1. Before the development starts, amended plans to the satisfaction of the responsible authority must be submitted to and approved by the Responsible Authority. When the plans are endorsed they will then form part of the permit. The plans must be substantially in accordance with the permit application plans but modified to show:
   • (a) Plans and elevations clearly showing the extent of demolition.
   • (b) Details of where rooftop planting is proposed.
   • (c) Details of the proposed awning along Johnston Street façade.
   • (d) Screening treatment or techniques to the northern side of the balconies to units 410, 411, 509, 510, 609, 610, 709, 710, 807, 808, 903 and 904 to limit downward views into unit 6/214 Argyle Street, Fitzroy to the rear of the site.
   • (e) Screening between all abutting balconies to comply with Standard B23 of Clause 55.
   • (f) All two bedroom units to include a minimum of 8 square metres of balcony space with a minimum width of 1.6 metres to any balcony. Where two balconies are proposed for a unit, one of the balconies must be a minimum of 7 square metres in area with a minimum width of 1.6 metres.
   • (g) The location of all plant and equipment, with no air-conditioning units to be placed on balconies of less than 8 square metres except where a unit has two balconies. Where a unit has two balconies, plant and equipment must be placed on the smaller of the two balconies.
   • (h) One storage space per unit, with each space to be a minimum of 3 cubic metres.
   • (i) 165 bicycle spaces including specifications and including 6 bicycle spaces on the street.
   • (j) Sections at 1:20 through the crossovers to the basement and loading bay, to show the crossover and ramp profile. The section must show the ramp, new vehicle crossing and the existing kerb and channel and road pavement of Gore Street (up to the centre line of the road).
   • (k) Installation of a convex mirror, or similar device on the south side of the entrance to the basement car park.
   • (l) Installation of two convex mirrors at the loading dock doorway wholly contained within the site.
   • (m) Tactile indicators to be removed from the pedestrian refuge areas.
   • (n) The relocation of the electricity pole in Gore Street to allow for the crossover, with the location of the light pole to be approved by the relevant authorities.
   • (o) Areas to be set aside for external artwork along the ground level wall facing the laneway to the east or other suitable location. Final details of the artwork may be submitted as part of condition 15.
   • (p) A full schedule of materials and finishes including samples and coloured set of elevations and perspectives.
   • (q) Any alterations required as a result of conditions 4 and 6.
2. 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.
3. As part of the ongoing consultant team, Hayball Architects or an architectural firm to the satisfaction of the Responsible Authority must be engaged to:
   • (a) oversee design and construction of the development; and
   • (b) ensure the design quality and appearance of the development is realised as shown in the endorsed plans or otherwise to the satisfaction of the Responsible Authority.
4. Before the demolition commences, a structural report and plans to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the structural report and plans will be endorsed and will form part of this permit. The structural report and plans must be prepared by a suitably qualified structural engineer, or equivalent, and demonstrate the means by which the retained portions of building will be supported during demolition and construction works to ensure their retention.
5. The provisions, recommendations and requirements of the endorsed structural report must be implemented and complied with to the satisfaction of the Responsible Authority.
6. Before the demolition commences, conservation documentation to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the conservation documentation will be endorsed and will form part of this permit. The conservation documentation must include, but not be limited to, the following:
   • (a) A fully dimensioned plan at a scale of no less than 1:20 prepared by a suitably qualified architectural historian detailing the reconstruction, restoration and works to the original heritage fabric. This plan must show:
     • (i) The removal of the tiles from the Gore Street façade.
     • (ii) The removal of paint from the retained portion of building fronting Johnston Street.
     • (iii) The restoration of the MacRobertson sign and its location in situ.
     • (iv) The retention of the cornice across the façade including that across the central bay below the retained MacRobertson sign.
     • (v) The restoration, reconstruction of the Multi-paned windows.
   • (b) A statement outlining the measures to be taken to minimize the impact of the works on the original fabric.
7. The provisions, recommendations and requirements of the endorsed conservation documentation must be implemented and complied with to the satisfaction of the Responsible Authority.
8. Before demolition commences, a detailed and annotated photographic record of the existing buildings in their context must be submitted to and approved by the Responsible Authority as a record of the buildings. The photographs must:
   • (a) include the interior and each external elevation of the buildings;
   • (b) be submitted in black and white format; and
   • (c) be taken by a suitably qualified heritage photographer.
9. Before the development commences, an amended Sustainable Management Plan to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the amended Sustainable Management Plan will be endorsed and will form part of this permit.

The amended Sustainable Management Plan must be generally in accordance with the Sustainable Management Plan prepared by Ark Resources and dated 23 March 2015, but modified to include or show:

(a) A 35,000 litre water tank.

(b) A 6.4 star NatHERS rating for dwellings or a 4 star Green Star Multi Residential rating whichever is the higher.

(c) 159 bicycle spaces.

(d) The non-residential component to be 10% above BCA for energy efficiency.

(e) Dual chute for the separate disposal of general waste and recyclables.

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.
2. Before the development commences, an amended Acoustic Report to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the amended Acoustic Report will be endorsed and will form part of this permit. The amended Acoustic Report must be generally in accordance with the Acoustic Report prepared by Renzo Tonin and dated 23 March 2015, but modified to include (or show, or address):
   • (a) Protect nearby dwelling occupants (including future residents within the building) with a direct interface to commercial tenancies from associated commercial noise source, including but not limited to loading dock, cool rooms, plant and equipment;
   • (b) Mechanical plant equipment and ventilation mechanisms installed or constructed as part of the development.
   • (c) The agent of change principle requirement within clause 52.43 (Live Music and Entertainment Noise) of the Yarra Planning Scheme.
3. The provisions, recommendations and requirements of the endorsed Acoustic Report must be implemented and complied with to the satisfaction of the Responsible Authority.
4. Before the development commences, an amended Waste Management Plan to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the amended Waste Management Plan will be endorsed and will form part of this permit. The amended Waste Management Plan must be generally in accordance with the Waste Management Plan prepared by Leigh Design and dated 1 September 2014, but modified to include:
   • (a) The altered waste collection procedures as detailed in the Waste Management Plan prepared by Leigh Design and dated 26 October 2014.
   • (b) Dual chute for the separate disposal of general waste and recyclables.
5. The provisions, recommendations and requirements of the endorsed Waste Management Plan must be implemented and complied with to the satisfaction of the Responsible Authority.
6. Before the occupation of the building, a Public Art Management Plan to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the Public Art Management Plan will be endorsed and will then form part of this permit. The Public Art Management Plan must include, but not be limited to, the following:
   • (a) The commissioned artist;
   • (b) Description of art work, including:
     • (i) Material;
     • (ii) Colours;
     • (iii) Lighting etc;
   • (c) Details of the installation process;
   • (d) Details of art work maintenance schedule; and
   • (e) Historical reference to the former lyric theatre.
7. 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 by Tract and dated 24 February 2015, but modified to include (or show):
   • (a) Five trees within the footpath along Johnston and Gore Streets. The location and species must be to the satisfaction of the Responsible Authority and planting must be undertaken by the Responsible Authority.
   • (b) Details of planting within the roof garden on Level 9.
8. Before the building is occupied, or by such later date as approved in writing by the Responsible Authority, the landscaping works shown on the endorsed Landscape Plan must be carried out and completed to the satisfaction of the Responsible Authority. The landscaping shown on the endorsed Landscape Plan must be maintained by:
   • (a) implementing and complying with the provisions, recommendations and requirements of the endorsed Landscape Plan;
   • (b) not using the areas set aside on the endorsed Landscape Plan for landscaping for any other purpose; and
   • (c) replacing any dead, diseased, dying or damaged plants,

1. Before the development starts, the permit holder must make a one off contribution to the Responsible Authority to be used for the planting of trees in Johnston and Gore Streets (as shown on the endorsed plans). The amount of the contribution must be agreed to by the permit holder and the Responsible Authority.
2. Before the development commences, a Car Park Management Plan to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the Car Park Management Plan will be endorsed and will form part of this permit. The Car Park Management Plan must address, but not be limited to, the following:
   • (a) the number and location of car parking spaces allocated to each tenancy;
   • (b) the method to be used to ensure that only cars associated with the development use the car park;
   • (c) the management of the spaces which are to be shared between uses;
   • (d) security arrangements for occupants of the development, including details on how residential visitors are to access car parking;
   • (e) details of way-finding, cleaning and security of end of trip bicycle facilities;
   • (f) policing arrangements and formal agreements if pat of the car park is to be provided on a paid basis;
   • (g) a schedule of all proposed signage including directional arrows and signage, informative signs indicating location of disabled bays and bicycle parking, exits, restrictions, pay parking system etc; and
   • (h) details regarding the management of loading and unloading of goods and materials.
3. The provisions, recommendations and requirements of the endorsed Car Park Management Plan must be implemented and complied with to the satisfaction of the Responsible Authority.
4. 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 basement car park, pedestrian entry and the laneway to the east must be provided. Lighting must be:
   • (a) located;
   • (b) directed;
   • (c) shielded; and
   • (d) of limited intensity,

1. Before the development is occupied, or by such later date as approved in writing by the Responsible Authority, all screening and other measures to prevent overlooking as shown on the endorsed plans must be installed to the satisfaction of the Responsible Authority. Once installed the screening and other measures must be maintained to the satisfaction of the Responsible Authority.
2. 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.
3. Finished floor levels shown on the endorsed plans must not be altered or modified without the prior written consent of the Responsible Authority.
4. All buildings and works must be maintained in good order and appearance to the satisfaction of the Responsible Authority.
5. The amenity of the area must not be detrimentally affected by the use or development, including through:
   • (a) the transport of materials, goods or commodities to or from land;
   • (b) the appearance of any buildings, works or materials;
   • (c) the emission of noise, artificial light, vibration, smell, fumes, smoke, vapour, steam, soot, ash, dust, waste water, waste products, grit or oil; or
   • (d) the presence of vermin,

1. Before the building is occupied, any wall located on a boundary facing public property at the ground level and level 1 must be treated with a graffiti proof finish to the satisfaction of the Responsible Authority.
2. All pipes, fixtures, fittings and vents servicing any building on the land must be concealed in service ducts or otherwise hidden from view 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, the areas 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;
   • (c) treated with an all-weather seal or some other durable surface; and
   • (d) line-marked or provided with some adequate means of showing the car parking spaces,

1. The development must comply at all times with the State Environment Protection Policy - Control of Noise from Commerce, Industry and Trade (SEPP N-1).
2. Except with the prior written consent of the Responsible Authority, the sale of liquor may only occur between the following hours:
   • (a) 10am and 11pm on Sundays;
   • (b) 12noon and 11pm on Anzac Day; and
   • (c) 9am and 11pm on any other day.
3. Except with the prior written consent of the Responsible Authority, delivery and collection of goods to and from the land associated with the sale of liquor may only occur between 7am and 10pm on any day.
4. Before the building is occupied, or by such later date as approved in writing by the Responsible Authority, the new vehicle crossings must be constructed:
   • (a) in accordance with any requirements or conditions imposed by Council;
   • (b) at the permit holder's cost; and
   • (c) to the satisfaction of the Responsible Authority.
5. Before the building is occupied, or by such later date as approved in writing by the Responsible Authority, any redundant vehicular crossing 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.
6. Prior to the completion of the development, subject to the relevant authority's consent, the relocation of the light pole necessary to facilitate the development must be undertaken:
   • (a) in accordance with any requirements or conditions imposed by the relevant authority;
   • (b) at the permit holder's cost; and
   • (c) to the satisfaction of the Responsible Authority.
7. 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:
   • (a) at the permit holder's cost; and
   • (b) to the satisfaction of the Responsible Authority.
8. Before the building is occupied, or by such later date as approved in writing by the Responsible Authority, six (6) bike racks must be installed:
   • (a) at the permit holder's cost; and
   • (b) in a location and manner,

Department of Transport (conditions 38 and 39 only)

1. The permit holder must take all reasonable steps to ensure that disruption to bus operations along Johnston Street is kept to a minimum during construction of the development. Foreseen disruptions to bus operations during construction must be communicated, with mitigating measures, to Public Transport Victoria and bus operators fourteen days (14) prior.
2. The existing bus stop and associated infrastructure on Johnston Street must not be altered without the prior consent of Public Transport Victoria. Any alterations including temporary works or damage during construction must be rectified to the satisfaction of Public Transport Victoria at the full cost of the permit holder.
3. Before the development commences, save for demolition, bulk excavation and site preparation/remediation works, the owner must submit to the satisfaction of the Responsible Authority either:
   • (a) A site assessment prepared by a suitably qualified environmental professional that determines if an environmental audit is required and, if not, the assessment:
     • (i) confirms that the site is or can be made suitable for sensitive uses (residential); and
     • (ii) specifies requirements to effectively manage contamination prior to the occupation of the land for residential use; or
   • (b) A certificate of environmental audit must be issued for the land in accordance with Part IXD of the Environment Protection Act 1970, or
   • (c) An environmental auditor appointed under the Environment Protection Act 1970 must make a statement in accordance with Part IXD of that Act that the environmental conditions of the land are suitable for the residential use.
4. Any ongoing groundwater management and abatement of groundwater contamination must be in accordance with all requirements of any Clean Up Notice issued by the Environment Protection Authority under section 62A of the Environment Protection Act 1970, or any other relevant written notice or direction issued by the Environment Protection Authority, to the satisfaction of the Environment Protection Authority.
5. A copy of the site assessment, certificate of environmental audit and/or statement, and the complete audit report and audit area plan must be submitted to the Responsible Authority.
6. The use and development allowed by this permit must comply with the directions and conditions of any site assessment or statement of environmental audit issued for the land.
7. Prior to the occupation of dwellings a letter must be submitted to the Responsible Authority by an Environmental Auditor accredited with the EPA, to advise that all construction and remediation works necessary and required by a site assessment or an environmental audit or statement have been carried out.
8. Any handling and disposal of contaminated site soil must be in accordance with the requirements of any statement of environmental audit issued for the land, the requirements of the Environment Protection Authority and the Environment Protection Act 1970.
9. 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 plan will be endorsed and will form part of this permit. The plan must provide for:
   • (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:
     • (i) contaminated soil;
     • (ii) materials and waste;
     • (iii) dust;
     • (iv) stormwater contamination from run-off and wash-waters;
     • (v) sediment from the land on roads;
     • (vi) washing of concrete trucks and other vehicles and machinery; and
     • (vii) 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:

(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.

1. Except with the prior written consent of the Responsible Authority, demolition or construction works must not be carried out:
   • (a) Monday to Friday (excluding public holidays) before 7 am or after 6 pm;
   • (b) Saturdays and public holidays (other than ANZAC Day, Christmas Day and Good Friday) before 9 am or after 3 pm; or
   • (c) Sundays, ANZAC Day, Christmas Day and Good Friday at any time.
2. This permit will expire if:
   • (a) the development is not commenced within two years of the date of this permit; or
   • (b) the development is not completed within four years of the date of this permit.
   • (c) the sale of liquor and dwelling use are 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] At the commencement of the hearing Mr. Pitt tabled a signed agreement of consent between SMA Projects and Mr. Blakey that in the event a planning permit is directed to be issued Mr. Blakey withdraws his statement of grounds, subject to the permit including a condition that "screening treatment or techniques to the northern side of the balconies of units 410, 411, 509, 510, 609, 610, 709, 710, 807, 808, 903 and 904 to limit downward views into unit 6/214 Argyle Street Fitzroy to the rear".

[2] We have considered the submissions of all the parties that appeared, all the written and oral evidence, all the exhibits tendered by the parties, and all the statements of grounds filed. We do not recite or refer to all of the contents of those documents in these reasons.

[3] Council's notice of refusal and its draft conditions identify the street address as 239 - 243. This is the address we have used. We note a number of witness statements and submissions made to us use different street numbering, varying from 239 - 243/245/247 or 249 Johnston Street.

[4] Council also refused the application on the ground that it did not support the demolition of the Lyric Theatre. By letter dated 19 March 2015 from Maddocks, Council advised the Tribunal it withdrew this ground of refusal.

[5] We note objector review rights are limited to the consideration of the built form against the heritage overlay as buildings and works under Clause 32.01 - 4 are exempt from notice and review.

[6] The theatre operated from its construction in 1914 to approximately 1938. For the past 78 years it has been used variously as storage by MacRobertson chocolates, a furniture showroom and in more recent times as a shop.

[8] A plan he noted as being prepared by A J Cooper Architect, 2 January 1958 for alterations and additions to 241 - 265 Johnston Street, Fitzroy for MacRobertson.

[9] See Figure 1 to Clause 21.03 and Figure 17 of Clause 21.08-7.

[11] Ashlyn Enterprises Pty Ltd v Yarra CC [2003] VCAT 87.

[14] Boroondara CC v 1045 Bourke Road Pty Ltd [2015] VSCA paragraph 37 of Warren CJ.

[15] Strategy 14.3 of local policy 21.05-1.

[16] Strategy 14.6 of local policy 21.05 - 1.

[17] Strategy 17.2 of local policy 21.05 - 2.

[18] Except where it formed the 8 storey corner element.

[19] Source: http://profile.id.com.au/yarra/household-size accessed 22 April 2015.