 2024.

(b) Increased prominence and legibility of the main entrance, such as through a light extended canopy, soffit/wall lining or other device.

(c) A simplified articulation of the solid side walls, using textured concrete areas in a pattern that is more rectilinear and coordinated with the articulation of the front and rear facades.

(d) Correction of the misalignment between the ground floor frontage columns with the walls and piers behind.

(e) Details of any services cupboards or infrastructure at the ground floor street frontage demonstrating a high quality appearance.

(f) A vehicle crossing ground clearance check at a scale of 1:20 for a B99 design vehicle in accordance with Council's 'Vehicle Crossing - Cross Section' information sheet, demonstrating access into and out of the development and including the following spot levels:

1. the reduced level 2.0 metres inside the property;
2. the property boundary level;
3. the bottom of kerb (invert) level;
4. the lip of the channel level; and
5. a few levels on the road pavement for Marine Parade.

(g) Dimension the passing area at the base of the vehicle access ramp.

(h) Demonstration that internal floor levels will be DDA compliant in relation to the footpath.

(i) Any relevant changes required by the endorsed Sustainable Management Plan at Condition 7.

(j) Any relevant changes required by the endorsed Wind Report at Condition 14.

1. The use and development as shown on the endorsed plans must not be altered (unless the Yarra Planning Scheme specifies that a permit is not required) without the prior written consent of the Responsible Authority.

1. The amenity of the area must not, to the satisfaction of the Responsible Authority, be detrimentally affected by the development and uses, including through:

(a) The transport of materials, goods or commodities to or from land.

(b) The appearance of any buildings, works or materials.

(c) The emission of noise, artificial light, vibration, smell, fumes, smoke, vapour, steam, soot, ash, dust, waste water, waste products, grit or oil.

(d) The presence of vermin.

1. The use must at all times comply with the noise limits specified in the Environment Protection Regulations under the Environment Protection Act 2017 and the incorporated Noise Protocol (Publication 1826.4, Environment Protection Authority, May 2021).
2. The collection of waste from the site must be by private collection, unless with the prior written consent of the Responsible Authority.
3. Delivery and collection of goods to and from the land may only occur between 7am and 10pm Monday to Saturday, or after 9am on a Sunday or public holiday except for those allowed under any relevant local law.

1. Before the development commences or otherwise agreed by the Responsible Authority, an amended Sustainable Management Plan (SMP) must be submitted to and approved by the Responsible Authority. When approved, the amended SMP will be endorsed and will form part of this permit. The amended SMP must be generally in accordance with the Sustainable Management Plan prepared by Frater Consulting Services, dated 06/03/2020, but updated to include the following:

(a) The 15kW capacity of the solar panel system increased to reflect the increased number of solar panels;

(b) Confirmation that enabling infrastructure (e.g. conduits etc) will be installed to all car parking spaces to allow for the future installation of electric vehicle charging stations;

(c) Clarification if a commitment to a Building Systems Water Use Reduction is proposed;

(d) Consistency between the SMP initiatives annotated on the plans and the commitments detailed in the SMP, including detail of electric vehicle charging and clarify that the parking space with dedicated electric vehicle charging station has shared access between occupants;

(e) A JV3 modelling report showing a minimum 10% improvement over NCC 2016 and exceeding the requirements of NCC 2019;

(f) Clarification that improvement over NCC 2019 is for building fabric only (not reliant on services);

(g) Include calculations within JV3 modelling report to support GHG reduction claims;

(h) Include within JV3, details of how the proposed building design (and services) reduces peak energy demand;

(i) Confirmation whether the occupancy level of 25 persons in the basements, ground and level 1 stated in the submitted STORM report is accurate, with the rainwater tank capacity and STORM report updated should the occupancy level be amended (as applicable);

(j) Detail stormwater diversion ongoing maintenance details;

(k) The Buildings Materials section updated to remove non-committal language such as "wherever possible" and provide measurable percentage commitments to recycled and reused products and include additional components with recycled content (such as insulation);

(l) Detail if 80% construction waste target includes waste generated through demolition;

(m) Details of how organic waste management are communicated to each tenancy;

(n) Commit to producing a Building Users Guide explaining optimal usage of building services to minimise energy and water consumption;

(o) Clarify inclusion of demolition waste in recycling target;

(p) Confirm the depth of external shading projections on north facing glazing on L3, L4 and L5, and clarify whether the development satisfies criteria for BESS external shading credit, ensuring consistency between the plans and SMP;

(q) Include that pipes, cabling, flooring to do not contain PVC or meeting best practice guidelines for PVC;

(r) Consider ISO 14001 principles as applicable; and

(s) An energy efficient electric heat pump hot water system.

1. The provisions, recommendations and requirements of the endorsed Sustainable Management Plan must be implemented and complied with to the satisfaction of the Responsible Authority.

1. The provisions, recommendations and requirements of the endorsed Waste Management Plan by Frater Consulting Services dated 18/05/2023 must be implemented and complied with to the satisfaction of the Responsible Authority.

1. Before the development commences, an amended Landscape Plan to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the amended Landscape Plan will be endorsed and will form part of this permit. The amended Landscape Plan must be generally in accordance with the Landscape Plan prepared John Patrick Landscape Architects, Job No. 24.252, Plans marked VCAT01, 02, 03, 04, 05 and 06 all marked Revision A, but updated to include the following:

(a) Detail drawings for elements such as furniture and planters - showing dimensions, drainage, lining, materials and growing media. Volumes of growing media need to be adequate for the plant species proposed and well as cultivation depth;

(b) Provide information on proposed irrigation, light well detail, growing structure detail, and drainage detail for planters;

(c) Provide a maintenance schedule, including task details and frequency, maintenance and access;

(d) A notation that load bearing weights for the building structure will be checked and confirmed by a suitably qualified structural engineer against the saturated bulk density of soil media, planter box and plant mass being proposed; and

(e) Provide a planting plan(s) showing the location of proposed planting and plant numbers and species, as well as a legend containing key features, materials and surfaces.

1. The provisions, recommendations and requirements of the endorsed Landscape Plan must be implemented, complied with, and maintained by a professional contractor, to the satisfaction of the Responsible Authority.

1. Before the development commences, a Green Travel Plan (GTP) to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the amended GTP will be endorsed and will form part of this permit. The GTP must include:

(a) Description of the location in the context of alternative modes of transport;

(b) Employee welcome packs (e.g. provision of Myki/transport ticketing);

(c) Sustainable transport goals linked to measurable targets, performance indicators and monitoring timeframes;

(d) A designated 'manager' or 'champion' responsible for co-ordination and implementation;

(e) Details of bicycle parking and bicycle routes;

(f) Details of GTP funding and management responsibilities;

(g) The types of bicycle storage devices proposed to be used for employee and visitor spaces (i.e. hanging or floor mounted spaces);

(h) Security arrangements to access the employee bicycle storage spaces;

(i) Signage and wayfinding information for bicycle facilities and pedestrians pursuant to Australian Standard AS2890.3; and

(j) Provisions for the GTP to be updated not less than every five years.

1. The provisions, recommendations and requirements of the endorsed Green Travel Plan must be implemented and complied with to the satisfaction of the Responsible Authority.

1. Before the development commences, a Wind Report to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the Wind Report will be endorsed and will form part of this permit. The Wind Report must demonstrate the following will be achieved:

(a) All terraces achieve the necessary amenity for sitting.

(b) The main pedestrian entrances achieve the necessary standard of comfort for standing.

(c) The laneway network to the south to achieve the necessary standard for walking.

1. The provisions, recommendations and requirements of the endorsed Wind Report must be implemented and complied with to the satisfaction of the Responsible Authority.

1. Before the building is occupied, or by such later date as approved in writing by the Responsible Authority, external lighting capable of illuminating access to the pedestrian and vehicular entrances must be provided on the subject site. Lighting must be:

(a) located;

(b) directed;

(c) shielded; and

(d) of limited intensity to the satisfaction of the Responsible Authority.

1. All internal lighting within the offices and basement car parking areas on the Subject Land that result in light spill to the public realm or adjoining residential areas must operate on a timer or sensor so that all internal lighting is switched off when those areas are not in use, to the satisfaction of the Responsible Authority.
2. All buildings and works must be maintained in good order and appearance to the satisfaction of the Responsible Authority.
3. Before the building is occupied, or by such later date as approved in writing by the Responsible Authority, all new on-boundary walls must be cleaned and finished to the satisfaction of the Responsible Authority.
4. Before the building is occupied, any wall located on a boundary facing public property must be treated with a graffiti proof finish to the satisfaction of the Responsible Authority.
5. All pipes, fixtures and fittings servicing any building on the land must be concealed in service ducts or otherwise hidden from view to the satisfaction of the Responsible Authority.
6. Prior to the commencement of the development, the Development Infrastructure Levy must be paid to Yarra City Council in accordance with the approved Development Contributions Plan.
7. Before the building is occupied, or by such later date as approved in writing by the Responsible Authority, the area set aside on the endorsed plans for the car parking spaces, access lanes, driveways and associated works must be:

(a) Constructed and available for use in accordance with the endorsed plans;

(b) Formed to such levels and drained so that they can be used in accordance with the endorsed plans; and

(c) Line-marked or provided with some adequate means of showing the car parking spaces,

1. The car stacker devices must be installed, operated and maintained in accordance with the manufacturer's specifications and requirements.
2. No pipes, ducting or protrusions from the ceiling or walls are to be installed above or within the space clearance envelopes for the car stacker devices.

1. Before the building is occupied, or by such later date as approved in writing by the Responsible Authority, any new vehicle crossing must be constructed:

(a) in accordance with any requirements or conditions imposed by Council; and

(b) at the permit holder's cost; and

(c) to the satisfaction of the Responsible Authority.

1. Before the building is occupied, or by such later date as approved in writing by the Responsible Authority, any redundant vehicular crossing and drain outlets must be demolished and re-instated as standard footpath and kerb and channel:

(a) at the permit holder's cost; and

(b) to the satisfaction of the Responsible Authority.

1. Except with the prior written consent of the Responsible Authority, Council assets must not be altered in any way.
2. Before the building is occupied, or by such later date as approved, in writing by the Responsible Authority, any damage to Council infrastructure resulting from the development must be reinstated (including by the reconstructing of the kerb and channel and the resheeting of the entire Marine Parade footpath at the property frontage at a cross fall of 1 in 40 if required by the Responsible Authority):

(a) at the permit holder's cost; and

(b) to the satisfaction of the Responsible Authority.

1. Any services poles, parking sensors, street line-markings, structures or pits that interfere with the proposal must be adjusted, removed or relocated at the permit holder's expense after seeking approval from the relevant authority.

1. Before the development commences, a Construction Management Plan to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the Construction Management Plan will be endorsed and will form part of this permit. The Construction Management Plan must provide for (as appropriate):

(a) a pre-conditions survey (dilapidation report) of the land and all adjacent Council roads frontages and nearby road infrastructure;

(b) works necessary to protect road and other infrastructure;

(c) remediation of any damage to road and other infrastructure;

(d) containment of dust, dirt and mud within the land and method and frequency of clean up procedures to prevent the accumulation of dust, dirt and mud outside the land;

(e) facilities for vehicle washing, which must be located on the land;

(f) the location of loading zones, site sheds, materials, cranes and crane/hoisting zones, gantries and any other construction related items or equipment to be located in any street;

(g) site security;

(h) management of any environmental hazards including, but not limited to:

1. contaminated soil;
2. materials and waste;
3. dust;
4. stormwater contamination from run-off and wash-waters;
5. sediment from the land on roads;
6. washing of concrete trucks and other vehicles and machinery; and
7. spillage from refuelling cranes and other vehicles and machinery;

(i) the construction program;

(j) preferred arrangements for trucks delivering to the land, including delivery and unloading points and expected duration and frequency;

(k) parking facilities for construction workers;

(l) measures to ensure that all work on the land will be carried out in accordance with the Construction Management Plan;

(m) an outline of requests to occupy public footpaths or roads, or anticipated disruptions to local services;

(n) an emergency contact that is available for 24 hours per day for residents and the Responsible Authority in the event of relevant queries or problems experienced;

(o) the provision of a Traffic Management Plan to comply with provisions of AS 1742.3-2002 Manual of uniform traffic control devices - Part 3: Traffic control devices for works on roads;

(p) a Noise and Vibration Management Plan showing methods to minimise noise and vibration impacts on nearby properties and to demonstrate compliance with Noise Control Guideline 12 for Construction (Publication 1254) as issued by the Environment Protection Authority in October 2008. The Noise and Vibration Management Plan must be prepared to the satisfaction of the Responsible Authority. In preparing the Noise and Vibration Management Plan, consideration must be given to:

1. using lower noise work practice and equipment;
2. the suitability of the land for the use of an electric crane;
3. silencing all mechanical plant by the best practical means using current technology;
4. fitting pneumatic tools with an effective silencer;
5. other relevant considerations; and
6. any site-specific requirements.

(q) any stormwater discharged into the stormwater drainage system must be in compliance with Environment Protection Authority guidelines;

(r) stormwater drainage system protection measures must be installed as required to ensure that no solid waste, sediment, sand, soil, clay or stones from the land enters the stormwater drainage system;

(s) vehicle borne material must not accumulate on the roads abutting the land;

(t) the cleaning of machinery and equipment must take place on the land and not on adjacent footpaths or roads; and

(u) all litter (including items such as cement bags, food packaging and plastic strapping) must be disposed of responsibly.

If required, the Construction Management Plan may be approved in stages. Construction of each stage must not commence until a Construction Management Plan has been endorsed for that stage, to the satisfaction of the Responsible Authority.

1. The provisions, recommendations and requirements of the endorsed Construction Management Plan must be implemented and complied with to the satisfaction of the Responsible Authority.

1. Except with the prior written consent of the Responsible Authority, demolition or construction works, including delivery of materials and equipment, must not be carried out:

(a) Monday to Friday (excluding public holidays) before 7:00am or after 6:00pm.

(b) Saturdays and public holidays (other than ANZAC Day, Christmas Day and Good Friday) before 9:00am or after 3:00pm.

(c) Sundays, ANZAC Day, Christmas Day and Good Friday at any time.

(a) the development is not commenced within two years of the date of this permit;

(b) the development is not completed within four years of the date of this permit; or

(c) the use is not commenced within five years of the date of this permit.

The Responsible Authority may extend the periods referred to if a request is made in writing before the permit expires or within six months afterwards for commencement or within twelve months afterwards for completion.

[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.

[2] The building is seven storeys facing Marine Parade. To the rear, the site slopes down, exposing what is a basement level at the street edge, so that to the rear the building is an effective eight storeys.

[3] This was formalised in an order we made on 15 August 2024 that also directed one additional day of hearing to complete the hearing of the proceeding.

[4] (Red Dot) [2022] VCAT 313.

[5] The hearing was held in 2021 with findings delivered in early 2022.

[7] [2019] VCAT 851.

[9] [2012] VCAT 1675.

[10] [2015] VCAT 1572.

[11] [2021] VCAT 759.

[12] [2021] VCAT 563.

[17] Pertile v Yarra CC [2019] VCAT 851.

[19] Other than for minor elements, such as the consideration of small second dwellings in NRZ1, that do not impact on our decision making.

[23] Panel report to Amendment C269 Yarra Planning Scheme, Page 33.

[24] Panel report to Amendment C269 Yarra Planning Scheme, Page 36.

[25] Panel report to Amendment C269 Yarra Planning Scheme, Page 38.

[29] Applicant written submissions, [72].

[30] Global South urban design report to the council, pages 26 and 27. A copy of this report was provided to the Tribunal.

[31] The Applicant referring to findings in Graham v Stonnington CC (includes Summary) (Red Dot) [2010] VCAT 1224 and QPQ Pty Ltd v Moreland CC [2019] VCAT 2020 [119] - [124].

[32] Macquarie Dictionary online edition, Pan Macmillan Australia, 2024.

[33] [2019] VCAT 2020.

[34] DDO1 applies to 3A Marine Parade and properties to its east.

[35] Council written submissions [202], with reference to Shouman, [152] - [162].

[36] Council written submission, [207].

[37] Global South - Independent Urban Design Review - 24 November 2023, Page 26.

[38] 2016 Lower Yarra River Corridor Study, Page 35.

[40] Council written submission, [207].

[42] Such as nine metres separation that applies for applications for residential development in accordance with clause 54 and 55 of the Scheme.

[43] In Shouman the proposal included 49 car parking spaces for 3,967.3 square metres of office area.

[44] For example, Salta Properties Pty Ltd v Yarra CC [2019] VCAT 718 [91].

[45] Department Transport and Planning: Writing planning permits - Appendix 2 - Model conditions, May 2023.

[46] (Red Dot) [2022] VCAT 313.

[49] Tribunal's order dated 5 October 2021 in VCAT Application P372/2021.

[53] Outline of Submission on behalf of the Responsible Authority, 29 July 2024, [117].

[54] Clause 43.02-2 of the Scheme. Another exception to the need for a permit under the DDO is where a small second dwelling is constructed to a height not exceeding 5 metres.

[56] Clause 1.0 of Schedule 1 to the SLO.

[57] Clause 2.0 of Schedule 1 to the SLO.

[59] Outline of Submission on behalf of the Responsible Authority, 29 July 2024, [117].

[61] Clause 3.0 of Schedule 1 to the SLO.

[63] Clause 5.0 of Schedule 1 to the SLO.

[65] Citing Prahran Orrong Park Developments Pty Ltd v Stonnington CC [2017] VCAT 1021, [20].

[66] Ibid, [21] and also citing Melbourne CC v Minister for Planning (Includes Summary) (Red Dot) [2015] VCAT 370 at [34].

[67] Submissions on behalf of the Applicant for Review, 29 July 2024, [43].

[68] Department of Environment, Land, Water and Planning, February 2017.

[69] [2021] VCAT 1191.

[70] [2023] VCAT 201.

[71] [2023] VCAT 782.

[72] Outline of Submission on behalf of the Responsible Authority, 29 July 2024, [149].

[73] [2024] VCAT 61.

[75] Outline of Submission on behalf of the Responsible Authority, 29 July 2024, [159].

[76] Established under section 9 of the Geographic Place Names Act 1998 (Vic).

[77] Produced by the Victorian Department of Transport and Planning.

[78] Macquarie Dictionary online edition, Pan Macmillan Australia, 2024.

[79] Macquarie Dictionary online edition, Pan Macmillan Australia, 2024.

[80] Macquarie Dictionary online edition, Pan Macmillan Australia, 2024.

[81] Shouman, [72]-[73], [107], [109].

[84] 2016 Study,1.3, Study Area map, page 8.

[86] Having regard to clause 72.04 of the Scheme and its associated Schedule.

[87] Submissions on behalf of the Applicant for Review, 29 July 2024, [41].

[89] 2005 Study, section 1.2, page 6.

[107] Macquarie Dictionary online edition, Pan Macmillan Australia, 2024

[112] [2023] VSC 586.

[113] Macquarie Dictionary online edition, Pan Macmillan Australia, 2024.

[114] [2019] VCAT 2020.

[115] Macquarie Dictionary online edition, Pan Macmillan Australia, 2024.

[117] For the purposes of Brunswick Investment.