Findings of fact on car park characterisation

1. The applicant for review says that the land use is not a separate land use and that the car parking which is shown on the plans and hatched for supermarket use is part and parcel of the supermarket.
2. The permit applicant says that the car park use is separate to the other land uses on the site. They submitted that the land use is a 'commercial car park' which is innominate within each zone. They say that the sum of all car parking on the site will be managed by a private operator which is separate from the ownership or operation of the other land uses on site, that a fee will be charged, and the operator will be able to allocate spaces as required within the confines of the permit conditions. They submitted proposition that this is a 'commercial car park' rather than parking associated with the supermarket differs from the arguments before the Tribunal in Marble Swirl.
3. The plans before us (and the NOD plans) do not reflect this approach with car spaces allocated to 'commercial' shown in blue and to the 'supermarket/retail' in pink. The car park is not described as a separate land use. The evidence of Mr Morello was that this should be corrected.
4. The NOD also refers to the permit preamble as including permission for 'use of a Commercial car park'. Council was not clear whether it had considered the application as an innominate use but Ms Rozankovic-Stevens submitted that the term 'commercial' was intended to reflect that fees would be charged for use of the car park.
5. The conditions of the NOD require allocation of 138 spaces for the office use and that all other spaces be available to the 'public'. A proposed condition also requires that the supermarket be provided with free two hour parking. Council's traffic engineers in the referral response expressed a preference that the car parking be provided for the supermarket but accepted that the application was for 'Basement 1 and 2 car park levels to be used as a public car park':

The applicant seeks to amend Permit Condition 24 to allow the Basement 1 and 2 car park levels to be used as a public car park, and to charge for parking if desired. In response to the applicant seeking to amend Permit Condition 24, we would like the to ensure the development is self-sufficient and customers to the supermarket are not charged for parking to avoid customers impacting on-street parking opportunities to avoid paying for parking in the public carpark.

1. Clause 73.03 provides that a 'term describing a use or activity in relation to land which is not listed in the table must not be characterised as a separate use of land if the term is obviously or commonly included within one or more of the terms listed in the table'. We discussed with the parties the definition of the use 'car park'. The definition is:

Car park

Land used to park motor vehicles. It may include charging of electric vehicles.

1. We find this use falls squarely within the definition of 'car park' at Clause 73.03 of the scheme. We find that the fact that the car park is to be operated on a commercial basis does not result in a new or different use. The question is then whether the use is a 'car park' or part of the supermarket. The fact that the applicant has applied for separate permission for a 'car park', does not in itself mean that the car park is a separate land use. That needs to be ascertained from the facts of this case.
2. All parties referred to the decision of Shire of Perth v O'Keefe [1964] HCA 37 ('Shire of Perth'). The court found that characterisation is to be in accordance with the real and substantial purpose for which the land is used to be determined by an examination of the use as a whole rather than a separate consideration of each activity that might be part of the use. Both parties agree that the matter is a question of fact.
3. Both the applicant for review and the permit applicant applied the court's decision in Shire of Perth it in quite different ways:
   • The applicant for review invites us to consider the whole of the details before us including the text on the drawings, the location of shopping centre related details such as trolley bays within the car park, the direct connection between car park and supermarket and the preferential pricing to be offered to supermarket customers as evidence that the car park is an essential component of the supermarket. The applicant for review submits that the use is not a separate car park, but rather for the supermarket.
   • The respondent invites us to look at the overall use of the car park as a mix of private office parking and paid for public parking, and suggests this could equally be provided in another building nearby where the supermarket could make the same for preferential parking for its customers to meet its planning requirements noting that there is no requirement for the operator to keep the requisite number of bays free - they could be taken by other members of the paying public.
4. We had the benefit of the evidence of Mr Morello and Mr Gnanakone. We also put the difference in approach to both traffic witnesses in cross examination and they each acknowledged that it made little difference from a traffic engineering perspective. Their evidence was confined to assessing traffic and parking impacts and they did not attempt to address the independence or otherwise of the use. To the extent that it assists us, it is in understanding that car parking can be understood on a centre wide basis, a proposition agreed to by both witnesses.
5. In our view the ownership or management entity does not in itself mean that the real and substantive purpose of the car parking is as a 'car park' as opposed to car parking associated with the uses on the land. There is no mention of the type of operator or the public or private benefit of the activity in the definition. We note that a fee is proposed to be required for car parking. This does not in itself mean that it is separate land use but is part of the management of the car park.
6. To be a 'car park' as a separate land use, we consider that there must be a clear separation from the supermarket and other land uses on the site. No spaces should be allocated for the supermarket use, including any operational needs such as 'click and collect' type spaces. We also consider that the requirement for two-hour free parking to incentivise the use of the public spaces by supermarket customers does not support the contention that this car park is a separate land use. We consider that supermarket customers should not be given preference over other land uses and rather that the two hour free or discounted parking should be available to all to encourage turnover of car spaces within the car park consistent with its proposed role as an independent supply for the activity centre.
7. We find that on the facts before us, we can categorise the 'car park' as a separate land use. We have required that no spaces should be directly allocated or leased to the supermarket and the conditions of permit reflect this. We consider that the provision of a car park is an appropriate use within the activity centre because it will serve the broader mix of land uses as well as those on the site.

1. Given our findings above that the car park is a separate land use on the facts before us, the remaining question is whether it is acceptable to reduce to zero the car parking required under Clause 52.06 for each land use.
2. The two traffic experts agreed that the table in the evidence of Mr Morello is an appropriate basis for the calculation of the spaces required under Clause 52.06, noting that it differs from that included within the Traffic report that accompanied the application[9] (Figure 4)

Figure 4 Car parking requirements (Source: evidence of Mr Morello)

1. Council assessed the application based on a requirement to provide 817 car spaces, with 327 to be provided on the land and a reduction of 490 spaces (an increase of 289 spaces over the current approved reduction in the permit of 201 spaces). Council submitted that the 'reviews site benefits from locational attributes that ensure that the proposal performs positively against the decision guidelines at Clause 52.06-7, warranting support for a further reduction of 289 car parking spaces'.
2. Although Council did not assess a full reduction to zero for all land uses, Council submitted that it made little difference to the outcome provided that the office use had allocated spaces within the commercial car park and there was an overall increase in the public parking provision in the area.
3. Like Council's traffic engineers, both experts agreed that on-site parking provisions are acceptable, subject to inclusion of a car park management plan via permit condition and that the on-street car parking modifications were appropriate. They also agreed that the car parking layout was acceptable subject to inclusion of conditions to address sightlines and the design of some car spaces.
4. We find that it car parking for the office use should not be reduced to zero because of the long-term nature of car parking demand. This is the position that Council adopted. In granting approval under Clause 52.06-3 we will require availability of car spaces within the car park management plan for the office use. Given the nature of the car park to be operated as a separate land use, we think that this can be achieved through the leasing or licencing of the spaces from the car park operator. We agree with Council that 189 spaces should be provided to the office use which should meet demand based on the evidence before us. To the extent that demand is not met, and alternative forms of transport are not used, office staff and visitors would compete for car spaces within the publicly accessible car park on the land or within the broader area.
5. The question then is whether it is acceptable to provide no parking for the remaining land uses, and particularly the supermarket. The two traffic experts agreed that the demand of 99 spaces for the retail uses could be met through the on-site parking provision adding 138 publicly accessible spaces to the supply. Taking into account the decision guidelines at Clause 52.06 we are satisfied that these spaces can be reduced to zero, given this new supply, the short term nature of the demand and supported by the fact that the review site is located in the Principal Public Transport Network and well served by public transport including the light rail.
6. We find that there is a net community benefit in not allocating the car spaces to the individual land uses, but rather treating the car park as a contribution to the overall supply of publicly accessible car parking within the activity centre.
7. Bicycle parking and facilities are to be provided to meet the requirements of Clause 52.34 subject to conditions. This would need to be maintained in the relocation of the supermarket provision. Mr Gnanakone recommended additional visitor bicycle parking within the public realm plan. This would be a matter for Council and the proposed public realm improvement plan.

1. We note that both traffic witnesses were satisfied that the traffic generated by this development could be accommodated within the surrounding street network. The experts considered that there would be a benefit to the incorporation of real time parking availability signage within the public realm. Council's traffic engineers were also satisfied. The signage could be considered as part of the proposed public realm improvement plan as a condition.

1. The application was accompanied by a waste management plan ('WMP'). The two traffic engineers agreed that this report had likely underestimated the waste generation from the food and drink and hotel land uses and possibly the supermarket use. This may require additional bin space or more frequent collection. This could be addressed in a revised WMP. Mr Gnanakone was specifically concerned about the frequency and larger vehicles given the restrictions proposed around market times. We consider these concerns valid, but ultimately a question for a revised WMP and is not fatal to the application.

1. A permit is required under each zone to construct a building or to construct or carry out works, but there are no third-party appeal rights under these controls.
2. Council advised that review rights arise because a permit is also required under the provisions of DDO8 which is the key control in this proceeding that informs our decision. In addition, permissions are required because of the Heritage Overlay affecting the Southern Cross Hotel.
3. It was common ground that DDO8 is the key planning control relevant to these proceedings and that there are no mandatory requirements contained within it (despite the use of some terminology that could suggest otherwise). The DDO8 is the key control in this proceeding that informs our decision. The objectives of DDO8 are:

• To provide for high quality, well designed new development in the precincts of South Melbourne Central (SMC) which are facing increased pressure for development or where the South Melbourne Central Structure Plan 2007 has recommended significant changes in land use. The SMC Structure Plan identifies 10 precincts where change will occur (refer Map 1 South Melbourne Central Precinct Boundaries in Clause 22.11). ....
• To respect the distinctive hard edge character of the commercial and industrial precincts of SMC by requiring zero setbacks. To encourage a vibrant street life and outdoor activity by:
  • creating a high quality public realm with particular emphasis on pedestrian friendliness and active street frontages.
  • maintaining sunlight access to the southern footpath of principle activity streets all year round.
  • encouraging ground floor design that contributes to interaction with streetscape activity and balconies or terraces at the upper levels that overlook the street.
  • encouraging the provision of new private and public open spaces.
• To retain the variety of spatial experiences of SMC which ranges from the 30-metre-wide main streets to the intimate through-block laneway spaces.
• To ensure that the sense of openness and sky visibility of SMC's wide main streets is maintained.
• To ensure that new built form does not unreasonably diminish sunlight access, particularly to key pedestrian routes.
• To emphasise corner sites through built form, setbacks, street level activity and/or landscape treatments.
• To realise the development potential of large sites with design outcomes that respect streetscape character and urban amenity.
• To encourage development to express detailed articulation and varied streetscape frontages.
• To ensure that new development on sites containing or adjacent to a heritage place is of a form and scale that is respectful of the heritage place.
• To maintain the distinction in building scale between SMC, which is characterised by low to medium rise buildings, and the high-rise buildings of Southbank, the CAD and Kings Way.
• To emphasise the edges of SMC along Kings Way and north and west of City Road with higher scale built form.
• To ensure that all new development or modifications to existing buildings employ environmentally sustainable design techniques.
• To ensure that the design of new development intended for residential use provides for adequate protection of future residents from external and internal noise sources.

1. The DDO8 includes general requirements, application requirements and decision guidelines. The area is divided into precincts and sub-precincts. The review site is within three sub-precincts, 8a, 2b and 8b (Figure 5). Each precinct and sub-precinct have specific requirements.
2. The DDO8 has been in place for many years and is based on the 2007 structure plan. As we have set out above, we note that the latest structure plan work adopted by Council is very different to the 2007 structure plan. Council says that it is 'moving away from the current controls.' However, we are cognisant that we must apply the planning scheme as we find it and that we can only give limited weight to the new structure plan work given the associated planning scheme amendment is in its early stages.
3. Apart from the significant time lapse since the original work was undertaken to inform the DDO, we note that the control itself is unusual. We echo the findings of the Tribunal in 134 Moray St Pty Ltd v Port Phillip CC (Corrected) [2018] VCAT 1831 ('Moray') that DDO8 is a 'confusing and convoluted control', more so where this site falls within three different sub-precincts.
4. All parties adopted the position that the provisions were discretionary rather than mandatory as per the Tribunal's decision in Moray. Accordingly, it is a matter for us to exercise our discretion as to whether approval is appropriate in the circumstances where this proposal will not meet the general requirements or those set out in each sub-precinct. We note that the DDO is to be considered as a whole, and the ultimate decision is whether the objectives of the control are met. We have addressed the key aspects of the control in our reasons below.

IS THE TREATMENT OF THE STREET WALLS TO YORK, MARKET AND CECIL STREETS ACCEPTABLE?

1. The proposed street walls to the three wide streets provides a series of facade elements or simulated building frontages of generally a similar scale to the early building forms in the area. This is achieved by varying the materials and colour, as well of the height of each façade element.
2. It presents as a two-storey street wall to York Street, stepping up to three and four storeys along Cecil Street. To Market Street, the existing two storey Southern Cross Hotel is retained and extended progressing to a three-storey street wall that incorporates pedestrian and car park entrances and a loading bay. To York Street the facades include two individual shops expected to be food and beverage outlets. It was generally agreed that this street wall is fully in compliance with the provisions of DDO8 and would provide an acceptable response to the South Melbourne Market that is opposite.
3. We note that the design has been developed to partner with improvements to the public realm to assist activating the street. We see this as a very important detail, observing that the façade of the South Melbourne Market facing York Street is relatively bland and presents quite an inactive façade to the street. These public realm improvements are an important part of all of the street façades and we will have more to say about this later.
4. To Cecil Street the façades step up to four storeys or 17.8m towards the northern end. The applicant for review says this fails to achieve the requirements set out in DDO8 that calls for a two to three storey street wall with a maximum height of 12m, noting these are discretionary controls. They note it complies with the requirement for at least 50% clear glazing and the elimination of any crossovers in both York and Cecil Streets.
5. The permit applicant says that the variation in height is acceptable as it helps to provide differentiation between the various façade elements, providing a streetscape that is not atypical for this area where variations in height of a storey are quite common.
6. We agree with the Council and permit applicant that the variation is relatively minor and extends for only two modules, before stepping down towards the two-storey hotel; so that overall a mostly two to three storey street wall is achieved. We also find that it is effective in assisting to emphasise the different façade elements. We consider this supports the objective of DDO8 to 'encourage development to express detailed articulation and varied streetscape frontages'.
7. We note that the Cecil Street façade lacks direct activation apart from the entries at each end. We were shown that the façade design incorporates areas of seating and clear glazing allowing views into the supermarket. We find this will provide an acceptable level of passive activation but note again success will depend to some extent on the successful treatment of the public realm. Ms Roberts recommended that all ground floor retail windows (including the supermarket) be kept clear to allow views in and out. We agree and will include a condition that requires the windows to be kept clear of obstructions and to limit any advertising or notices to no more than 20% of the window area.
8. For the reasons outlined above, we find that the architectural design, including the articulation, activation and scale of the street facades of Market, Cecil and York Streets will contribute towards a high quality public realm. They achieve a scale and rhythm that is responsive to the two to three storey street walls in this precinct and in combination with the proposed improvements to the public realm will achieve the pedestrian friendliness and active street frontages sought by the DDO.

IS THE OVERALL BUILT FORM TOO HIGH AND VISUALLY INTRUSIVE, LEADING TO DETRIMENTAL EFFECTS TO MARKET STREET AND THE HOTEL?

1. The amended proposal before us rises towards the north in a wedge like overall form, so that the tallest elements are located close to Market Street and extend above the preferred height set out in the DDO.
2. The applicant for review says that this results in an unacceptable level of building bulk towards the northern end of Cecil Street and to Market Street. The upper levels of the proposed building would dominate Market Street, and result in effectively a "lop-sided" street because the northern side would be limited by shadow controls protecting the southern footpath. They say the visibility of the northern section appears to be driven mainly by the shadow requirements to protect York Street. While this is achieved, it results in excessive visual bulk to the north and a "wedding cake" presentation.
3. They called urban design evidence from Mr Campbell who said while the street wall requirements of the DDO8 are generally met, the upper-level form does not achieve the horizontal setbacks set out in the DDO and exceeds the recommended heights as it steps up to the north. He noted that it does comply with the shadow limits to the south but generally ignores the horizontal setbacks whereas the Hansen approved form more closely followed the DDO resulting in a more pyramidal form. He was concerned that the scale is excessive to Market Street and in his view will present too much visual bulk to the hotel. He had prepared his own 3D block models (Figure 6) comparing the amended proposal with the approved scheme that he said demonstrated that the amended proposal is excessively bulky.

Figure 6: Block modelling- approved scheme (top) and proposal (below), Evidence of Mr Campbell

1. Council said the tower design above podium follows the previously approved form that steps back from the southern boundary away from the South Melbourne Market. This scheme, however, expresses a modulated variation in the setbacks to Cecil and Northumberland Streets, explicitly to avoid the prevalent "wedding cake" effect that they say DDO8 tended to deliver because of the emphasis on equal setbacks to locate the tallest form in the centre of the site.
2. Council no longer sees the automatic implementation of setbacks as being the best approach and as noted it has commenced a review of planning controls in this area. Council submitted that the context for this site has changed since the development of DDO8 and considers the taller form towards the north of the site would still achieve a clear distinction from the City and Southbank as these areas have built up significantly since the DDO was developed. They said Council's Urban Designers were supportive of the changes to the tower massing and articulation and consider that the proposal is an appropriate increase in scale and density to a strategic site within the South Melbourne Activity Centre
3. The permit applicant agreed with Council. They relied upon the expert urban design evidence of Ms Roberts who considered that the massing successfully retains the sunlight amenity to the surrounding public realm as required by the DDO. When having regard to architectural detail including materiality, she was concluded that the proposal presents a highly articulated and site-responsive outcome that creates a high quality, high amenity public realm and delivers new private and public open spaces.
4. Similarly, ground floor activation is highlighted as a positive contribution to the proposal. She noted that the context within which the development sits has changed significantly since the DDO8 was introduced, with more significantly tall forms in Southbank now clearly visible from the subject site, and with similar city edge scale forms beginning to emerge in Fishermans Bend to the west, even closer to this precinct. She opined that in this context the proposed form will be seen as mid-rise and retain a distinct step down from the city edge scale.
5. Ms Roberts referred to the architectural renders including the Market Street elevation and an aerial view that illustrates the stepped form and articulation with landscape on structure. She noted that this view also illustrates the context of the taller form that is emerging in Southbank and Fisherman's Bend. These views are included below (Figures 7 and 8).

Figure 7: Render, Aerial view from the southeast (Woods Bagot, Architectural Town Planning Pack, 11/08/2023

Figure 8: Renders, Market Street elevation (above) and pedestrian level view (below) (Woods Bagot, Architectural Town Planning Pack, 11/08/2023

1. The Tribunal finds the submissions of Council and the evidence of Ms Roberts persuasive. We find that the high-rise forms of Southbank and (as emerging) in the adjacent Fishermans Bend have a distinct presence from Market Street. We observed during our site inspection that this is more evident 'on the ground' than appears in the photographs, and we are persuaded that in this context, the proposed form will still provide a clear step down from the CBD and City edge. It is notable that Fishermans Bend was not mentioned in DDO8 and that there are already Southbank scale towers visible from the site. We consider that the proposal will meet the objectives of DDO8 to retain a distinction in scale.
2. We are satisfied that the articulation of the upper forms will contribute towards an interesting backdrop to the street edge, which will continue to provide an appropriate scale for pedestrians on the southern footpath. We are not concerned that there will be a different scale to the north of Market Street assuming the solar protection to the southern footpath is retained. We conclude this because Market Stret is relatively wide, and is generally a more robust environment with less of the small "grain" buildings found in York Street.
3. We do not accept that the amended scheme could be described as a "wedding cake" and in any case even if it were so described it does not automatically follow it would be inappropriate. It would depend on how it is finally composed and detailed. In this case we find the composition has been finely developed. There is a good level of articulation and there is a clear definition between street elevation and upper form, while retaining a relationship so that the upper form retains some connection to the street.
4. We did not find the 3D models prepared by Mr Campbell very helpful. While they demonstrate that the amended proposal is taller than the approved scheme, without representation of the architectural detail and materiality they cannot demonstrate the likely visual impact for the observer.
5. We are not required to make a comparison to the approved form, and it was acknowledged that the amended proposal should be considered against the planning scheme as a whole and not a point-by-point assessment against the previous approval. However, the approved proposal does inform us what was previously considered to be acceptable. We note that as approved, the building would present as a relatively uniform singular building that we judge would tend to emphasise its presence behind the hotel. We find the uniform treatment of the street facades would have presented as a singular building form wrapping around the hotel. In effect, it was acceptable for the hotel to be seen in the context of a much larger built form, even if less tall. The amended proposal before us while significantly taller incorporates a greater degree of articulation through changes in materiality and form that we find will sit comfortably within the developing context of the city edge while allowing the hotel to be seen as a distinct building.
6. For the reasons outlined above, we find that the scale and architectural detail of the upper-level form is acceptable. We specifically address the impact on the historic hotel below.

IS THE TREATMENT OF THE HISTORIC SOUTHERN CROSS HOTEL ACCEPTABLE?

1. The Southern Cross Hotel on the corner of Market and Cecil Streets is included within the heritage overlay (HO289)[10] as individually significant. Significant places are described in the local policy at Clause 15.03-1 as:

Includes buildings and surrounds that are individually important places of either State, regional or local heritage significance, or are places that, together within an identified area, are part of the significance of a Heritage Overlay. These places are included in a Heritage Overlay either as an area or as an individually listed heritage place.

1. The City of Port Phillip Heritage Review provides the following Statement of Significance for the hotel.

The Southern Cross hotel was built for E. Broderick in 1870 at no.78 Cecil Street, corner Market Street, South Melbourne. It is historically and aesthetically important. It is historically important (Criterion A) along with other examples of its type for its capacity to demonstrate a past way of life wherein the corner pub was a meeting place within its neighbourhood accessible by foot with the houses and centres of employment that it was built to serve. It is aesthetically important (Criterion E) as a prominent and richly decorated hotel characteristic of the mid Victorian period and comparing with the former Albion hotel (1889) at 209 Clarendon Street.

1. A permit is required for demolition and buildings and works. External paint controls apply.
2. In addition to the provisions of the heritage overlay, we note that the objectives of DDO8 also touch on matters of heritage seeking 'to ensure that new development on sites containing or adjacent to a heritage place is of a form and scale that is respectful of the heritage place.'
3. The proposed amended scheme now incorporates the historic Southern Cross Hotel on the corner of Cecil and Market Streets. The hotel is to be restored externally and completely re-built internally to include a rooftop bar behind the historic parapet. Glazed weather protection walls would be placed inset from the parapets but visible from the street. A feature of the amended design is that the hotel while continuing to address Market and Cecil Streets, would also open on to a new entry plaza to the new centre, located immediately behind the hotel. The southern wall of the hotel would be completely re-built as a result, to incorporate new entries. The new development extends around the hotel and actually cantilevers over it to a small extent. This places some of the tallest elements of the development above and behind the historic hotel. (see Figure 8, above)
4. The applicant for review says this arrangement is detrimental to the hotel and would dominate it in scale to an unacceptable degree. They say the approved proposal provides an acceptable arrangement with a more modest scale and set back from the hotel and that this should be replicated. They referred to the heritage policy at Clause 15.03-1L and specifically the sightline diagram at Figure 8 of the policy.
5. Council says the proposed changes will enable the historic use to be restored while improving the environmental performance and restoring the heritage façade. External paint controls apply, and details of the conservation works including paint colours and finishes are required by condition.
6. The Council says it is inappropriate to apply a sight line control because it would limit the potential for a strategic site. Heritage policy does not require concealment in a context like this. With respect to the cantilever, they say Council's heritage advisor supported the application after reiterations responding to Councils concerns, including greater setbacks and vertical separation, and changes to the design to minimise impact on the heritage place.
7. The permit applicant submits that the design response protects and conserves the heritage values of the Southern Cross Hotel. They relied upon the heritage impact statement of Mr Raworth,[11] who concludes that:

The proposed development scheme achieves an acceptable balance between the expectations of heritage policy and the DDO. Key significant heritage fabric of the Southern Cross Hotel that contributes to the adjacent streetscape and an understanding of its three-dimensional form is retained and conserved. While involving substantial change, the adjacent development to the south and west outside the Heritage Overlay will provide carefully managed interfaces that celebrate the hotel as an architectural focal point, and provide a compatible, complementary setting. Although not meeting all Policy requirements, the high quality of the overall design outcome, the substantial amenity and community benefit that is to be provided the improved public realm outweigh areas of non-compliance and on this basis is considered acceptable.

1. The Tribunal finds the submissions by the Council and permit applicant persuasive. We accept that this is not a situation where a conventional approach to effectively conceal new development is appropriate. This is a location where more intensive development is sought, in a context where other heritage buildings have been retained amongst taller forms. We find that the setback of the new form from the Market Street façade of the hotel in combination with the vertical separation to the cantilever is sufficient to ensure the hotel can be appreciated as an independent form.
2. We understand that the re-build of the interior is necessary because of the extent of works around the hotel, but we are satisfied this does not amount to facadism because the new floors closely match the existing floors so that existing entries and windows can continue to function, ensuring an authentic streetscape experience. We find that the visible integration of the hotel with the entrance plaza to the new development is a positive design feature and will help the hotel to develop as a viable commercial operation. We understand that the southern wall of the hotel was never intended to be an exposed façade, thus it is not a concern that it be re-built with new openings.
3. We have considered the comparison of the amended proposal before us and the existing permit. Although this is not a 'beauty contest' and we are not required to find that the amended proposal is an improvement over the permitted scheme, we note that the existing permit does tell us what was then found to be acceptable. This was a form that although lower than the amended proposal, was still substantial and was effectively a unitary design, with one architectural treatment extending around the hotel, presenting as one large form. We note that the amended proposal is now considerably more articulated, and we find this will offset the increase in height.
4. For these reasons, we find the treatment of the hotel is acceptable and responsive to the heritage overlay and DDO8.

IS THE TREATMENT TO NORTHUMBERLAND STREET ACCEPTABLE?

1. As noted earlier the permitted scheme provided some activation to Northumberland Street in the form of a pedestrian entrance to a through link and some passive surveillance by offices.
2. The amended proposal has allocated two loading bays to this side of the development, including the large loading bay that will serve the supermarket. The smaller loading bay is located at the southern end and will serve the retail and offices. On the plans before us, there was to be an entry to the offices and back of house facilities to be located between the two loading bays, however the amended layout to the supermarket loading bay detailed in the NOD plans allows trucks to enter and leave without reversing has eliminated this entrance.
3. Similarly to the other elevations, Northumberland Street is addressed by a three to four level façade with taller elements set back behind.
4. The applicant for review said that this arrangement will result in Northumberland Street being little more than a service lane. Mr O'Farrell described the proposal as reducing Northumberland Street to a 'meagre little laneway'. He submitted that the proposal sets it up for 'a very bleak future'. They say it will lack any activation, and the loading bay activities will present an unattractive environment for pedestrians and an inappropriate response to the office entrances opposite. The architectural treatment would do little to mitigate this impact. They said this is contrary to the intention of policy that seeks to reinforce Northumberland Street as an important pedestrian link between Market Street and the markets.
5. Council was satisfied that with the improvements to the pavement and lighting, combined with the architectural treatment, the treatment to Northumberland Street would be acceptable and conflicts between service deliveries and market days could be managed through the conditions that limit delivery times.
6. The permit applicant agreed with Council and pointed to the architectural design and the proposed treatment of the lane including the suspended lighting.
7. The Tribunal agrees with the Council and the permit applicant that the proposed treatment of Northumberland Street is acceptable and meets the objectives of DDO8. We acknowledge that the loading bays will have some impact upon the pedestrian friendliness of the street and it is a fact that there will be less pedestrian supporting activity than the approved scheme. However, we accept that a large development has to locate service access somewhere and the proposed location appears to us to be the most appropriate one given the context.
8. We find that the architectural treatment in conjunction with the proposed improvements to the road would mitigate impact of the delivery bays so that the street should still be able to present as an attractive pedestrian link. We support the proposal to install catenary lighting system, and we observed that such a system is installed at the markets and is visible from the subject site. We find that the proposal to introduce a surface treatment to the street will also assist to indicate that this is a shared space.
9. Northumberland Street is one way from the south to the north. It is narrower to the southern end with very narrow footpaths provided each side. These widen slightly to the northern end (Figure 7). The evidence of Mr Gnanakone is that some of the public realm works within the laneway may not be possible due to the need to accommodate the exit from the supermarket loading bay.
10. In the hearing the urban design experts were asked about the potential to improve the pedestrian qualities of the street in the event that separate footpaths on both sides of the street could not be achieved. The potential for a full width pedestrian treatment, that is treating the street as a shared zone, was discussed. We generally support such an arrangement and encourage the permit applicant to explore this option in detail with the Council.
11. In summary, we agree that the approved scheme would provide a better pedestrian experience, however we are satisfied that the amended proposal will provide an acceptable pedestrian link because of the combination of improvements to the public realm, the architectural treatment that provides a pedestrian scale, and the conditions that limit access to the supermarket loading bay to outside the key market times.

Figure 9: Northumberland Street looking northwards (photo Tribunal's own)

1. DDO8 seeks to limit new crossovers to York Street and this is facilitated by this proposal which provides for car parking and loading access from Market and Northumberland Streets.
2. There are separate loading arrangements for each of the land uses:
   • The office/hotel loading bay is located on Market Street and is capable of accommodating an 8.8m medium ridged vehicle ('MRV'). The vehicle will be required to reverse into the loading bay. The two traffic experts before us were satisfied that this would be suitable subject to a loading management plan that includes a requirement for a spotter when the truck is reversing.
   • A retail loading bay is located off Northumberland Street towards the southern end. It accommodates a 6.4 small ridged vehicle ('SRV'). Vehicles would be required to reverse into this loading bay.
   • The supermarket loading bay is also located on Northumberland Street and is designed to require a reversing movement. This was not acceptable to the Council and the NOD includes a revised layout enabling trucks to enter and exit in a forward direction as described in amended plans dated December 2023. The supermarket loading bay can accommodate larger Heavy Rigid Vehicles ('HRV') up to 12.5 metres. Only one larger truck can be accommodated at a time.
3. Both traffic witnesses were satisfied that the two loading facilities on Northumberland Street were designed to meet the needs of the land uses. However, Mr Gnanakone expressed concern that neither bay could be accessed if an existing on-street loading bay at the southern end of the street adjacent to the Albion Hotel was retained. The evidence of Mr Morello was that this loading bay should preferably be removed.
4. We are persuaded by the evidence of Mr Gnanakone that the on-street loading bay would restrict the access of larger vehicles to the supermarket loading facility when occupied. It would also impede access to the smaller loading bay. We consider that the removal or relocation of the loading bay is required before the commencement of the development and have addressed this in the conditions. We note that the applicant on day four of the hearing tabled letters of support for the proposal and relocation of the loading bay. We have given no weight to these letters. The removal or relocation of the loading bay is a matter for Council as the road management authority.
5. The conditions require a loading management plan. They also require that loading occur outside of the hours of operation of the South Melbourne Market. Both traffic witnesses agreed that this limitation should apply only to the larger supermarket vehicles (HRV). We agree as it is these larger vehicles that have the potential to impact on traffic movements within this precinct at peak periods. We have amended this condition accordingly.
6. We note the concerns of Mr Gnanakone that these restrictions will mean that it is difficult to service the development within the hours provided. Mr Morello outlined how this might work over the day. We find that this is a matter for the permit applicant. The limitation of the restriction to only larger vehicles will mean that there is more flexibility to service the development throughout the day.
7. We note the constraints on traffic circulation identified and discussed by Mr Gnanakone including the one way traffic in Market Street and the bridge restrictions in Ferrars Street and City Road. Larger vehicles accessing the supermarket loading bay are required to negotiate the City Road bridge. We consider that these restrictions can be addressed in a loading management plan.

1. The amended proposal includes an intention to upgrade the public realm around the site. These are not documented in the planning drawings but are generally illustrated in considerable detail in the architectural report accompanying the application.
2. We note Ms Roberts considered that the detail of these public realm improvements was important to the project. She also considered the over landscape response 'integral' to the success of the architecture and noted the lack of a landscape plan detailing the proposed improvement in the public realm and proposed landscape on structure. We agree with Ms Roberts that both a public realm improvement plan and a detailed landscape plan need to be developed providing a degree of certainty about what is to be achieved.
3. We acknowledge that works in the public realm are a matter for Council to consider. We have commented elsewhere that we see the improvements to the public realm in Northumberland Street as a critical part of the proposal and while the works are not fully documented and subject to further discussions with Council, we think it is important that a commitment to provide works to the same or equivalent standard as illustrated is formally confirmed. For this reason, we have included the more detailed condition for the public realm plan that refers to the illustrated architectural report (Figure 10).
4. We understand that Council has expressed reservations about allowing pergola structures and seating in the public realm, for fear of this space being privatised. The Tribunal finds that allowing some structures such as pergolas and seating would assist the development to fit in with the ground plane and we note there are similar structures to part of the nearby 'Spotlight' development. We encourage Council to consider the potential benefits for example to the historic hotel, to improve its viability in continuing the original function, and to spaces such as Cecil Street and York Street where the wide pavement will only be a transitory space without the ability to have some opportunities to sit and enjoy some services from nearby establishments.

Figure10: Render, Cecil Street looking north (Woods Bagot, Architectural Town Planning Pack 11/08/2023)

1. This is an application to amend an existing permit. However, the extent of the proposal is very different to that originally approved and in effect requires a review of all conditions of permit to ensure that they are fit for purpose. This was not achieved in the Notice of Decision and the draft conditions circulated by the responsible authority on 25 October 2024 took the opportunity to refine the drafting overall as discussed at the hearing. We support this approach given the significant differences between the existing approved scheme and what is now before us. Other conditions have been updated to address the matters raised in our reasons, including the conditions regarding the car park use regulation and the changes to the Northumberland Street elevation.
2. The respondent also supported this approach submitting that:[12]

Here, the proposal is a substantial change from the approved development scheme. However, the Respondent acknowledges that the proposed conditions in the Notice of Decision and in Council's draft permit conditions relate to the amendment of the permit.

1. We provided an interim order in this matter that allowed the parties to make a further submission to the Tribunal (and copy all parties) limited to a response to the draft permit preamble and the draft permit conditions circulated by the responsible authority on Friday 25 October 2024. The parties were provided with the opportunity to make a written reply to any new submissions received (no later than 4 November 2024). We have considered these additional submissions in forming our view on the permit conditions.
2. In determining the conditions of amended permit we have had regard to the submissions of the parties as well as to our findings above. We have also considered the format of the permit, as did Council's draft in the context of the recent changes to the format of permits from the 1 December 2024. We remain concerned that the permit conditions remain a blend of the approved scheme and proposal before us, when the extent of changes is so significant. We have endeavoured to minimise any discrepancies, but the result is not as streamlined as might be preferred.
3. The applicant for review questioned the wording of the condition relating to car parking allocation.
4. We have amended the car parking conditions to require a car park management plan as recommended in the evidence of Mr Gnanakone and supported by Mr Morello. We have required that the plans be updated to reflect the use of the land as a 'car park' and remove any specific allocations to any use. We have required a minimum number of spaces within the car park use to be made available to the office use. We have restricted by condition any direct allocation in any way of car spaces to the supermarket use to ensure the car park is available to the general public.
5. The applicant for review also questioned the wording of the condition requiring car spaces to the 'independently accessible'. We have deleted this requirement as no spaces are shown on the plans in tandem.
6. The applicant for review questioned whether the condition relating to the loading and waste collection management plan need to make it clear that all trading hours of the South Melbourne Market are contemplated in the restrictions created by the condition (e.g. night markets etc). The Council submitted that all trading hours should be accommodated. The applicant did not contest this. As set out above we have limited this to the larger trucks only.
7. We have included a detailed overall public realm improvement plan as discussed in our reasons. We note that the current permit separates out the upgrade works to occur in Northumberland Street in a separate plan. This approach was not disputed by the applicant. Our preference was to address the public realm as a totality but we have retained the approach in the draft conditions. We have provided the additional words 'or updated version' in the Northumberland Street upgrade preamble.
8. The current permit also included a requirement for a Section 173 Agreement for the Northumberland Works. Council's draft conditions extended this to the additional overall improvements. We also question the need for a Section 173 Agreement where a condition would suffice, but as this is an amended permit we have retained the approach in the draft conditions.
9. We also note that the waste management plan condition was separated from the loading and waste collection management plan which seems inefficient, but we have retained this approach as per Council's draft conditions.
10. Additional tidy up conditions include general amenity conditions as supported in the evidence of Ms Ring.
11. We note that not all of the land is affected by the Environmental Audit Overlay. The original permit required a preliminary environmental assessment. Council and the permit applicant agreed that this condition should apply to all of the land and we have retained the condition.
12. We note that the permit expiry was extended and now expires on 25 May 2025 if the development has not commenced. This was not sought to be altered in the amended permit. We have added an expiry for the car park use.

1. Clause 10.04 of the Scheme requires the decision maker to integrate the range of relevant policies and balance conflicting objectives in favour of net community benefit and sustainable development for the benefit of present and future generations. As evident from our reasons, there are multiple objectives to be balanced in this permit application.
2. For the reasons given above, the decision of the responsible authority is varied. An amended permit is granted subject to conditions.

78 Cecil Street, 80-94 Cecil Street, 119-125 Market Street, 3-5 Northumberland Street, 7 Northumberland Street, 146-164 York Street, 166 York Street, 168 York Street and 170 York Street SOUTH MELBOURNE VIC 3205

Matter for which the permit has been granted by the Tribunal

Use of the land for a car park in a Commercial 1 Zone

Use of the land for a car park in a Commercial 2 Zone

Demolish or remove a building in a Heritage Overlay, Schedule 289.

Construct a building or construct or carry out works in a Heritage Overlay, Schedule 289.

Construct a building or construct or carry out works in a Design and Development Overlay, Schedule 8.

Reduce (including reduce to zero) the number of car parking spaces required under Clause 52.06-5.

Matter for which the permit has been granted by Port Phillip City Council

Construct a building or to construct or carry out works in a Commercial 1 Zone

Construct a building or to construct or carry out works in a Commercial 2 Zone.

Compliance with documents approved under this permit

1. At all times what the permit allows must be carried out in accordance with the requirements of any document approved under this permit to the satisfaction of the responsible authority.

1. Before the use or 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 an electronic copy must be provided. The plans must be generally in accordance with the plans submitted with the application, identified as the plans drawn by Woods Bagot dated 11/08/23 and Council date stamped 16/08/2023 but modified to show:

(a) An updated development schedule.

(b) Removal of the proposed pedestrian crossing shown within York Street.

(c) Amended ground clearance diagrams for ingress and egress demonstrating a vehicle proposed at various locations between ramp transitions. The ground clearance diagram for ingress must demonstrate that a B99 vehicle would not scrape the ground level of basement 1.

(d) The position and annotated size and water reuse of the rain water tanks and the fire test water tank.

(e) Annotations added for any Electric Vehicles (EV) charging infrastructure including bicycle spaces.

(f) Provide details and annotations that windows and glazed doors are to be double-glazed with details provided of the sash operation of windows as appropriate.

(g) Indicate the location of condenser units and external hot water systems on the drawings.

(h) Annotate the provision of taps and floor waste gullies to all balconies and courtyards as required.

(i) The location of all external plant equipment (including air conditioning, heating units, hotwater systems, etc.) on the relevant elevation plans with accurate dimensions.

(j) All plan and elevation drawings fully dimensioned, including natural ground level, floor levels, and incremental and total wall and building heights and lengths, with heights to be expressed to Australian Height Datum (AHD) and/or reduced levels.

(k) Any changes in accordance with the Northberland Street Public Realm Upgrade Plan at condition 4 or the Public Realm Improvement Plan at condition 5.

(l) Any changes in accordance with the recommendations of the Sustainable Management Plan at condition 9.

(m) Any changes in accordance with the recommendations of the Water Sensitive Urban Design report at condition 10.

(n) The proposed location of Urban Art in accordance with Condition 8.

(o) Any changes requires by the Waste Management Plan at condition 11.

(p) Any changes in accordance with the Landscape Plan at condition 12.

(q) The changes, particularly the redesigned loading bay arrangement to the Supermarket on Northumberland Street, that are shown in the Revised Plans prepared by Woods Bagot Plan no's TP1207, TP1208, TP1209, TP1210, TP1211, TP1212, and TP1213 dated 13/12/2023 and council date received 2/01/2024 and consequential amendments to the other plans to be endorsed pursuant to this condition and further amended to show:

1. removal of the trolley bay shown on Basement Level B2, plan TP1208 dated 13/12/2023, located between the substation and car space number PB2.104;
2. any End Of Trip facilities to be used by staff of the supermarket use to be relocated outside of any of the land located within the Commercial 2 Zone;
3. to the extent that the bike parking area shown on Basement Level B1, plan TP1209 dated 13/12/2023, is to be used by staff of the supermarket, amend access to the bike parking area to either provide for access from Cecil Street or Market Street via the commercial lobby, or alternatively via an alternative route located on land outside of the Commercial 2 Zone, or otherwise provide bike parking for supermarket staff in a location on the land that is outside the Commercial 2 Zone;
4. the deletion of the annotations and associated plan colouring that designate any of the car spaces as 'commercial' or 'supermarket' with all car parking spaces to be noted as 'car park use subject to car park management plan'.
5. The allocation of the back of house areas. All back of house areas for the supermarket are to be located outside the Commercial 2 Zone.
6. relocation of the Column on Grid Line 11, adjacent to spaces PB1.068-71 on Level B1 and PB02.097-102 on Level B2 to avoid being located within the door opening envelope;
7. trolley bays next to spaces PB2.104 and PB2.048 to be relocated to avoid being located within the door opening envelopes of the adjacent car spaces;
8. adjust the size of car spaces PB2.010 PB3.015, PB2.017 and PB3.016 to ensure they are a minimum of 2.9m wide, or have a column or structure located within the envelope of the carspaces, or designated as spaces for small cars, or adjust to ensure dimensions are compliant with AS2890.1:2004.
9. All accessible spaces designed in accordance with Australian Standard AS2890.6-2009 (disabled) and the Building Code of Australia.

(r) Revised west elevation TP1302 to reflect the changes in condition 1m).

(s) Correct labelling of materials on the west elevation.

(t) Detailed architectural drawings of the façade details, lighting and the tower cantilever over the heritage hotel building at 78 Cecil Street.

(u) Measured drawings of the retained sections of the façade of the Southern Cross Hotel building at 78 Cecil Street.

(v) Details of the awning design over the footpath to ensure adequate weather protection would be provided for pedestrians.

(w) Details of the back of house services for the small ground floor tenancies.

(x) Details of the integrated signage for the development

(y) A notation that the public on-street loading bay in Northumberland Street must be removed or relocated to the satisfaction of the responsible authority.

(z) The colour scheme for the Southern Cross Hotel in accordance with condition 37.

1. Prior to the commencement of the development, the on-street loading bay in Northumberland Street adjacent to the Albion Hotel must be removed or relocated to the satisfaction of the responsible authority.

Northumberland Street Public Realm Upgrade Plan

1. Before the development starts, or by such later date as approved in writing by the Responsible Authority, a Northumberland Street Public Realm Upgrade Plan is to be prepared and approved to the satisfaction of the Responsible Authority. When approved, the Northumberland Street Public Realm Upgrade Plan will be endorsed and will form part of this permit. The Public Realm works are to be designed in conjunction with Council's Planning and Open Space departments and are to be generally in accordance with the City of Port Phillips' Activating Laneway Strategy 2011, Design and Technical Standards and associated guidelines in relation to landscape design, planting species, materials and finishes (or any updated technical standard) and should include, but not be limited to:

(a) Trees interspersed along the length of the street in appropriate locations. Trees interspersed along the length of the street in appropriate locations considering the requirements of the supermarket loading bay. Tree species must be approved by Council's arborist and must not unreasonably interfere with the operation of Northumberland Street.

(b) A shared pavement or new footpath, paving, kerb and channel.

(c) Replacement and refinishing of the road surface.

(d) Additional lighting to improve safety and surveillance for pedestrians.

(e) Minimal loss of on street car parking.

All works shown in the approved Northumberland Street Public Realm Plan must be completed within 6 months of the date of completion of the development.

1. Before the development starts (other than demolition, works to remediate contaminated land and excavation), an Overall Public Realm Improvement Plan is to be prepared and approved to the satisfaction of the Responsible Authority. When approved, the Overall Public Realm Improvement Plan will be endorsed and will form part of this permit. The Plan must show the public realm works depicted on the submitted ground floor plan (A-TP1210, Revision H) and have regard to the report marked "80 Cecil Street A-9001 - Architectural Town Planning Report", prepared by Woods Bagot and Oculus dated 11 August 2023, and in particular pages 34-63 of that report, and show the following:

(a) Treatment of the public realm within Market Street, Cecil Street and York Street.

(b) Treatment of the public realm within Northumberland Street having regard to the Northumberland Street Public Realm Upgrade Plan in condition 3.

(c) Location of bicycle parking.

(d) Consideration of parking wayfaring/ real time signage.

(e) Details of infill tree planting, planting areas and rain gardens with additional landscaping to be provided from that shown on the ground floor plan. New planting species to be confirmed by Council.

(f) A requirement that new street trees and public realm landscaping must be maintained by the owner for a period of 12 months. Any diseased or damaged trees must be removed and replaced at the cost of the owner to the satisfaction of the Responsible Authority.

(g) Details of the garden beds with design to be simplified and consolidated.

(h) The redesign or removal of the pergola structures along the York Street and Cecil Street frontages.

(i) Details of the proposed new/upgraded public lighting, including a lighting design to demonstrate that all proposed lighting arrangement complies with relevant Australian Standards.

(j) Undergrounding of powerlines including all frontages and north eastern and south eastern corners of Northumberland Street.

(k) Details of the visitor bike and micro mobility parking around the site perimeter at convenient locations, coordinated with building entries and circulation requirements.

(l) Details of all paving and footpath treatments including details of the treatment of level changes. Pedestrian access must comply with the Disability Discrimination Act 1982. Materials and details must be to Council standards.

All works shown in the approved Overall Public Realm Improvement Plan must be carried out to the satisfaction of the responsible authority.

1. Before the development starts (other than demolition or works to remediate contaminated land), the owner must enter into an agreement under Section 173 of the Planning and Environment Act 1987 with the Responsible Authority. The agreement must be in a form to the satisfaction of the Responsible Authority, and the owner must be responsible for the expense of the preparation and registration of the agreement, including the Responsible Authority's reasonable costs and expense (including legal expenses) incidental to the preparation, registration and enforcement of the agreement. The agreement must contain covenants to be registered on the Title of the property so as to run with the land pursuant to Section 181 of the Section 173 of the Planning and Environment Act 1987, and must provide for the following:

(a) Any costs associated with the Northumberland Street Public Realm Upgrade and Overall Public Realm Improvement Plan must be paid for by the owner

(b) Tree species must be approved by Council's arborist and must not unreasonably interfere with the operation of Northumberland Street

(c) Trees must be maintained by the owner for a period of 12 months. Any diseased or damaged trees must be removed and replaced at the cost of the owner to the satisfaction of the Responsible Authority.

(d) Road surface to be asphalt to the satisfaction of the Responsible Authority.

The agreement will be registered on Title in accordance with Section 181 of the Planning and Environment Act 1987. A dealing number must be provided to the Responsible Authority.

1. Before the development starts, a report and plan by a suitably qualified Arborist to comply with AS 4970 - 2009 Tree protection on development sites setting out how the existing street trees along Cecil Street and York Street will be protected during construction, must be submitted to, approved by and be to the satisfaction of the Responsible Authority. When approved the report and plan will be endorsed and form part of the permit. The tree protection measures outlined in the report must be complied with to the satisfaction of the Responsible Authority.

1. Before the development starts (other than demolition or works to remediate contaminated land), an urban art plan in accordance with Council's Urban Art Strategy must be submitted to, be to the satisfaction of and approved by the Responsible Authority. The value of the urban art must be at least 0.5% of the total building cost of the development to the satisfaction of the Responsible Authority. Urban art in accordance with the approved plan must be installed prior to the occupation of the building to the satisfaction of the Responsible Authority.

1. Before the development starts (other than demolition or works to remediate contaminated land) a Sustainable Management Plan (SMP) must be submitted to and approved by the Responsible Authority. The report must be generally in accordance with the SMP prepared by Arup dated 11 August 2023, submitted for the amendment application, but modified to provide details of stormwater treatment.

Upon approval the SMP will be endorsed as part of the planning permit and the development must incorporate the sustainable design initiatives outlined in the SMP to the satisfaction of the Responsible Authority.

1. Before the development starts (other than demolition or works to remediate contaminated land) a Water Sensitive Urban Design Report that outlines proposed water sensitive urban design initiatives must be submitted to, be to the satisfaction of and approved by the Responsible Authority. The report must demonstrate how the development meets the water quality performance objectives as set out in the Urban Stormwater Best Practice Environmental Management Guidelines (CSIRO) or as amended.

When approved, the Report will be endorsed and will then form part of the permit and the project must incorporate the sustainable design initiatives listed.

1. Before the development starts, an amended Waste Management Plan must be submitted to and approved by the Responsible Authority. The Waste Management Plan must be generally in accordance with the Waste Management Plan submitted with the amendment application prepared by MGA, dated 8 August 2023, but modified to show the following:

(a) The quantum of the waste for each use.

(b) The 660 litre bins proposed for organic waste to be replaced by bins that have a maximum size of 240 litres.

(c) Consideration of the provision of a commercial dehydrator or similar equipment for organic waste.

(d) Details of the responsible party/role for the management of waste rooms and equipment including the cleaning and removal of any hard waste/E-waste material from the development.

1. Before the development starts (other than demolition or works to remediate contaminated land), a detailed Landscape Plan must be submitted to, approved by and be to the satisfaction of the Responsible Authority. When the Landscape Plan is approved, it will become an endorsed plan forming part of this Permit. The Landscape Plan must incorporate:

(a) Details of landscaping to the communal terrace areas;

(b) A survey plan, including botanical names, of all existing vegetation/trees to be retained;

(c) A planting schedule of all proposed vegetation including botanical names; common names; pot sizes; sizes at maturity; quantities of each plant; and details of surface finishes of pathways and driveways;

(d) Landscaping and planting within all open space areas of the site;

(e) Water sensitive urban design

(f) Details of all planters including dimensions, irrigation and soil media.

(g) A landscape maintenance plan.

All species selected must be to the satisfaction of the Responsible Authority.

1. The landscaping as shown on the endorsed Landscape Plan must be carried out and completed to the satisfaction of the Responsible Authority before the occupation of the development and/or the commencement of the use or at such later date as is approved by the Responsible Authority in writing.

1. The landscaping as shown the endorsed Landscape Plan must be maintained, and any dead, diseased or damaged plant replaced in accordance with the landscaping plan to the satisfaction of the Responsible Authority.

1. The owner of the land must retain Woods Bagot to complete the design and provide architectural oversight of the delivery of the detailed design as shown in the endorsed plans and endorsed schedule of materials and finishes during construction unless with the prior written approval of the Responsible Authority.

1. All external materials, finishes and colours as shown on the endorsed plans must not be altered without the written consent of the responsible authority.

Layout and use of the development not to be altered

16A The use and development on the land as shown on the approved plans must not be altered or modified without the prior written consent of the Responsible Authority.

1. Before the occupation of the development allowed by this permit, all new or extended walls on or facing the boundary of adjoining properties and/or a laneway must be cleaned and finished to a uniform standard to the satisfaction of the Responsible Authority. Unpainted or unrendered masonry walls must have all excess mortar removed from the joints and face and all joints must be tooled or pointed also to the satisfaction of the Responsible Authority. Painted or rendered or bagged walls must be finished to a uniform standard to the satisfaction of the Responsible Authority.

1. Before the development commences, excluding remediation works necessary to facilitate the testing, the applicant must carry out a Preliminary Environmental Assessment (PEA) of the site to determine if it is suitable for the intended uses. This PEA must be submitted to, and be approved by the Responsible Authority prior to the commencement of the development. The PEA should include:

(a) Details of the nature of the land uses previously occupying the site and the activities associated with these land uses, including the filling of the site. This should include details of how long the uses occupied the site.

(b) A review of any previous assessments of the site and surrounding sites including details of the anticipated sources of any contaminated materials.

Should the PEA reveal that further investigative or remedial work is required to accommodate the intended uses, then prior to the commencement of the development (excluding demolition), the applicant must carry out a Comprehensive Environmental Assessment (CEA) of the site to determine if it is suitable for the intended uses. This CEA must be carried out by a suitably qualified environmental professional or a person who is acceptable to the Responsible Authority. This CEA must be submitted to, and be approved by the Responsible Authority prior to the commencement of the development.

Where a CEA is provided, all the conditions of the assessment must be complied with to the satisfaction of the Responsible Authority prior to the occupation of the building. Written confirmation of compliance must be provided by a suitably qualified environmental professional or other suitable person acceptable to the Responsible Authority. In addition, sign-off must be in accordance with any requirements in the Statement of conditions regarding verification of required works.

1. All service pipes/service units (excluding down pipes, guttering and rainwater heads) must be concealed from view from the public realm and any screening devices suitably integrated into the design of the building to the satisfaction of the Responsible Authority.

1. No equipment, services and/or exhausts other than those shown on the endorsed plan must be erected on external walls or above the roof level of the building unless otherwise agreed to in writing by the Responsible Authority.

1. Before the use or occupation of the development starts, the internal areas set aside for the parking of vehicles and bicycles and access lanes as shown on the endorsed plans must be:

(a) Constructed;

(b) Properly formed to such levels that may be used in accordance with the plans;

(c) Surfaced with an all weather surface or seal coat (as appropriate);

(d) Drained and maintained;

(e) Line marked to indicate each car space, bicycle space, loading bay and/or access lane; and

(f) Clearly marked to show the direction of traffic along access land and driveways.

All to the satisfaction of the Responsible Authority.

1. All car parking spaces shown on the endorsed plans are to be included as part of the car park use of the land to the satisfaction of the responsible authority.
2. No car parking spaces within the car park use are to be allocated in any way for exclusive use by the supermarket to the satisfaction of the responsible authority.
3. Before the development starts, (other than demolition or works to remediate contaminated land), a Car Parking Management Plan must be prepared to the satisfaction of the Responsible Authority and endorsed as part of this permit. The Plan must include:

(a) Information concerning how the car park is to be managed and operated.

(b) A minimum of 138 car spaces to be available to the public. These car spaces must be made available for 2 hours free or discounted parking to encourage turnover of spaces.

(c) A minimum of 189 car spaces are to be made available by the car park operator for allocation to office use on the land.

Once submitted and approved, the Car Parking Management Plan must be carried out to the satisfaction of the Responsible authority.

1. Car and bicycle parking and loading areas and access lanes must be kept available for those purposes at all times and must not be used for any other purpose such as storage.

1. Before the occupation of the development allowed by this permit, a minimum of 3 car spaces must be provided for the exclusive use of disabled persons. The car space must be provided as close as practicable to the front entrance of the building and must be clearly marked with a sign to indicate that it must only be utilised by disabled persons. The minimum dimensions of the car space must be consistent with Australian Standards to the satisfaction of the Responsible Authority.

1. Before occupation, a green travel plan to the satisfaction of the Responsible Authority, prepared by a suitably qualified professional, must be submitted to and approved by the Responsible Authority. The green travel plan must provide detailed advice regarding how traffic movements and staff parking will be managed and ensure an alternative, non-private vehicle transport modes will be encouraged. The plan should also identify specific opportunities for the provision of more sustainable transport options and encouragement of their use. The plan must include but not be limited to:

(a) Tram, train and bus timetables be installed in prominent locations in lifts and public areas (on noticeboards, etc);

(b) Bicycle parking areas to be installed in well secured and prominent locations;

(c) Install signs in prominent locations advising of the location of existing and proposed share car schemes, bicycle parking facilities for residents and visitor, tram stops, taxi ranks, railway stations, bus stops and bicycle paths.

(d) Ensure that access to the on-site parking is restricted and controlled.

(e) Establishment of a car-pooling database for employees of the development.

(f) Specific targets to guide the plans ongoing implementation;

(g) Identify persons responsible for the implementation of actions;

(h) Estimate timescales and costs for each action;

(i) Include a plan for monitoring and review of the Travel Plan on an annual basis for at least three years.

1. Prior to the occupation of the building approved under this permit, vehicle crossings must be constructed in accordance with Council's current Vehicle Crossing Guidelines and standard drawings to the satisfaction of the Responsible Authority. The following requirements also apply to the satisfaction of the Responsible Authority:

(a) Standard vehicular crossings must be constructed and/or widened at right angles to the road to suit the proposed driveways incorporating bluestone pitchers or suitably shaped and coloured concrete kerb and channel to match the existing laneway or kerb and guttering (as appropriate),

(b) Any redundant crossing (or part thereof) must be removed and the footpath and kerb reconstructed incorporating bluestone pitchers or suitably shaped and coloured concrete kerb and channel to match existing kerb and guttering (as appropriate) to specifications to the satisfaction of the Responsible Authority and at no cost to the Responsible Authority.

(c) Any new car space(s) created along the street frontage of the site as a result of the removal of the crossing must be line marked to the satisfaction of the responsible authority. Any surplus bluestone pitchers must be returned to Councils depot, at cost to the applicant or owner.

(d) Any proposed vehicular crossing must have satisfactory clearance of any side-entry pit, power or telecommunications pole, manhole cover or marker, or street tree. Any relocation, alteration or replacement required must be in accordance with the requirements of the relevant Authority and must be at the applicant's expense.

Applicant to Pay for Reinstatement of Footpaths/Crossings

1. Prior to the completion of the development the Applicant/Owner must do the following things to the satisfaction of the Responsible Authority:

(a) Pay the costs of all alterations/reinstatement (including signage and line marking) of Council and Public Authority assets necessary and required by such Authorities for the development.

(b) Obtain the prior written approval of the Council or other relevant Authority for such alterations/reinstatement.

(c) Comply with conditions (if any) required by the Council or other relevant Authorities in respect of alterations/reinstatement.

1. Before the development starts (other than demolition or works to remediate contaminated land), all the titles within the planning unit must be consolidated under the Subdivision Act 1988 or otherwise re-subdivided.

1. No buildings or works are to be constructed over any easement or other restriction on the land or any sewers, drains, pipes, wires or cables under the control of a public authority without the prior written consent of the relevant authority and the Responsible Authority.

Noise Limits for Commercial, Industrial and Trade Premises

1. All air conditioning and refrigeration plant must be screened and baffled and/or insulated to minimise noise and vibration to ensure compliance with noise limits determined in accordance with Division 1 and 4 of Part 5.3 - Noise, of the Environment Protection Regulations 2021 to the satisfaction of the Responsible Authority.

1. Without the further written consent of the Responsible Authority no goods are permitted to be stored or left exposed outside the building so as to be visible from any public area.

1. External lighting of the areas set aside for car parking, access lanes and driveways must be designed, baffled and located to the satisfaction of the Responsible Authority to prevent any adverse effect on adjoining land.

Ground level retail and supermarket windows to remain clear of all obstructions

1. All Supermarket and other ground floor retail windows to be kept clear of obstructions and to limit any advertising or notices to no more than 20% of the window area to the satisfaction of the responsible authority.

1. Before endorsement of plans, including any demolition works, a fully detailed 'demolition method statement' must be submitted to and approved by the Responsible Authority. When approved, the statement will be endorsed and will then form part of the permit. The 'demolition method statement' must:

(a) Fully describe and clearly demonstrate the methods of dismantling of the heritage fabric, restoration and repair and the subsequent reconstruction of the building at 78 Cecil Street.

(b) Include reference to the staging of demolition and reconstruction works on the site.

(c) Detail the necessary protection works required during the demolition works to protect those parts of the building to be retained. Once approved by the Responsible Authority, all buildings and works must be in accordance with the demolition method statement.

Colour Scheme for Southern Cross Hotel Building

1. Before the development including demolition is commenced the following information, prepared by a suitably qualified consultant must be submitted to the satisfaction of the responsible authority:

(a) An authentic colour scheme for the Southern Cross Hotel based on historic and/or physical evidence.

(b) A schedule of conservation works for the Southern Cross Hotel façade

Implementation Report for Environmentally Sustainable Design

1. Prior to the issue of any Certificate of Occupancy or Certificate of Final Inspection for the development approved by this permit, an ESD Implementation Report (or reports) from a suitably qualified person or company, must be submitted to and endorsed by the Responsible Authority. The Report must confirm that all ESD initiatives in the endorsed SDA/SMP and WSUD report have been implemented in accordance with the approved plans to the satisfaction of the Responsible Authority. The ESD and WSUD initiatives must be maintained throughout the operational life of the development to the Satisfaction of the Responsible Authority.

1. The loading and unloading of goods from vehicles must only be carried out on the subject land within the designated loading bays, as detailed on the endorsed plans, and must be conducted in a manner which does not cause any interference with the circulation and parking of vehicles on the land to the satisfaction of the Responsible Authority.

1. Before the development starts (other than demolition or works to remediate contaminated land), a Loading and Waste Collection Management Plan addressing each loading bay must be prepared to the satisfaction of the Responsible Authority and endorsed as part of this permit. The Plan must include the following matters:

(a) Details of deliveries and waste collection frequency per week for each land use.

(b) Timing of deliveries to the supermarket loading bay so that there is no queuing in Northumberland Street.

(c) Deliveries and waste collection for the Supermarket using Heavy Rigid Vehicles must not occur during operating hours of the South Melbourne Market.

(d) Restrictions on size and height of vehicles to accommodate circulation requirements and bridge clearances.

(e) Provision of pedestrian warning lights and cautionary signage at entries.

(f) A spotter to be onsite to guide trucks reversing into the loading bay to Market Street.

Once submitted and approved, the Loading and Waste Collection Management Plan must be carried out to the satisfaction of the Responsible authority.

1. The use and development hereby permitted must be managed so that the amenity of the area is not detrimentally affected, through the:

(a) transport of materials, good or commodities to or from the land;

(b) appearance of any building, works or materials;

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

(d) presence of vermin.

1. Once the development has started it must be continued and 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 3 years of the issued date of this permit.

(b) The development is not completed within 4 years of the issued date of this permit.

(c) The use of the land for a car park does not start within 2 years of completion of the development.

The Responsible Authority may extend the periods referred to if a request is made in writing:

• Before or within 6 months after the permit expiry date, where the use or development allowed by the permit has not yet started; and
• Within 12 months after the permit expiry date, where the development allowed by the permit has lawfully started before the permit expires.

[1] The application was referred to the Head, Transport for Victoria under Clause 66.02-11. No objection was received and no conditions were required by the authority.

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

[3] Issue date 1 May 2022. Note that the permit expiry has been extended by the responsible authority to 1 May 2025.

[4] The Supreme Court in Mondib Group Pty Ltd v Moonee Valley City Council [2021] VSC 722 found that it is open to us to consider transformative changes to an existing permit.

[6] Council is currently seeking authorisation for the amendment.

[7] Plans prepared by Woods Bagot circulated on 23 October 2024.

[8] Town Planning Report Urbis August 2023.

[12] Further submissions on conditions 30 October 2024.