The council submitted the financial feasibility of this proposal is a private investment issue, and that the applicant's attempt to present it as a community benefit issue should be rejected by the Tribunal.

The Tribunal concluded that there might be limited circumstances in which the financial feasibility of a proposal may be a relevant factor, or more likely, one of a range of factors that may form part of the balancing exercise the Tribunal is required to undertake. It was not a relevant factor in this case (Paragraphs 68 - 80).

With respect to the expert evidence presented by the applicant, the Council submitted that the Tribunal should give limited weight to that evidence because each of the witnesses had formed part of the team that had been involved in this proposal from the early stages of the permit application process. The council submitted that the evidence should be treated with caution because the witnesses are not independent, and in effect are advocating before the Tribunal, for a product they have helped develop.

The weight that the Tribunal accords to each witness that appears before it, needs to be considered in the context that the Tribunal is an expert Tribunal. In assessing the weight to be given to evidence, the Tribunal not only needs to be alert to the extent of the witnesses involvement in the project, but it also needs to be realistic about the extent to which a witness engaged by a party to a proceeding, can ever be completely impartial. The Tribunal must assume the responsibility of assessing the credibility and reliability of the witness by focusing on the merits of the evidence being presented.

Application under Section 77 of the Planning and Environment Act 1987 (the Act) to review a decision to refuse a permit.

A Zamponi, Dr E Brennan & L Anderson, G Batey, E Long, J Oglesby, L Vernon, J Harmer, D Dalziel, J Taylor, D Campbell, H Crosbie, F Molinaro, T Jordan, J Vukasinovic, T Willson, N Murnaane & A McAllister, M Jones, A Sanderson, J O'Connell, D Hazy, M O'Connell, R Stratford, L Genovesi, O Princi, S & D Ellinhaus, G Eckersley, A Jones, S McKenzie, H Gradman, J Rayner, D Cronin, A Lander, O & K West, R Princi, F Princi, V Princi, A Castles, J Mori, J Bertuzzi, S Davison, C Goodman, N Harding.

SMA Projects Pty Ltd v Yarra CC & Ors (Includes Summary) (Red Dot) [2013] VCAT 436

1. The decision of the Responsible Authority is set aside.
2. In permit application PLN11/0950 a permit is granted and directed to be issued for the land at 1-21 Robert Street, Collingwood. in accordance with the endorsed plans and on the conditions set out in Appendix A. The permit allows:
   • The construction of buildings and works, the use for food and drinks premises (café) and a convenience shop (deli), a reduction in the car parking requirements associated with the dwellings, the food and drinks premises (café) and the convenience shop (deli), a waiver of the loading bay requirement and a waiver of the bicycle change room requirement.

Mr Adrian Finanzio SC of counsel and Mr Ian Pitt SC of Best Hooper solicitors.

Mr Pitt and Mr Finanzio called the following witnesses:

1. Ms A Ring, town planner
2. Mr M Sheppard, urban designer.
3. Mr R Papaleo, economic feasibility
4. Mr J Talacko, Environmentally sustainable design consultant.
5. Mr T De Young, traffic engineer.
6. Mr P Lovell, heritage consultant.
7. Mr A Wenn, landscape architect

Expert witness statements prepared by Mr M Eeady and Mr H Lam were tabled but the authors were not called to give evidence

Ms M Quigley SC of counsel, instructed by Ms M Marcus of Maddocks Solicitors.

Mr J Livingstone, town planner appeared on behalf of a number of objectors, whose details were provided to us.

Ms J Taylor appeared on behalf of the Collingwood Historical Society.

Mr J Harmer appeared on behalf of a number of respondents, whose details were provided to us. Mr Harmer spoke in support of the grant of a permit.

Ms E Long appeared on her own behalf and spoke in support of the grant of a permit.

It is proposed to construct a mixed use, but predominantly residential development on a disused industrial site, known as the Yorkshire Brewery site. A number of buildings that are of heritage significance remain on the site and these are to be restored, adapted and integrated into the proposed development. Silos and some buildings are to be demolished. Apart from this, the key elements of the proposal incorporate the construction of new residential buildings ranging in height from 3 storeys to 17 storeys. Two basement levels are proposed. A neighbourhood square is proposed at ground level. A total of 350 dwellings (1, 2 and 3 bedrooms) and 336 parking spaces are proposed. The majority of the parking is to be provided in independently operating stacker systems.

Application under Section 77 of the Planning and Environment Act 1987 (the Act) to review a decision to refuse a permit

Clause 43.02 Design and Development Overlay (DDO2).

The site is included on the Victorian Heritage Register (Ref. No H807)

Clause 32.04-1: a permit is required for use as a café (food and drink premises nested within retail premises).

Clause 32.04-1: a permit is required for use as deli (convenience shop nested within shop).

Clause 32.04-7: a permit is required for buildings and works for a use in section 2 of Clause 32.04-1.

Clause 32.04-5: a permit is required to construct two or more dwellings on a lot.

Clause 43.02-2; A permit is required to construct a building or construct or carry out works.

Clause 43.01: a permit is required to demolish a building, construct a building or construct or carry out works. Because the site is included on the Victorian Heritage Register no permit is required to develop a heritage place (Clause 43.01-2). Heritage Victoria has issued a permit (Permit No. P16751 as amended, dated 10 September 2012) for the proposed development.

Clause 52.06: A permit is required to reduce the requirement to provide car parking at the rate specified in Table A to Clause 52.06-5.

Clause 52.07: a permit is required to waive the requirement to provide loading and unloading for commercial vehicles.

Clause 52.34-3: a permit is required to waive the requirement to provide a bicycle change room.

The review site is located to the rear (east) of commercial buildings that have a frontage to Wellington Street, Collingwood.

The site is commonly known as the Yorkshire Brewery site. Robert Street borders the site to the north, and Waterloo Street to the south. Commercial buildings abut the site to the east, separating the review site from Rokeby Street.

A north-south ROW crosses the site's western end (within its title) between Robert Street and Waterloo Road and provides access via another east-west ROW to Wellington Street.

The site has a generally rectangular configuration, and an area of about 4560 m2.

The site forms part of an old industrial precinct of Collingwood, an area that in recent years has become more mixed in use and character.

Spurling v Development Underwriting (Vic) Pty Ltd [1973] VicRp 1; [1973] VR 1 at 8-12. Richmond Icon Pty Ltd v Yarra CC (includes Summary) (Red Dot) [2011] VCAT 2175. Richmond Icon v Yarra CC VCAT Reference P2732/2012, (14 March 2013). Abbotsford Joint Venture Pty Ltd v Yarra CC & Ors [2012] VCAT 146.

1. This is an application to review the decision of the Responsible Authority to refuse permission for the redevelopment of the Yorkshire Brewery site at 1-21 Robert Street, Collingwood. The application proposes a predominantly residential development incorporating the construction of new residential buildings ranging in height from 3 storeys to 17 storeys. A number of buildings that are of heritage significance remain on the site and these are to be restored, adapted and integrated into the proposed development. Silos and some buildings are to be demolished[1].
2. The Responsible Authority issued a Notice of Refusal to Grant a Permit for the following reasons:
   1. The scale and height of the proposed development does not fit into the existing or emerging built form context as envisaged [at] clause 15.01 (urban Environment) and clause 21 .05-2 (Urban Design).
   2. The proposed development will be visually dominating in the surrounding streetscapes, failing to comply with the Neighbourhood Character of the precinct as set out in [clause] 15.01-5 (Cultural Identity and Neighbourhood Character) and [clause] 21.05-2 (Urban Design).
   3. The proposal does not achieve a reasonable level of internal amenity due to overshadowing of the neighbourhood square and windows and private open space areas within the development as set out in clause 15.01-5 (Urban Environment).
   4. The proposal is an overdevelopment of the site, and contrary to the proper and orderly planning of the site as set out in Clause 65

1. The proposal fails to provide adequate loading facilities on site, contrary to clause 52.07 (Loading and Unloading of vehicles) including waste collection.
2. The council's refusal of the application was made notwithstanding a recommendation from council officers to grant a permit subject to conditions.
3. The permit applicant has applied to the Tribunal to review the council's decision.
4. A number of objectors to the proposal have served statements of grounds, and they are parties to this proceeding. We have also received statements from persons who support the grant of a permit. We have considered these submissions in arriving at our decision.
5. At the commencement of the hearing, Ms Quigley SC who appeared in this case on behalf of the council raised a question of law. The Tribunal was reconstituted to include a legally qualified member for the purpose of deciding the question of law.
6. Member Cook determined the question of law and provided oral reasons for her decision. Written reasons were subsequently provided to the parties during the course of the hearing.
7. The key planning issues in this case can be categorised as follows:
   1. Is the proposal acceptable having regard to the site's physical and strategic context?
   2. Are the car parking, loading/unloading and waste management impacts acceptable?
8. The Yorkshire Brewery site has been the subject of a number of redevelopment proposals since it ceased operating as a brewery in 1996. The relevant details of those proposals and their approvals were provided to us during the course of the hearing, and it is not necessary for us to repeat that material in any significant detail here. In each proposal however, some level of residential development was proposed, and each approval incorporated requirements for those buildings that contribute to the significance of the heritage place to be restored, adapted, reused and integrated into the development.
9. The permit applicant submits that the proposal is acceptable having regard to the policies and provisions of the planning scheme. The review site is a strategic redevelopment site and the applicant submits that the planning scheme contemplates a higher built form on this site. The applicant submits that the proposal responds appropriately to the site's strategic and physical context.
10. Relevantly, the applicant in this case also submits that previous proposals for this site have not come to fruition at least in part because of the financial cost associated with the restoration of the heritage buildings. Put simply, the applicant submits that the previously approved proposals did not generate a sufficient financial return to the applicant to justify the development proceeding. Consequently, the applicant submits that while a development of the scale and density now proposed is supported by the strategic and physical context of the site, it is also necessary to deliver a financial return sufficient to ensure that the public benefit derived from the restoration of the heritage buildings is delivered.
11. The council and the objectors are opposed to the grant of a permit. They submit that the height, bulk and scale of the development does not respond appropriately to the policy framework, and that it is not acceptable in the context of the surrounding streetscape and "skyscape". Concerns are also expressed about the traffic, car parking and waste management impacts of the proposal.
12. The council further submits that the applicant's reliance on the financial feasibility of the proposal as a basis for achieving a public benefit is disingenuous. The council submits that the financial feasibility of this proposal is a private investment issue, and that the applicant's attempt to present it as a community benefit issue should be rejected by the Tribunal.
13. The council also submits that the Tribunal should give limited weight to expert evidence presented by the applicant. The council questions the independence of the expert witnesses, on the basis that each of them has been involved in this proposal from the early stages of the permit application process. The council submits that their evidence should be treated with caution because the witnesses are in effect advocating before the Tribunal, for a product they have helped develop.
14. We have concluded in this case, that a permit should issue for this proposal. We have reached this conclusion because we are satisfied that this proposal does achieve acceptable policy and built form outcomes. The site is identified in the planning scheme's local policy framework as a strategic redevelopment site, on which higher built forms are contemplated. The height and form of the proposal also performs well when measured against council land use, built form and design policies.
15. The restoration and adaptive reuse of the heritage buildings on the site is an outcome supported by the planning scheme. A clear community benefit flows from the restoration of the heritage buildings. In fact, we think that a development of this site that did not make provision for the restoration of the heritage buildings would be highly problematic. The restoration of the buildings however, is not a precondition for our conclusion that a building of 17 storeys in height and incorporating 350 dwellings is acceptable on this site.
16. Our reasons for directing the issue of a permit are set out below.

Is the proposal acceptable having regard to the site's physical and strategic context?

1. This is a large site. All parties acknowledged that it is a strategic redevelopment site, both as defined in Clause 16.01-3 and as specifically identified in Clause 21.03, Figure 2. It is a site within easy walking distance of the (Smith Street) Major Activity Centre, it enjoys good access to public transport (trams along Victoria Parade and other opportunities). It is a site capable of providing more than ten dwellings[2].
2. Because of the site's attributes, including its designation as a strategic redevelopment site, the development of the site is expected to be at a scale and intensity that makes a contribution to the achievement of both State and local housing and settlement policies. The council's submissions that the City of Yarra is already making a substantial contribution toward the achievement of urban consolidation policies and that there is no strategic imperative for the development of this site to the scale and intensity proposed, needs to be considered in this context. The designation of the site as a strategic redevelopment site, is significant and relevant because the local policy frameworks states that it is council's intention to accommodate the majority of housing growth and development within the municipality on those sites[3].
3. The subject site is not affected by any Design and Development Overlay. This site therefore is not subject to a specification of preferred height, in the way that surrounding sites are. DDO11 for example, which applies to land immediately surrounding the review site to the north, east and south, encourages development with street facades of 3-4 storeys and, subject to design considerations, taller built forms on larger sites.
4. Relevant policies relating to acceptable building height are set out in Clauses 21.03 and 21.05, while Clauses 21.08[4], 22.02[5] and 22.03[6] also have some relevance.
5. Clause 21.03 contains the following built form vision.
   • Yarra will have a distinctive identity as a low-rise urban form, with areas of higher development and highly valued landmarks
6. Clause 21.05 amplifies this policy by stating that (at objective 17) Yarra's identity as a low-rise urban form with pockets of higher development is to be retained. Strategy 17.1 states that development outside activity centres and not on Strategic Redevelopment Sites should reflect the prevailing low-rise urban form. Strategy 17.2 states that Development on strategic redevelopment sites or within activity centres should generally be no more than 5-6 storeys unless it can be demonstrated that the proposal can achieve specific benefits such as:
   • Significant upper level setbacks
   • Architectural design excellence
   • Best practice environmental sustainability objectives in design and construction
   • High quality restoration and adaptive re-use of heritage buildings
   • Positive contribution to the enhancement of the public domain
   • Provision of affordable housing.
7. No parties opposed the concept of higher buildings on this site; the dispute related to the appropriate maximum height, with the Collingwood Historical Society arguing that buildings should not exceed the parapet of the Brew Tower and Mr. Czarny, while being less specific, considered that the existing silos, equivalent to an 11-storey building, provide "a reasonable starting point". Mr. Livingston also submitted that buildings should not exceed 11 storeys height.
8. Clause 21.03 seeks to maintain the City's urban character as one of low-rise urban form with pockets of higher development. The proposal satisfies this objective: it involves a pocket of three tall towers and will be set in an area of low-rise buildings. Moreover, Clauses 21.03 and 21.05 provide no specific guidance as to the appropriate location or distribution of pockets of taller development, other than the references to activity centres and strategic redevelopment sites. The designation of this site as a strategic redevelopment site therefore is very relevant in terms of differentiating it from other sites and in providing a strong indication that this site is one upon which a pocket of higher development can be legitimately considered_._
9. Having concluded that this site is suitable to accommodate a pocket of higher development, the issue about what height constitutes an acceptable height, remains in dispute.
10. No policy, directly or implicitly, provides us with useful guidance as to the appropriate height of buildings on this site. Policy also does not refer to the desirable proportions of buildings within these "pockets of higher development".
11. Parties sought, by referring to various examples of pockets of high-rise buildings within the City, to refine and proscribe this concept in relation to the acceptable height or proportions of tall development on the subject site and we discuss these points later.
12. Ms. Quigley submitted that while the proposal might satisfy some of the tests of Strategy 17.2 of Clause 21.05, the listed tests are not

... a pre-condition to considering development above 5-6 storeys and their achievement is not in itself sufficient reason to allow a taller building.

1. The special benefits included in Strategy 17.2 and the role they play in decision making about the height of buildings, has been considered by the Tribunal in a number of recent cases.
2. In Richmond Icon v Yarra CC[7] the Tribunal commented that the special benefits identified in Strategy 17.2 are not exhaustive and they do not constitute criteria with which compliance must be achieved to qualify for a height greater than 5/6 storeys. The Tribunal noted that criteria or benefits other than those included in Clause 21.05 could be used to demonstrate that a building higher than 5/6 storeys is acceptable, on any given site. Similarly, the Tribunal commented that there will inevitably be circumstances in which the benefits that are included in Clause 21.05 have varying degrees of relevance to a particular proposal[8].
3. Interestingly, most of the special benefits in strategy 17.2 have no nexus with the visual effects of a building's height. In any event, we have concluded, and we explain why later, that the proposal performs well when assessed against several of these special benefits. Of itself, this does not lead to an inevitable conclusion that this proposal is acceptable, but it is a relevant consideration in our assessment of this proposal's acceptability.
4. Mr. Czarny provided us with a useful, oblique aerial view of the Collingwood portion of the City to illustrate its urban-form character (this view was northward from Victoria Parade and included an area extending from Smith Street to Hoddle Street. This view showed that there are a number of existing pockets of taller development that are widely dispersed and are reasonably varied in detail and scale.
5. Objective 17 relates to an image of the City that can only be appreciated as one moves around it. There will be some, though probably few, places other than from the taller buildings themselves where one might appreciate this overall image. Rather, the observer will find many ground-level locations where there will be no view of a pocket of taller development and some where one might see one such pocket, but rarely any where one might see more that one pocket at the same time. The character of the tall buildings themselves varies, with the higher buildings being the various Office of Housing tower blocks. The immediate context of the various pockets of taller development also varies widely, as does their siting: from our inspection we noted that in some cases wide gardens surround a tower, in others there are gardens to some aspects of the towers and, in some cases, towers stand in an immediate built-up context.
6. Where there is no strategic guidance about the appropriate height of pockets of taller development (in those cases where the relevant tests allow greater heights in principle), local context becomes increasingly important as a guide to appropriate height. However, as most taller development will generally, by one measure, be incongruent with its low-rise surroundings, local context would often, it seems to us, be unhelpful in establishing an appropriate greater height (i.e. an appropriate degree of incongruity).
7. More generally, however, the question as to how one should determine an appropriate height for a pocket of taller development remains open as a relevant planning consideration. We might usefully approach this question by reframing the original one: at what height would an already incongruous tall building become unacceptably disrespectful of its low-rise context?
8. Detailed design of the proposal, together with factors relating to the form and nature of the surrounding low rise context, are relevant factors that might influence a judgement about the acceptability of the height. It is also relevant that this municipality contains a number of taller buildings of equivalent or even greater height or bulk than this proposal, notably several Office of Housing towers. In the City's broad context, therefore, this proposal already has some precedents and is to that extent congruent with these examples.
9. The council and the objectors submit that the proposed building assumes a height and bulk commensurate with a Central Activity District context, an outcome that local policy discourages, and that this does make the building incongruent in the local context. We disagree with those submissions. As we have concluded above, the height of the proposed building is commensurate with existing taller buildings in the municipality, and we are not persuaded that the proposal adopts a scale and height one would expect to find only in the Central Activity District.
10. The council and objectors also submit that with respect to the height of the building, it is appropriate for us to follow the approach of the Tribunal in Abbotsford Joint Venture Pty Ltd v Yarra CC & Ors[9]. In that case, the Tribunal found that a proposal for a 17 storey building in Johnston Street Abbotsford, was unacceptable. In that case, the Tribunal was required to determine similar issues to those before us, i.e. where there is no strategic guidance about the appropriate height of pockets of taller development, what height is too high?
11. The strategic and physical context of the site considered by the Tribunal in Abbotsford Joint Venture was significantly different to the review site in the present case. For the reasons enunciated in that decision, the Tribunal concluded that the physical and strategic context of that site did not support a development of 17 storeys. While the site was zoned Business 1, relevantly, it was a site located in a Neighbourhood Activity Centre, and it was not identified as a strategic redevelopment site under local policy.

Does the proposal meet any of the tests of Strategy 17.2?

1. We now consider the extent to which the proposal provides any of the special benefits set out in Strategy 17.2 of Clause 21.05.

Does the proposal provide significant upper level setbacks?

1. The proposal has significant upper level setbacks to its towers from some aspects, minimal from others. We do not consider that this failure to provide setbacks to all aspects of the towers is determinative of anything.
2. The towers are set back 9 metres, or in some cases much more, from Waterloo Road, to the south, are set back over 15 metres from the site's western end and 3 metres from its eastern end. The towers effectively abut Robert Street, rising sheer from the street alignment and create a height to street-width ratio for that street of up to 7:1.
3. Mr. Czarny considered that a podium should be provided along the Robert Street frontage, with a height that would established a street-wall-to-width ratio of 5:1, above which the building should be set back.
4. Robert Street is so narrow that any nearby observer could not have a comfortable view of the towers because they would loom too high above. Because of the narrowness of Robert Street, any buildings above 5 or 6 storeys height (giving a height:width ratio of about 3:1) would be too high to be readily viewable from nearby in that street. In a street as narrow as Robert Street, once a structure on the street alignment reaches a height of about 5-6 storeys, it is largely irrelevant in terms of a pedestrian's sense of scale, whether it continues upwards on that alignment or is set back.
5. We find that the Waterloo Road setback provides an ample podium effect. In other respects, we consider that the lack of podium form is acceptable.
6. Regarding the eastern and western ends of the site, the adjoining, lower-rise buildings would provide effective podiums from more distant views.

Does the proposal achieve architectural design excellence?

1. We accept that the design achieves an acceptable level of architectural design excellence.
2. The architectural quality of a building is usually held to encompass a number of different aspects of its design. In this case, and having regard to the submissions, we have considered the following as being relevant issues:
   • The aesthetic character of the buildings
   • The proportions of the three towers and their relationship to each other
   • The relationship of new buildings to the Brew Tower
   • The site layout and, in particular, the ways that people can access, move through and enjoy the site.
3. The Tribunal has previously commented on this test of architectural design excellence[10] and questioned its usefulness as a basis for deciding whether a proposal's architectural quality is acceptable. We endorse the Tribunal's comments in these previous cases. Having said that, not only is the proposal's architectural excellence one of the tests of Strategy 17.2 for accepting greater height than 5-6 storeys, but submissions and evidence were critical of a number of aspects of the proposal's architectural form. We have therefore considered this issue.
4. Mr. Czarny opined that the two principal towers are too bulky in most views, with even the narrow ends being too wide because of their "double-loaded" design[11]. It is true that the towers will not be as slender as the taller Office of Housing towers that occur in this City, particularly when the latter are viewed end-on. However, there is no policy requirement that the "taller development" of Strategy 17.2 be in the form of slender towers. This might be Mr. Czarny's aesthetic preference but it is not a policy preference and there are a number of taller developments in the City that are both tall and squat (e.g. Epworth Hospital).
5. Mr. Czarny considered that the two towers along Robert Street, of 14 and 17 storeys, should have been designed as "complementary but distinctive forms", rather than using identical architectural detailing of their elevations. He also objected to the overall architectural expression of these two towers, referring to this as a "strategy of scale ambiguity".
6. The towers are designed as a series of horizontal bands that are created by the architectural treatment of their elevations. Several floors - of two, three or four levels - are banded together using a light-coloured treatment and each of these bands is separated from the next band by a single floor level that is slightly recessed and treated in a dark colour. The whole effect is therefore of a tower formed from a stack of thick layers: two towers with strong horizontal elements.
7. We find the aesthetic treatment of the towers' elevations is acceptable. Whether this aesthetic is designed to emphasis the tower's verticality or not is a matter of design preference and we find no objective reason to prefer one form of emphasis to another.
8. Mr. Czarny considered that the gap between the 14 and 17-storey towers is too small and that, together with their similar architectural elevations, the two would read as one, creating a sense of an even bulkier form. He also considered that the within-site spacing between the towers, with the towers within the site rising as sheer walls, would create an undesirable canyon-like effect. He was also critical of the extent of shading of the Community Square and proposed that this be rectified by reducing the height of the 14-storey tower, which is the structure causing the most significant shade to this square.
9. The gap between the 14 and 17-storey tower varies between 6.7 and 8.4 metres. The gap between the 10-storey tower and the other two is 7.5 metres (to the 14-storey tower) and 9 metres (to the 17-storey tower). While these gaps might create a sense within the site of heightened density, we consider them to be acceptable. In particular, the sharp edges of the 14 and 17-storey towers would ensure that they are clearly differentiated from each other, both in internal and external views. The open spaces and walkways within the site will certainly have a distinctly urban feel and will provide the development's own particular internal character and we find that acceptable.
10. The Community Square has dimensions of about 22 metres by 14 metres (it is somewhat irregular in shape) and has direct pedestrian access from Waterloo Road while the western ROW gives it almost direct access to Wellington and Robert Streets. The permit applicant has prepared shadow diagrams for the equinox and these show that at that date the Community Square will receive little sunlight before 11:00 AM or after 3:00 PM. Between those times it will receive varying amounts of sunlight, with generally good sun penetration around noon to 1:00 PM. Mr. Czarny was questioned as to the times that the Community Square would be most used but we put little weight on his estimate (which was for morning periods). We suspect that the local social and commercial factors will mainly determine the level and times of activity in any square: the activities within it and in adjoining buildings, together with the nearby populations' preferred lifestyle. We consider that the square will not depend on high levels of activity to be attractive and its fittings and uses can be adapted to the available sunlight at different times of the year. We do not accept that the 14-storey building should be shortened to increase the available sunlight. Our examination of the shadow diagrams show that the shorter shadow would still barely clear the foot of the southern line of buildings and would offer little additional sunlight to the square at the equinox.
11. Mr. Czarny considered that the relationship between the three new towers, with their heights rising to the east and stepping back from the Brew Tower, is acceptable and that the scale and design of the light-coloured, two-storey addition to the two-storey heritage building to the south of the Brew Tower is also acceptable. However, he objected to the lack of openings (even balconies) along the southern heritage elevation facing Waterloo Road. This latter elevation consists of heritage fabric and the question of whether new openings can be placed in it is properly a matter for Heritage Victoria to determine in the first instance.
12. Mr. Czarny considered that there should be a pedestrian link across the site between Waterloo Road and Robert Street. The site has a right-of-way across its western end, connecting between Waterloo Road, Robert Street and Wellington Street and this ROW will provide access directly to the two commercial premises and the Neighbourhood Square.
13. While we understand the argument supporting the provision of a multiplicity of pedestrian routes through urban areas[12], in this case there is no clear desire line for pedestrian movements across the site and the western ROW provides one useful cross-site opportunity.
14. Mr. Czarny was also critical of the architectural detailing of the lower-level frontage along Robert Street; in particular, he sought greater "activation" to this frontage, suggesting home offices or use of first-floor balconies. He objected to the ground-floor entry-balconies, which are set about 1 metre above street level, and proposed that the ground and first-floors of the town-houses should be swapped over, so that living areas would be at first-floor, bedrooms (and entry hallways) at ground level.
15. Overall we find that the proposed layout is acceptable. The balconies (and living areas behind them) do face directly onto the street and at a close level, but we consider that residents would have the opportunity to adequately manage their privacy.
16. Mr. Sheppard, in contrast to all the above concerns, held the view that the proposal displayed "a high level of architectural design excellence", though without elaborating on which aspect of design this related.
17. In this case, we are satisfied that the proposal's overall architectural quality in terms of its aesthetics, site layout, pedestrian access and related matters is of an acceptably high standard.

Does the proposal achieve best practice environmental sustainability objectives in design and construction?

1. Mr Talacko provided evidence on this matter. His analysis of the proposal led him to conclude that the proposal is capable of achieving:

1. 4 star Green Star Multi Residential rating. 2. Apartment average energy rating of 6.6 stars.

1. The targets for all elements of the STEPS residential rating tool are exceeded.

1. Compliance is achieved with the best practice performance objectives for urban stormwater management.
2. Compliance with these standards is dependant on the implementation of a number of design and management initiatives, and we have imposed a condition requiring the permit holder to demonstrate to the council that the standards have been achieved.
3. Subject to the imposition of appropriate conditions, we are satisfied that the that the proposal achieves best-practice environmental sustainability objectives.

Does the proposal provide high quality restoration and adaptive re-use of heritage buildings?

1. A permit is not required for this proposal under the Heritage Overlay applying to the site, because the site is included on the Victorian Heritage Register. Heritage Victoria has issued a permit (Permit No. P16751 as amended, dated 10 September 2012) for the proposal.
2. Council has accepted that the "restoration and adaptive re-use of the former Brew Tower and other remnant heritage fabric is a benefit". In our view, the public benefit is considerable. The heritage fabric has clearly been falling into serious repair over recent decades and considerable effort is now required to restore it and adapt it to economic and social use.
3. The applicant submits that the cost of restoration is significant. Any attempt to embark on the necessary restoration must, in the applicant's submission, be underpinned by a commercially rational development that justifies the investment.
4. Mr Papaleo provided evidence to the effect that previous proposals for the site did not provide a sufficient rate of return on investment to justify the cost and the exposure to risk associated with the site's development, including the restoration of the heritage buildings. It was Mr Papaleo's evidence that the current proposal with a yield of 350 dwellings, will be able to generate sufficient revenue to fund the estimated cost of site remediation and heritage building restoration.
5. Ms Quigley submits that the financial feasibility issues raised by the applicant are of no relevance to a consideration of the issues this Tribunal is required to decide. Ms Quigley points out that the applicant is experienced in property development, and the price paid for the site presumably reflects the applicant's own assessment of the potential for a profitable return on investment. Ms Quigley submits that these are matters of a private economic concern and that the applicant's attempt to present these issues in the guise of a net community benefit argument, is disingenuous.
6. As we have stated above, the restoration of the heritage buildings on this site contributes to a significant community benefit. There is no dispute between the parties on that point, and the restoration of the buildings is one element of this proposal that forms part of our assessment of its overall acceptability.
7. In any given case before the Tribunal, there will be a range of factors that contribute to the Tribunal's findings about the acceptability of the proposal before it. Inevitably there are conflicting policies and objectives that the Tribunal is required to balance and integrate in arriving at a decision that is ".......in favour of net community benefit and sustainable development for the benefit of present and future generations"[13].
8. The decision of the Tribunal in The University of Melbourne v Minister for Planning provides a detailed exploration of the Tribunal's task in making findings about net community benefit and sustainable development[14].
9. We can contemplate limited circumstances in which the financial feasibility of a proposal may be a factor, or more likely, one of a range of factors that may form part of the balancing exercise the Tribunal is required to undertake. However we are not persuaded that it is a relevant factor in this case.
10. There are a number of reasons for this.
11. Firstly, we have not been presented with evidence that has persuaded us that it is this proposal, and this proposal only that can achieve the public benefit sought, i.e. the restoration of the heritage buildings. A development of this site that achieves that end could have any number of permutations. A development that generates a return on investment that delivers the public benefit, may necessitate the construction of a 17 storey building, but it may not. It is possible that a completely different development form than that now proposed could achieve the same public benefit. In this case therefore, the consideration of the financial feasibility issues raised by the applicant, does not assist the Tribunal in any way in deciding the issues that we are required to decide.
12. Secondly, in circumstances where an applicant seeks to advance a financial feasibility submission in support of the grant of a permit, it is incumbent upon the applicant to demonstrate to the Tribunal's satisfaction that the intended outcome is dependant on the financial feasibility of the project. In this case, we have not found Mr Papaleos' evidence compelling on this point. This finding is not a reflection on Mr Papaleo's skills or expertise, but rather an observation based on the limited scope of his brief, and the information made available to him. We agree with Ms Quigley's submission that Mr Papaleo's evidence amounted to little more than a review of a cash flow analysis based on an uncritical reliance on work undertaken by others.
13. Thirdly, we are in any event satisfied that this proposal is acceptable having regard to the built form and land use outcomes contemplated for this site by the applicable policy framework and provisions of the planning scheme. For the reasons we have articulated, the proposal represents an appropriate response to the site's strategic and physical context. In this case, it is not necessary for us to explore the financial aspects of the proposal in order to reach a conclusion on this point

Does the proposal make a positive contribution to the enhancement of the public domain?

1. We have commented previously about several aspects of the proposal we find acceptable in relation to public domain issues. These include the community square, the site's permeability, and the site's presentation to surrounding streets. The proposal performs to an acceptable degree in terms of its contribution to the public domain.

Does the proposal make provision for affordable housing?

1. The council submits that this proposal makes no provision for affordable housing and consequently this is a further factor that highlight's the applicants failure to establish a strategic justification for a building of such visual prominence.
2. It is Ms Ring's evidence that housing affordability is a relative term and that this proposal does make provision for relatively affordable housing.
3. The issue of housing affordability, and its relevance in the context of assessing the height of a building having regard to Strategy 17.2, has recently been considered by the Tribunal. In Richond Icon[15] the Tribunal commented as follows:

In the present case, the absence of social housing or designated low income housing in the proposal does not disqualify the proposal from meeting, or at least contributing to, the benefit specified in Strategy 17.2. In the event that the proposal did make provision for that form of housing, it would be uncontentious that the proposal achieves that benefit, but in the absence of that form of housing, a judgement still needs to be exercised about the proposal's contribution to housing affordability. Affordable housing is not necessarily the same as social or low cost housing.

Housing affordability is a difficult and complex issue. In planning terms, it is a concept that extends beyond a simple reliance on the dollar value of the property, and includes a consideration of a proposal's attributes in terms of its access to public transport, employment, retail, entertainment and commercial facilities. A proposal that increases the supply of dwellings in locations that enjoy these attributes may very well contribute to housing affordability objectives.

Some recognition of this is reflected in Clause 16.01-5 Housing Affordability of the State Planning Policy Framework. The objective and strategies of that policy include but are not limited to low income or social housing. Reference is also made to the need for diversity in housing supply, and increased housing choice. Locational factors such as the proximity of housing to jobs, transport and services are also referenced in that clause.

1. We are satisfied that the supply of one, two and three bedroom apartments on a strategic redevelopment site does make a contribution toward broad housing affordability objectives.

Are the car parking, loading/unloading and waste management impacts acceptable?

1. The council and the objectors raised a number of issues about the acceptability of the car parking, loading/unloading and waste management associated with the proposal.
2. With respect to waste management, this is an issue most appropriately managed through the impositions of a permit condition requiring the applicant to submit to the council, for approval a waste management plan. The council has expressed some concerns about the management plan submitted by the applicant, but ultimately these are issues for the council to resolve in its consideration and approval of the waste management plan. We are satisfied that there is no aspect of the proposed development that would prevent an effective waste management regime from being implemented for this site.
3. Having regard to the size of the commercial uses on site, we accept Mr De Young's evidence concerning the provision of loading/unloading facilities. A designated loading bay on site is not required to achieve an acceptable outcome.
4. Car parking in this proposal is to be provided at grade and in two basement levels. A total of 336 spaces are to be provided , comprising 325 for dwellings, 2 for the deli/cafe, and 9 for multi use[16]. The majority of the spaces rely on independent stacker systems.
5. The council and the objectors express some concern about the extent to which the proposal relies on the use of the independent stackers. They submit that the use of these can be complicated, and the implications of failure in the effective use of the stackers for a development of this scale are significant.
6. Mr De Young provided evidence on this aspect of the proposal. We also note that the proposal was subject to assessment by the council's traffic engineers and by external consultants engaged by the council. Subject to detailed design changes, the proposal was assessed as being acceptable. Mr De Young also included in his evidence correspondence from the manufacturers of the stacker system. The correspondence notes that while the use of mechanical parking systems in a project of this size is large in Australian terms, it is not uncommon in global terms. Provided the system is limited to a maximum of around 30 spaces, problems of queuing outside particular system, is unlikely to arise.
7. In this proposal the total number of spaces have been divided into 20 systems with the largest single system being 22 car spaces.
8. We accept Mr De Young's evidence with respect to these matters and with respect to his evidence about the quantum of the car parking and the traffic impact of the proposal.

1. Ms Quigley submits that the Tribunal should give limited weight to the expert evidence presented by the applicant. Ms Quigley questions the independence of the expert witnesses, on the basis that each of them has been involved in this proposal from the early stages of the permit application process. Ms Quigley submits that their evidence should be treated with caution because the witnesses are in effect advocating before the Tribunal, for a product they have helped develop.
2. The Tribunal's Practice Note (PNVCAT2 Expert Evidence) states that:

Expert witness evidence may be relied upon by the Tribunal to form an opinion about a specialised or technical matter that is relevant to the issues to be determined in a proceeding. Where expert evidence is provided, it is important that the expert's opinion is soundly based, complete, impartial and dispassionate.

1. An expert witness is defined in the following terms:

A person with specialised knowledge, skill, education, qualification, experience, and/or training in a particular field who provides evidence to the Tribunal by written report and/or being called as a witness, where a specialist opinion is required on a particular issue within the scope of his or her expertise.

An expert witness has a paramount duty to the Tribunal and not to the party retaining the expert.

An expert witness has an overriding duty to assist the Tribunal on matters relevant to the expert's expertise.

An expert witness is not an advocate for a party to a proceeding.

1. In this case, the expert witnesses called by the applicant have, to varying degrees, had an ongoing involvement with the preparation of the application presented to the council, discussions with council officers and attendance at meetings.
2. We agree with Ms Quigley that the ongoing involvement of the witnesses with the proposal, is sufficient for the Tribunal to at least be alert to the prospect that the evidence given is neither impartial nor dispassionate.
3. As Ms Quigley acknowledged however, her submissions on this point do not extend to a submission that the witnesses should be disqualified from giving evidence, but that it is relevant to the weight that the Tribunal accords to the witnesses and their evidence.
4. In a case such as this, where the applicant relies on the evidence of witnesses who have had an ongoing involvement in the evolution of a project, the applicant must accept the risk that the Tribunal may not accord the same weight to that evidence, than it might accord to a witness whose impartiality may not be subject to the same level of scrutiny.
5. The weight that the Tribunal accords to each witness that appears before it, needs to be considered in the context that the Tribunal is an expert Tribunal, the members of which are expected to bring to their task of adjudication those qualities which have qualified them for membership of the Tribunal. It is also an expertise that is valuable in assessing the weight that should be given to the opinions of an expert witness[17].
6. In assessing the weight to be given to evidence, the Tribunal not only need to be alert to the extent of the witnesses involvement in the project, but it also needs to be realistic about the extent to which a witness engaged by a party to a proceeding, can ever be completely impartial. The Tribunal must assume the responsibility of assessing the credibility and reliability of the witness by focusing on the merits of the evidence being presented.
7. In all circumstances, the evidence in this case has been assessed by us using our expertise to do so, and having regard to the written statement of each witness, their oral evidence in chief, and their answers to cross examination and to questions from the Tribunal. In this case, we have indicated throughout our reasons where we have agreed or disagreed with the evidence.

1. It follows from the above reasons that it is our conclusion that the decision of the Responsible Authority should be set aside and a permit issued.
2. In deciding the conditions to be included on the permit I have had regard to the "without prejudice" conditions provided to the Tribunal by the responsible authority and the submissions and evidence of the parties in addition to the matters that arise from our reasons.

The construction of buildings and works, the use for food and drinks premises (café) and a convenience shop (deli), a reduction in the car parking requirements associated with the dwellings, the food and drinks premises (café) and the convenience shop (deli), a waiver of the loading bay requirement and a waiver of the bicycle change room requirement

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 approved, the plans will be endorsed and will then form part of the permit. The plans must be drawn to scale with dimensions and three copies must be provided. The plans must be generally in accordance with the advertised plans (received by Council on 4 July 2012) but modified to show:

(a) level 2 of the Robert Street building (dwellings NW 2.20 to NW 2.23) setback an additional 450mm from the west title boundary;

(b) where habitable room windows and private open space areas of the following may provide internal overlooking opportunities (within a 9m radius and 45 degree arc), they are to be treated with 1.7m high, fixed obscure glazing or fixed, minimum 1.7m high, maximum 25 per cent transparent screens or the like:

• (i) central row of south facing dwellings within the 14 storey Robert Street building to the northernmost unit in the 10 storey building;

• (ii) easternmost dwellings in the cellar building and the westernmost dwellings in the stables building;

• (iii) balconies at the first floor of the 17 storey building;

• (iv) south apartments (closest exposed apartment) and the 10 storey building (closest apartment in the south-west corner);

• (v) brew tower apartments and the adjacent Robert street building to the north (level 2 and above);

• (vi) brew tower apartments and the south apartments (level 2 and above); and

• (vii) 14 and 17 storey Robert Street buildings (levels 3 and above);

(c) where habitable room windows and private open space areas of the following may provide external overlooking opportunities (within a 9m radius and 45 degree arc), they are to be treated with 1.7m high, fixed obscure glazing or fixed, minimum 1.7m high, maximum 25 per cent transparent screens:

• (i) NW G.10 - NW G.13;

• (ii) HST G.09;

• (iii) HST 1.13;

• (iv) HST 2.12; and

• (v) HST 3.10;

(d) details of all screening types proposed;

(e) identify all sliding shading louvers;

(f) the fences adjacent to Robert Street be a maximum 1.5m high and a minimum 75 per cent transparent;

(g) all elevations (internal and external) of the development, in colour;

(h) an updated schedule of all external materials and finishes (including materials samples, colours and coloured elevations/perspectives). The schedule must show the materials, colour, finish and application methods (where relevant) of all external walls, roof, fascias, window frames, glazing types, cladding, doors and fences;

(i) the location of integrated art work but not limited to location(s) within the neighbourhood square;

(j) plans to label the 'food and drinks premises' as a 'food and drinks premises (café)' and 'deli' as a 'convenience shop (deli)';

(k) provision of an externally accessible storage cage (minimum 3m³) or above bonnet store where possible;

(l) mail box locations;

(m) all transitions grades from a 1:4 (25 per cent) grade increased to 2.5m;

(n) the access way to the south basement levels increased from 6m to 6.1m wide;

(o) the outer radial of the curve to the ramp at the north-east corner of the main basement be provided with an outside kerb/clearance of 500mm in accordance with the Australian/New Zealand Standard AS/NZS 2890.1:2004 Figure 2.9;

(p) the internal access ramp for the south car park modified in order to accommodate the turning requirements of a B85 design vehicle in a single manoeuvre, in accordance with AS2890.1-2004;

(q) at least 25 per cent of all car stacker spaces provided with a height clearance of at least 1.8m, in accordance with clause 52.06-8 (Design Standard 4) of the Yarra Planning Scheme;

(r) all car stackers (except those designated as 'small car spaces' to accommodate 85th percentile vehicles;

(s) small car spaces are to be labelled on the plans;

(t) shared zone signage along Robert Street and Wellington Street, including details and location of signage;

(u) at least 1 of the 'multi use' car parking spaces to be shown as a disabled access space and to be designed in accordance with the Australian/New Zealand Standard AS/NZS 2890.6:2006;

(v) detailed drawings showing how the floor level of the level 1 basement services room can be accessed from the ramp;

(w) clear signage to show entry and exit points to all car parking areas;

(x) bicycle parking dimensions in accordance with clause 52.34-4 of the Yarra Planning Scheme, or otherwise to the satisfaction of the Responsible Authority;

(y) bicycle signage in accordance with clause 52.34-5 of the Yarra Planning Scheme;

(z) notations confirming Robert Street and Waterloo Road will become 'shared zones';

(aa) notations confirming 'give way' signs will be installed facing motorists on both legs of the north-south carriageway easement at the intersection with Waterloo Road;

(bb) updated landscape plans generally in accordance with the Landscape Concept Plans (August and October 2011) prepared by Tract Consultants Pty Ltd and the evidence of Tract Consultants Pty Ltd dated 21 January 2013 to the satisfaction of the Responsible Authority must be prepared by a suitably qualified professional. The plan must be drawn to scale with dimensions and three copies must be provided. The plan must show:

• (i) re-design of the neighbourhood square to include additional soft landscaping;
• (ii) deletion of landscaping proposed within the 'way' easement located outside the title boundaries;
• (iii) details of landscaping to level 9 (central building) roof terrace;
• (iv) detailed planting plan with plant schedule (common and botanical plant names, density, quantities, size at planting and maturity height;
• (v) cross sections demonstrating how landscaping will function above the basement;
• (vi) the location of all areas to be covered by lawn or other surface materials;
• (vii) the location of any permanent structures, furniture, public seating or other facilities;
• (viii) the location of all underground and overhead services;
• (ix) all public area footpaths, steps, ramps and crossings to comply with DDA - Tactile indicators, nosing's and handrails where necessary;
• (x) grades of all ramps shown on plan;
• (xi) grades of all footpaths shown on plan;
• (xii) details of street furniture, including bench seats and street tree planters;
• (xiii) existing and proposed levels including top wall and fence heights (where relevant);
• (xiv) ongoing maintenance and management details of all publically accessible spaces; and
• (xv) a schedule of 'way finding' signage;

(cc) a detailed lighting plan, confirming:

• (i) the car parking spaces, storage, rubbish bin, recycling bin, pedestrian walkways, stairwells, lift, dwelling entrances and entry foyer pedestrian and vehicular entries to the site from Robert Street, Waterloo Road and the carriageway easement will be illuminated (including the neighbourhood square, deli and café);
• (ii) street lighting for pedestrian areas will be designed in accordance to the requirements of AS1158.3.1;
• (iii) standard street lighting luminaries are as approved by Citi Power;
• (iv) street lighting luminaire are from the Energy Efficient list (Council's Engineering Services Unit); and
• (v) power supply to the proposed lighting poles will be underground;

(dd) all works recommended in the report of the professional acoustic engineer referred to in condition 8;

(ee) all works recommended in the ESD report referred to in condition 12; and

(ff) all works recommended in the waste management plan referred to in condition 15.

1. All development and use must accord with the endorsed plans. Any alterations must be approved in writing by the Responsible Authority.
2. Floor levels shown on the endorsed plans must not be altered or modified. Any alterations must be approved in writing by the Responsible Authority.

Section 173 agreement

1. The development approved under this permit must not commence until:
   • (a) the section 173 agreement (Agreement) entered into on 3 August between the Responsible Authority, the Heritage Council and Treeline Pty Ltd and recorded against the title to the subject land is ended; and
   • (b) the owner enters into a new section 173 agreement with the Responsible Authority, the Heritage Council with respect to the development of the land in accordance with any requirements of Heritage Victoria;

(c) the Agreement entered into on 3 August between the Responsible Authority, the Heritage Council and Treeline Pty Ltd and recorded against the title to the subject land is amended to ensure the requirements of the Agreement are consistent with the development authorised under this permit;

1. As part of the ongoing consultant team Hayball Pty Ltd or an architectural firm to the satisfaction of the Responsible Authority must be retained to complete the design and provide architectural oversight of the delivery of the detailed design as shown in the endorsed plans during the construction unless with the prior written approval of the Responsible Authority.

1. Within 6 months of the development commencing, the design of the Shared Zones in Robert Street (between Wellington and Rokeby Streets) and Waterloo Road (between Wellington and Rokeby Streets) must be prepared by an independent and suitably qualified professional to the satisfaction of the Responsible Authority and in consultation with the Responsible Authority. The design must be submitted to and approved by the Responsible Authority. Once approved, the design will then form part of the permit. The details of the design must include all dimensions, existing reduced levels, proposed kerb levels, surface treatments, line marking, kerb, channel and footpath works, positions and details of all signs (existing and proposed), accurate locations of any stormwater pits and underground services. The design of the Shared Zones must confirm:
   • (a) the roads (carriageways) will remain in bluestone;
   • (b) the full reconstruction of Robert Street between Wellington and Rokeby Streets to include the relaying of the bluestone;
   • (c) any extension to the south side of Robert Street ('footpath') is to be constructed in asphalt or a material to complement the bluestone;
   • (d) vehicular access to be maintained to the properties on the north side of Robert Street and south side of Waterloo Road;
   • (e) location and details of 'shared zone' signage;
   • (f) the re-setting of stones within the existing bluestone threshold treatment, demonstrating the threshold treatment is robust to accommodate vehicle loadings and repetitive movements, ensuring that stones are not dislodged;
   • (g) removal of parking restrictions and signs (as necessary); and
   • (h) any other works required recommended in the Road Safety Review prepared by GTA Consultants dated 24 July 2012.
2. Before the issue of a certificate of occupancy for the final stage of development, all works associated with providing the Shared Zones in Robert Street (between Wellington and Rokeby Streets) and Waterloo Road (between Wellington and Rokeby Streets) as set out in condition 6 must be undertaken and completed at the cost of the permit holder unless with the prior written consent of the Responsible Authority and all to the satisfaction of the Responsible Authority.

1. Before the plans are endorsed, an updated acoustic report generally in accordance with the report dated November 2011to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. Once approved, the acoustic report will be endorsed and will then form part of the permit. The report must be prepared by a suitably qualified acoustic engineer and include an assessment of how the requirements of the State Environment Protection Policy (Control of Noise from Commerce, Industry and Trade), No. N-1, the State Environment Protection Policy (Control of Music Noise from Public Premises), No. N-2 and relevant Australian Standards will be met and must prescribe the form of acoustic treatment to:
   • (a) protect all dwelling occupants and nearby occupants from noise generated from the mechanical plant equipment and ventilation mechanisms installed or constructed as part of the development (including the lift, residential air conditioner units and commercial plant and equipment);
   • (b) protect all dwelling occupants and nearby occupants from music noise generated by the café and deli;
   • (c) protect all dwelling occupants from music noise, vibrations and 'weight dropping' within the level 9 gymnasium;
   • (d) protect all dwellings within the development from noise generated from use of the bin chutes; and
   • (e) protect all dwelling occupants within the development from noise generated by the Wellington Street Workshop and Robert Street seafood processing plant and surrounding commercial activities.
2. If the development of any stage of the development has not started within 12 months of the date of the approved acoustic report referred to in condition 8, a further acoustic report prepared by a suitably qualified acoustic consultant to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. The further acoustic report must demonstrate that the State Environment Protection Policy (Control of Noise from Commerce, Industry and Trade), No. N-1, the State Environment Protection Policy (Control of Music Noise from Public Premises), No. N-2 amenity levels as assessed in the acoustic report submitted and approved under condition 7 will still be achieved.

In the event that non-compliance with the State Environment Protection Policy N-1, N-2 levels is demonstrated, the further report must recommend additional measures necessary to achieve compliance to the satisfaction of the Responsible Authority.

1. On the completion of any works required by the endorsed acoustic report (under conditions 8 or 9) above and before the residential use commences of any stage of the development, an updated acoustic report prepared by a suitably qualified acoustic consultant to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority demonstrating that the required level of noise attenuation has been achieved. The report must:
   • (a) confirm compliance with conditions 8 and 9 of the permit; and
   • (b) provide measurement data taken from inside the dwellings of the development,

demonstrating compliance with the State Environment Protection Policy (Control of Noise from Commerce, Industry and Trade), No. N-1 and the State Environment Protection Policy (Control of Music Noise from Public Premises), No. N-2.

1. The recommendations and any works contained in the approved acoustic reports under conditions 8, 9 and 10 (as applicable) must be implemented and completed and where there are recommendations of an ongoing nature must be maintained all to the satisfaction of the Responsible Authority.

1. Before the plans are endorsed, an amended Environmentally Sustainable Report prepared by a suitably qualified person to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the report will then form part of this permit. The Report must be generally in accordance with the report prepared by Ark Resources (dated 22 August 2011) but modified to include:
   • (a) information about the provision of hot water for town houses and the central building; and
   • (b) details regarding sliding shading louvers.
2. Within 18 months of the occupation of the development, documentation demonstrating that the development has complied with a 4 Star Green Star Multi Residential As Built rating must be submitted to and approved by the Responsible Authority.

1. Within 6 months of the commencement of the development, or at some other time agreed to be the responsible authority, details of the public artwork to be provided in the locations shown on the endorsed plans to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the details of the public artwork will be endorsed and will then form part of the permit. The cost of the public artwork is to be borne by the owner or occupier of the land. The artwork must be installed before any part of the development is occupied except with the prior written consent of the Responsible Authority all the satisfaction of the Responsible Authority. The public artwork as approved must then maintained to the satisfaction of the Responsible Authority.

1. Before the plans are endorsed, a Waste Management Plan prepared by a suitably qualified person to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the report will then form part of this permit. The Report must be generally in accordance with the report prepared by Leigh (dated 2 July 2012).
2. Residential waste collections and bin transfers may only be carried-out between the hours of 10.00 am and 2.00 pm, unless with the prior written consent of the Responsible Authority.
3. The collection of all waste must be in accordance with the approved Waste Management Plan. Rubbish, including bottles and packaging material, must at all times be stored within the building and screened from external view and be managed to the satisfaction of the Responsible Authority in accordance with the approved Waste Management Plan.
4. No emptying of bottles into garbage bins (associated with the café and deli uses) is permitted after 10.00 pm on any night, or before 7.00 am on any day.
5. All waste must be collected by private collection service to the satisfaction of the Responsible Authority.

1. Before the development starts the owner must enter into an agreement pursuant to Section 173 of the Planning and Environment Act 1987 with and to the satisfaction of the Responsible Authority. The agreement must be registered on the title to each lot. By the agreement, the owner must covenant with the Responsible Authority that provision will be made for at least 2 car share vehicles on-site and 7 bicycle share spaces (provision may be staged) by way of arrangement with a car share operator and/or the future Owners Corporation for a minimum period of 10 years. The agreement will reflect that any costs which may be associated with ensuring ongoing availability of at least 4 car share vehicles on site will be borne by the owner. All costs of preparation and registration of such agreement must be borne by the owner of the land, or the future Owners Corporation, including those incurred by the Responsible Authority.

1. Before the development starts, a Transport Management Plan prepared by a suitably qualified professional to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the Transport Management Plan will be endorsed and will then form part of the permit. The Transport Management Plan may be amended from time to time to the satisfaction of the responsible authority. The Transport Management Plan must address the following:

(a) an internal signage/line marking plan:

• (i) distinguishing resident, retail and multi-use parking spaces, with directional arrows and signage;

• (ii) detailing information signs indicating the location of disabled bays, small parking bays, bicycle parking and exits;

• (iii) detailing line marking and signage to the entry and exit lanes to all car parking areas and exits (including at the Robert Street frontage);

• (iv) confirming 'give way' signs will be installed facing motorists on both legs of the north-south carriageway easement at the intersection with Waterloo Road;

(b) security arrangements;

(c) a minimum 323 residential car parking spaces;

(d) residential car parking must be allocated such that all two and three bedroom dwellings are provided with at least one on-site car parking space;

(e) other car parking must be allocated as follows:

• (i) deli/café - 2

• (ii) multi-use - 9 (inclusive of one disabled bay);

(f) a minimum of 13 motorcycle parking bays;

(g) a minimum of 2 car spaces for a car share programme;

(h) management details of the car share programme provided;

(i) allocation, signage and management of the 31 small car spaces shown within the car parking areas;

(j) how all residents will be informed of the waste collection times (and associated restricted access to the car park);

(k) a minimum of 135 bicycle parking spaces as follows:

• (i) dwelling - 88;
• (ii) visitor - 40; and
• (iii) bicycle share - 7;

(l) details regarding management of loading and unloading of goods in compliance with any other condition(s) of this permit; and

(m) management arrangements for resident loading (i.e. moving vans).

1. Except with the further written consent of the Responsible Authority, the management of the car park must, at all times, comply with the approved Transport Management Plan.

1. Before the occupation of the development, the area set aside for the parking of vehicles, together with the associated access lanes as delineated on the endorsed plan must:
   • (a) be constructed and completed;
   • (b) thereafter maintained;
   • (c) be made available for such use at all times and not used for any other purpose;
   • (d) be properly formed to such levels that it can be used in accordance with the endorsed plan; and
   • (e) be drained and sealed with an all-weather seal coat,

all to the satisfaction on the Responsible Authority.

1. Any redundant vehicle crossings must be broken out and reinstated with paving, kerb and channel of the surrounding area to the satisfaction of the Responsible Authority. The cost of these reinstatement works must be borne by the Permit Holder.
2. Any damaged road(s) and footpath(s) adjacent to the development site as a result of the development (including as a result of trenching and excavation for underground utility service connections) must be reinstated to the satisfaction of the Responsible Authority and at the expense of the Permit Holder.
3. All vehicle crossings must be constructed to the satisfaction of the Responsible Authority.
4. The development's finished floor levels relative to the existing footpath and road levels must be such that pedestrian and vehicular access accord with the Australian/New Zealand Standard AS/NZS 2890.1:2004.
5. All existing kerb and channel, and road pavement surface levels must not be altered, unless with the prior written approval of the Responsible Authority. Council may permit the adjustment of Building Line levels to provide access in accordance with AS/NZS 2890.1:2004.

1. Alarms associated with the commercial premises must be directly connected to a security service and must not produce unreasonable noise beyond the premises.
2. The development and use of the café and deli must be managed so that the amenity of the area is not detrimentally affected including through:
   • (a) the transport of materials, goods or commodities to or from land;
   • (b) the appearance of any buildings, works or materials; and
   • (c) the emission of noise, artificial light, vibration, smell, fumes, smoke, vapour, steam, soot, ash, dust, waste water, waste products, grit or oil, or the presence of vermin.
3. All buildings must be maintained in good order and appearance to the satisfaction of the Responsible Authority.
4. Noise levels emanating from the development, including plant and other equipment, must comply with the State Environment Protection Policy (Control of Noise from Commerce, Industry and Trade) No. N-1 to the satisfaction of the Responsible Authority.
5. Noise levels emanating from the commercial uses within the development must comply with the State Environment Protection Policy (Control of Music Noise from Public Premises) No. N-2.

1. Before the occupation of the final stage of development or by such later date as is approved by the Responsible Authority , the landscaping works shown on the endorsed landscaping plans must be carried out and completed to the satisfaction of the Responsible Authority.
2. The landscaping shown on the endorsed landscaping plans must be maintained to the satisfaction of the Responsible Authority including that any dead or diseased or damaged plants are to be replaced.
3. Unfettered public access must be maintained through the central open space area.

1. External lighting must be designed, baffled and located so as to prevent any adverse amenity or impact to any person within and beyond the site, to the satisfaction of the Responsible Authority.
2. Within 6 months of the development commencing, a public lighting plan for Waterloo Road to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. Once approved the plan will be endorsed and will then form part of the permit. The plan must detail:
   • (a) the level of lighting complying with level "P4" ( or higher) as per Australian Standard AS1158.3.1;
   • (b) use of standard Citi Power energy efficient luminaries;
   • (c) no light spillage occurring into windows of the proposed residential properties and should comply with the requirements of Australian Standard AS 4282;
   • (d) a consultation plan detailing consultation with the existing occupiers regarding the proposed location for the new street lighting poles; and
   • (e) the process of the implementation of new scheme must not cause any disruption to the existing public lighting - ensure continuity of public lighting during the installation process.

The cost of the design/consultation and installation of lighting scheme will be borne by the permit holder.

1. Before any stage of the development is occupied, privacy screens for that stage as required in accordance with the endorsed plans must be installed to the satisfaction of the Responsible Authority and maintained to the satisfaction of the Responsible Authority thereafter.
2. All new on boundary walls must be cleaned and finished to the satisfaction of the Responsible Authority.
3. All piping and ducting, other than for drainage above the ground floor storey of the building must be concealed.

1. The food and drinks premise (café) may only operate between the hours of 7.00 am and 11.00 pm, seven days, unless with the prior written consent of the Responsible Authority.
2. The outdoor seating area (designated area within the 'neighbourhood square') must not be used beyond 10.00 pm on any night, unless with the prior written consent of the Responsible Authority.
3. No more than 5 staff members may be on the site at any one time, unless with the prior written consent of the Responsible Authority.
4. No more than 40 patrons may be inside the food and drinks premises (café) at any one time, with an additional 40 patrons permitted within the designated area within the 'neighbourhood square', unless with the prior written consent of the Responsible Authority.
5. Speakers must not be located outside the building.
6. Deliveries may only occur between 8.00 am and 4.00 pm, unless with the prior written consent of the Responsible Authority.

1. The convenience shop (deli) may only operate between the hours of 7.00 am and 11.00 pm, seven days, unless with the prior written consent of the Responsible Authority.
2. Deliveries may only occur between 8.00 am and 4.00 pm, unless with the prior written consent of the Responsible Authority.

1. Before the development is occupied, a Green Travel Plan prepared by a suitably qualified person to the satisfaction of the Responsible Authority following consultation with the Department of Transport (Public Transport Division) must be submitted to and approved by the Responsible Authority. Once approved, the plan will then form part of the permit. The Plan must encourage the use of non-private vehicle transport modes by the occupiers of the land. The Plan must include:
   • (a) a description of the location in the context of alternate modes of transport and objectives for the Green Travel Plan;
   • (b) outline Green Travel Plan measures for the development including, but not limited to:
     • (i) household welcome packs - tram, train and bus timetables relevant to the local area must be included in the pack of information provided to purchaser's upon a purchasers occupation of an apartment;
     • (ii) include a minimum to 10 by 2 hour Metcard (zone one / two) within the household welcome pack or a Myki pass (of equivalent value) and registration information;
     • (iii) bicycle parking and facilities available on the land; and
     • (iv) pedestrian routes to key destinations.
2. The Green Travel Plan must not be amended without the written consent of the Responsible Authority following consultation with the Department of Transport (Public Transport Division).
3. The permit holder must ensure that the undertakings outlined in the approved Green Travel Plan (and any ongoing obligations) are complied with at all times, to the satisfaction of the Responsible Authority.

1. Before any development starts, 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 then form part of the permit. Construction must be carried out in accordance with the endorsed plan to the satisfaction of the Responsible Authority. The plan must provide:
   • (a) a pre-conditions survey (dilapidation report) of the subject site and all adjacent Council roads frontages and nearby road infrastructure;
   • (b) protection works necessary to road and other infrastructure (limited to an area reasonably proximate to the site);
   • (c) remediation of any damage to road and other infrastructure (limited to an area reasonably proximate to the site);
   • (d) containment of dust, dirt and mud within the site and method and frequency of clean up procedures in the event of build-up of matter outside the site;
   • (e) on-site facilities for vehicle washing;
   • (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 that the activities on-site pose including but not limited to: contaminated soil, materials and waste, dust, stormwater contamination from run-off and wash-waters, sediment from the site on roads, washing of concrete trucks and other vehicles and machinery, spillage from refuelling cranes and other vehicles and machinery;
   • (i) construction program;
   • (j) preferred arrangements for trucks delivering to the site including delivery and unloading points and expected frequency;
   • (k) parking facilities for construction workers;
   • (l) measures to ensure that sub-contractors/tradespersons operate 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, to the satisfaction of the Responsible Authority. In this regard, consideration (amongst other matters) may be given to:
     • (i) using lower noise work practice and equipment;
     • (ii) the suitability of the site for the use of an electric crane;
     • (iii) mitigating noise from all mechanical plant by the best practical means using current technology; and
     • (iv) fitting all pneumatic tools operated near a residential area with an effective silencer on their air exhaust port.
2. During the construction, the following must occur:
   • (a) any stormwater discharged into the stormwater drainage system to comply with EPA guidelines;
   • (b) stormwater drainage system protection measures must be installed as required to ensure that no solid waste, sediment, sand, soil, clay or stones from the premises enters the stormwater drainage system;
   • (c) vehicle borne material must not accumulate on the roads abutting the site;
   • (d) the cleaning of machinery and equipment must take place on site and not on adjacent footpaths or roads;
   • (e) all litter (including items such as cement bags, food packaging and plastic strapping) must be disposed of responsibly; and
   • (f) all site operations must comply with the EPA Publication TG302/92.
3. The development once commenced, must be completed to the satisfaction of the Responsible Authority.

1. This permit will expire if one of the following circumstances applies:
   • (a) the development is not started within two years of the date of this permit;
   • (b) the development is not completed within four years of the date of commencement.

The Responsible Authority may approve extensions to these time limits if requests are made before the permit expires or within 3 months afterwards.

[1] The site is included on the Victorian Heritage Register (Ref. No H807). Heritage Victoria has issued a permit (Permit No. P16751 as amended, dated 10 September 2012) for the proposed development. A permit is therefore not required for this proposal under the Heritage Overlay.

[4] Applies to surrounding, B3 zoned land to north, east and south

[5] Development Guidelines for Sites Subject to Heritage Overlay

[6] Applies to landmarks and tall structures.

[7] VCAT Reference P2732/2012, (14 March 2013)

[8] The Tribunal's findings on this point were in line with those of the Tribunal in Richmond Icon Pty Ltd v Yarra CC (includes Summary) (Red Dot) [2011] VCAT 2175, paragraph 43.

[9] [2012] VCAT 146

[10] Richmond Icon Pty Ltd v Yarra CC [2011] VCAT 2175 and Pentas Property Investments Pty Ltd v Port Phillip CC [2005] VCAT 2196, Richmond Icon Pty Ltd v Yarra, VCAT Reference No. P2732/2012, (14 March 2013).

[11] That is, with dwelling units to either side of a corridor.

[12] An element of "New Urbanism", a philosophy for better design of urban areas that originated in the USA in the 1980s. This philosophy supports high levels of urban permeability for pedestrians and seeks to achieve this with street layouts based on use of the traditional grid pattern.

[13] Clause 10.04 State Planning Policy Framework Yarra Planning Scheme.

[14] [2011] VCAT 469. In that case, the Tribunal had regard to a range of factors in deciding that a permit should be granted for the demolition of a heritage building and for the use and development of a research and development centre and education centre. The Tribunal found that the establishment of the research and education centre was supported by policy and, together with its public health benefits and the contribution it will make to Melbourne's economic development, will outweigh the loss to Melbourne's heritage of the former Ampol House.

[15] Richmond Icon Pty Ltd v Yarra, VCAT Reference No. P2732/2012, (14 March 2013).

[16] Clause 52.06-5 specifies that 429 parking spaces need to be provided to comply with the planning scheme. A permit is required to reduce the parking provision.

[17] Spurling v Development Underwriting (Vic) Pty Ltd [1973] VicRp 1; [1973] VR 1 at 8-12.