1. The Information section of these reasons identify that there are a variety of planning controls affecting this site, culminating in a number of planning permissions being required for this proposal. Suffice to say, the building and all of the land uses require planning permission.
2. The Council is supportive of the proposed development and land uses having regard to the various planning controls and relevant planning policies. In regard to the Land Subject to Inundation Overlay (LSIO), the Council defers to Melbourne Water and its concerns. The Council's position is that the proposal is an acceptable outcome under the planning scheme. The Council would have granted planning permission were it not for the objection lodged by Melbourne Water expressing concerns related to the safety risks associated with potential flooding of the site and surrounds.
3. The Council and Mr Logan have assessed the various planning controls and policies and provided detailed reasons about why this proposal is acceptable. I accept their respective analysis and findings. I agree with the Council's overview of the planning merits of the proposal as outlined in paragraphs 8, 9, 10, 11 and 12 of its submission. Paragraph 14 of Council's submission states:

In summary, Council was of the view that the proposed design will provide a suitable balance between activation and visual interest at ground level, while necessarily avoiding the provision of uses at ground level that would be at odds with the flood risk on the site.

1. The key issue in this case is the acceptability of this proposal having regard to the safety of human life in a flood event. The applicant submits the key consideration in this case is the management of the risk to people working on this site that is located within the Yarra River floodplain. The whole of this site and all surrounding land, including much of Flockhart Street, is included in the LSIO.

Extract of LSIO map in Council's submission with site identified by red arrow

1. Melbourne Water considers the site is inappropriate for the proposed use and development due to an extreme flood hazard. It says permitting this proposal would unacceptably increase the overall vulnerability of the site, its occupants and emergency services personnel to this extreme flood hazard, including a significant risk to life and safety. These concerns are the reasons why this proposal was refused. Hence, the remainder of these reasons focus upon this key issue.

1. The nature of the flood hazard in this case is the potential flooding of the Yarra River. Such an event occurs due to widespread rainfall within the broader Yarra River catchment. Melbourne Water advises the catchment area relevant to the location of this site is approximately 3,740 square metres. The characteristics of this type of river flooding means longer lead times and lower speeds/velocity than flash flooding. This means a longer lead time to the commencement of the flooding, a period of time when the peak level is experienced, and a slow dissipation of the flood waters.
2. Melbourne Water advises flow records for the Yarra River are available from 1889 onwards. Melbourne Water states, in that time, the site would have flooded three times - July 1891, December 1934, and July 1952. Melbourne Water says historical information suggests the area could also have flooded in 1863.
3. The mapping of the LSIO is meant to be indicative of the anticipated 1/100 year flood event. In this case, the mapping is based upon information including the 1934 flood event. The applicant's engineering witnesses do not wholeheartedly agree with Melbourne Water that the 1934 flood event is representative of the 1/100 year flood event. Assoc. Prof. Coombes considers the maximum flood event occurred in 1863 with a flow magnitude 'somewhat but not alarmingly higher'. He says what appears to be used in the mapping is an assumed maximum flood rather than a 1/100 year event. He also considers the frequency of these events are contested and unconfirmed. Assoc. Prof. Coombes suggests the depth of water in a 1/100 year event now is probably less because the characteristics of the catchment have changed. Melbourne Water points out neither witness offered any alternative, nor any particular means by which to ascertain or measure any alternative. I agree with this.
4. In any event, Assoc. Prof. Coombes orally stated that he suspects whether 1934 is the 1/100 year flood event is not important to this case. I agree with him because what is not in dispute between Melbourne Water and the engineering witnesses is that during a 1/100 year flood event, the site will flood to depths of between 1.3 and 3 metres. Also, Flockhart Street (alongside this site) will flood to depths of around 3 to 3.75 metres. It is the risks associated with this magnitude of flooding together with the characteristics of the flooding that is at issue in this case.
5. An extract of Melbourne Water's flood depth contour map is shown on the following page. The flood depths are difficult to discern on this map. Hence, I have included some of the explanation of this map given by Melbourne Water during the hearing.

Extract from figure 3 in Melbourne Water's submission

1. Melbourne Water explained that the centre of the site has a flood depth of about 2 metres. To the east of the centre, the depth increases to 2.75 metres and at the southeast end of the site is a depth of 3.5 metres. To the west of the centre of the site, the depth increases to 3 metres and then to 3.25 metres at the centre of the Flockhart Street frontage. The flood depth along Flockhart Street is 3.75 metres adjacent to the northwest corner of this site. Further to the south of the site, the flood depth drops to 0.5 metres just to the north of the intersection of Flockhart and Shamrock Streets.

1. For the last hearing day, the applicant prepared and circulated a plan indicating the flow of water across the site.

Extract of plan prepared by Storm Consulting of flow of water

1. Melbourne Water agrees on the direction of flow shown on this plan but is uncertain about the nominated speed/velocity. This is because the applicant's plan is based on a report[2] that Melbourne Water says it has not verified and adopted. I am not persuaded the speed/velocity is a determinative flooding characteristic in this case. This flow plan was prepared to assist the Tribunal and the parties in determining what extent of barricades are necessary to prevent cars left in the undercroft area from floating into the Yarra River and potentially becoming a flood hazard. This flow path together with the depth of the flood waters that is generally agreed by Melbourne Water and the engineering witnesses are sufficient flood characteristics to determine the need for barricades.
2. It is also relevant to be cognisant of the fact that there will be other flooding events that occur, e.g. a 1/10 year event, a 1/20 year event and a 1/50 year event. The applicant summarised in two tables some pertinent levels of the proposed development together with Melbourne Water's flood levels for the different recurring yearly intervals to better explain the potential impact of the various flood events upon this site. These tables are reproduced in these reasons:

Flockhart Street - proposed vehicle crossing (south entrance)

Flockhart Street (aligned with northern boundary, middle of road)

1. These tables indicate that:
   • A 1/10 year event will not present a flood risk to the occupants of the site as the flood level at 7.25m is below the levels of the vehicle crossings and the development. Flooding is likely to be limited to the northern end of Flockhart Street and Flockhart Reserve;
   • A 1/20 year event will not present a flood risk to the undercroft area on the site but will affect occupants of the site being able to traverse Flockhart Street whether by car or foot; and
   • An event less frequent than 1/20 years, including the 1/50 year and 1/100 year events, will present a flood risk to the site and its occupants.
2. In a 1/100 year event, Melbourne Water anticipates:
   • Flood depths will rise from 7.5 metres (flooding only the eastern portion of the site) to 8.6 metres (600mm flooding within Flockhart Street) within approximately 4.5 hours;
   • The site will be inundated for a period of approximately 3.5 days (assuming an average surface level of 8.6 metres);
   • The eastern portion of the site will remain inundated for several more days as floodwaters recede; and
   • Flockhart Street adjacent to the site will be inundated for a period of approximately 4 days (assuming an average level of 8.0 metres).
3. Some of the risks focussed upon during the hearing included the electrical functions of the building, a car floating from the undercroft area, and the ability of occupants of the building being able to leave (walk out) safely.

The development expectations of the site given the flood hazard risk

1. Melbourne Water submits the flood risk and hazard associated with the proposal is contrary to the purposes of the LSIO and objectives of relevant planning policies. Melbourne Water supported an earlier proposal in 2008[3] for this site to be developed with two warehouses. It considers that proposal had a lower level of risk because of the nature of the land use likely to employ fewer staff. In this case, Melbourne Water says the proposal will intensify the danger to life, health and safety of the users of this site.
2. The parties provided comprehensive submissions about relevant legislation, planning policies, planning controls, planning practice notes, guidelines and adopted documents related to flooding. I do not intend to repeat these here. Rather, I will just address the balancing exercise that is required and what that means for this site.

1. The LSIO purpose seeks (amongst others) to implement relevant planning policies, to identify land in an area affected by the 1/100 year flood event, and to ensure development maintains the free passage and temporary storage of flood waters, minimises flood damage and is compatible with the flood hazard. Interestingly, there is no mention in this purpose to minimising risk to life or property. However, the decision guidelines do identify such considerations as they include:

The susceptibility of the development to flooding and flood damage.

The potential flood risk to life, health and safety associated with the development.

Flood risk factors to consider include [amongst others]:

• The frequency, duration, extent, depth and velocity of flooding of the site and accessway.
• The flood warning time available.
• The danger to the occupants of the development, other floodplain residents and emergency personnel if the site or accessway is flooded.

1. I agree with the applicant's submission that the LSIO is not a planning control that is designed to prohibit or discourage any particular form of development. Rather, the control focuses upon minimising the flood damage and allowing development that is 'compatible' with the flood hazard.
2. There are three State level policies referred to in Melbourne Water's submission. One is clause 13's preface that 'planning should aim to avoid or minimise natural and human-made environmental hazards, environmental degradation and amenity conflicts'. The second is clause 13.01-1S that applies to natural hazards and climate change. It contains a strategy to 'site and design development to minimise risk to life, property, the natural environment and community infrastructure from natural hazards'. The last is clause 13.03-1S that applies to floodplain management. Its objective includes 'to assist the protection of life, property and community infrastructure from flood hazard'. Its strategies include to 'avoid intensifying the impact of flooding through inappropriately located use and development'. Melbourne Water places particular emphasis on this last strategy being 'best practice planning'.
3. Whilst these flooding related policies and strategies are all relevant considerations, they must be balanced with the other relevant planning policies in the scheme. The planning scheme states:

Planning and responsible authorities should endeavour to integrate the range of planning policies relevant to the issues to be determined and balance conflicting objectives in favour of net community benefit and sustainable development for the benefit of present and future generations. However, in bushfire affected areas, planning and responsible authorities must prioritise the protection of human life over all other policy considerations.[4]

1. This statement identifies the prioritisation of protecting human life over all other policy considerations in bushfire affected areas, but not in flooding affected areas. This accords with the fact that the LSIO does not prohibit or discourage development. This means the flooding considerations must be considered along with other relevant policies and any conflicting objectives balanced in favour of net community benefit and sustainable development.
2. Initially in this hearing, it was not obvious from the submissions or the evidence about the extent of support for the development of this site, particularly intensive development. For example, the Council officer report does not identify activity centre policy as being relevant, but rather it identifies urban design and business policies, including that the site is within a core industrial area under the Industrial and Commercial Framework Plan at clause 21.05-3.
3. Having received further submissions from the Council and the applicant as well as Mr Logan's evidence during the hearing, I have reached the conclusion that this site is part of the Victoria Street major activity centre. Clause 22.11 applies to all land in the Victoria Street East Precinct. It describes the precinct and includes as one of its key features:
   • The role of the precinct as part of the Victorian Street Major Activity Centre and the need for appropriate provision for the development and expansion of amenities and infrastructure of all kinds.
4. The land use, activity and development opportunities identified in clause 22.11 include:
   • To facilitate a mix of land uses appropriate for land forming part of the Victoria Street Major Activity Centre.
   • To maximise opportunities for new development on former industrial sites and other disused sites while protecting the amenity of the surrounding area and enhancing the landscape character of the River corridor.
   • To protect existing industrial activities in the Industrial 1 Zone adjacent to the Precinct, while supporting opportunities for a shift from industrial activity to business activity within the Precinct.
   • To create new local employment opportunities and protect existing ones, especially in the nearby CUB precinct

1. In regard to land uses, Clause 22.11 states:
   • Land between Grosvenor and Walmer Streets should be re-developed for mixed use, with opportunity for residential uses and office uses at upper levels.
2. As part of a Major Activity Centre, State policy on activity centres is also relevant, including the strategy at clause 11.03-1R to:

Support the development and growth of Metropolitan Activity Centres by ensuring they:

• Are able to accommodate significant growth for a broad range of land uses.

1. The applicant and Mr Logan also referred to the Victoria Street Structure Plan adopted by the Council in April 2010. It identifies the site is within the boundaries of the Victoria Street activity centre on page 3. It also identifies Flockhart Street in an area where 'substantial change' will be realised on page 6. Pages 6 and 8 talk about change to more intensive uses, including a mix of office and residential. Building heights of three to six storeys are encouraged on this site. Whilst this document is not referenced in planning scheme, it is a relevant document as it is a Council adopted strategy. The Council and the applicant agree it shows the latest/most recent strategic thinking of the Council. It essentially reinforces clause 22.11 that the site be developed as part of the Victoria Street Major Activity Centre.
2. Hence, there is clear policy direction for this site to be substantially developed for a mix of uses including office(s). In terms of balancing this policy with the policies about flood risk, the outcome to be achieved in terms of net community benefit and sustainable development should focus on managing the flood risk as opposed to sterilising or substantially limiting development on this site.
3. The need to balance conflicting policies of activity centre growth with flood risk arose in another recent Tribunal case involving 2-10 River Street, South Yarra.[5] That property was in an Activity Centre Zone, and the Tribunal acknowledged its approach was to presuppose that some form of development can or is likely to occur on the land. I agree that the same approach is appropriate in this case. However, in taking this approach, I also adopt the Tribunal's finding that:

... In our view a balance is required between the constraints arising from the flood prone nature of the land and these other strategic planning outcomes. That balance, however, need not and should not compromise the proper management of the risks to property and human life. ...[6]

The proposed development acceptably manages the flood risk

1. In regard to the proper management of the risk to property, Melbourne Water's grounds of objection raise no specific issues of concern regarding the design of the building. There is no suggestion that the layout or form of the building will hinder flood waters, including maintaining free passage of flood waters.
2. Early in the hearing, Melbourne Water expressed uncertainty about the intentions for the electricity services in the building. Specific examples given were the lift operation and the warning systems in the building. The Flood Emergency Response Plan (FERP) tabled and considered on the last hearing day makes it clear that the lift will automatically be directed to the first floor when the flood level reaches RL8.4m AHD at the monitoring point. The FERP says this is likely to occur about 3 hours after the first warning is given by the site's woking system. Also, the applicant points out the intention, as part of the building construction process, for essential electrical services to have its infrastructure constructed above the flood level (e.g. the lift equipment will be on the roof) or in a manner that assists to enable essential building services to operate during a flood. Mr Wiese gave evidence emergency systems will have backup battery powered systems on site. I am satisfied the detailed planning for the design of the building, including as part of the FERP, is acceptably addressing the management of the flood risk for the proposed building.

1. The ground levels of the undercroft area were a little unclear on the plans considered during the first two hearing days. Melbourne Water also identified a concern about the possibility of cars being left in the undercroft area and floating off the site in a flood event. There was discussion during the hearing about the unlikelihood of this occurring because of the warning times available enabling vehicles to be moved and the possibility of tow trucks being used to remove remaining vehicles (albeit it was acknowledged the headroom clearance may prevent tow trucks being able to get onto the site). This means there is always a possibility that a vehicle could be left on the site. Hence, it is appropriate to plan for this.
2. The Guidelines for Development in Flood Affected Areas[7] (the Guidelines) identify flood safety thresholds including that small cars can become buoyant at flood depths of 0.3 metres for still water situations. Assoc. Prof. Coombes acknowledged that lighter cars and modern air tight cars float. Hence, there was subsequent discussions during the hearing about the need for barriers to prevent cars floating off the site.
3. For the last hearing day, the applicant provided a further ground level plan with the ground levels clarified.

Extract of Option A Ground Floor plan (TPA2a dated 8/7/20)

1. In the lead up to the last hearing day, I asked the applicant to provide details of the barriers it considered were necessary so that they could be reviewed by Melbourne Water and the Council. The applicant provided two options - Option A and B. (Option A is shown above, on page 5 and on the following page)

A 3D perspective view from the southeast (from Option A Plans TPA12a dated 8/7/2020)

1. These images of Option A depict the location and design of 20-30mm thick powder coated steel bollards. The difference between Options A and B is that Option A contains an additional eastern return of bollards. The applicant submits these additional bollards are unnecessary due to the velocity of the flow of water (based on the earlier flow path shown on page 10). The Council prefers Option B because the extent of the structures (bollards) are minimised. Melbourne Water prefers Option A with more extensive bollards because of its uncertainty about the accuracy of the velocities.
2. Option A achieves a more conservative outcome involving a greater number of bollards. Given I have not considered the velocities at issue between the applicant and Melbourne Water, I have based my decision on the flow path and depths. I have decided that a greater number of bollards is an appropriate and acceptable safeguard that maintains the free passage of flood waters as sought by the LSIO purpose. Melbourne Water pointed out there is no supporting information to demonstrate how the bollards will withstand the velocity and pressure of flood waters/vehicles. This is not fatal, but a matter of detail that can be provided through a permit condition. I do not agree with the Council that less bollards is preferable from an aesthetic viewpoint. The perspective views (above and on page 5) illustrate the bollards are distinctive. I agree with the applicant's description of them as a 'sculptural fence'. The greater number of bollards do not have a detrimental impact on the appearance of the development in the Yarra River corridor. Rather, they provide a modern sculptural addition to the natural landscape character.

The proposed land uses acceptably manage the flood risk

1. The number of land uses resulting in the potential for over 500 persons on site, including visitors and possibly up to 13 separate tenancies (11 office tenancies plus the furniture showroom and café) is the key concern for Melbourne Water. I note the café is the only land use that will operate on the weekends.
2. The Guidelines identify that the threshold for the safety of children is a child being able to wade in depths of a maximum of 0.5 metres in still water situations. Melbourne Water points out this safety threshold does not apply to vulnerable community members such as infants, the elderly or people with a disability. The safety threshold for an adult in good conditions of up to around 0.5m/s velocity is 1.2 metres. Given the flood depths on this site and within Flockhart Street, Melbourne Water is also concerned about the safety risks being created for trained emergency service personnel.
3. Melbourne Water highlights that the flood depths on this site and within Flockhart Street are classified in 'the extreme category as they are 2-3 times that of the [safety threshold] for adults in good, trained condition, and 6-9 times the [safety threshold] for children'. Melbourne Water also points out that the safety risk is not just about the 1/100 year event (1% AEP flood event). Melbourne Water provides the example that the flood depths are expected to exceed the limiting depth for children during the 3% AEP flood event (three times more likely than the 1% AEP design event).
4. As the applicant highlighted earlier, the LSIO is not a planning control that is designed to prohibit or discourage any particular form of development. This includes that it does not prohibit or discourage any particular land uses or intensity of land uses. The LSIO focuses upon minimising the flood damage and allowing development that is 'compatible' with the flood hazard. Flood factors to consider include:
   • The flood warning time available.
   • The danger to the occupants of the development, other floodplain residents and emergency personnel if the site or accessway is flooded.
5. Both the applicant and Melbourne Water referred to the Tribunal decision of No. 8 River Street in support of their positions. Melbourne Water highlights that that proposal was for a residential hotel. Melbourne Water submits it was a single use with associated hotel management, so its flood risk management plan is easier to implement. A key component of the acceptability of the flood risk in that case was the fact that the applicant had prepared a flood risk management plan. The applicant in this case advises it intends to have a building manager and this could be included as a requirement in a permit condition. Mr Wiese gave evidence that a flood risk management plan would be prepared for this development and this could be included in a permit condition. The No. 8 River Street flood risk management plan was made available to everyone to peruse during the hearing. Mr Tweedie then described it as a comprehensive and impressive document that 'ticks all the boxes'. He advised this is what is intended to be achieved for this site.
6. At the end of the second hearing day and after heaving heard the applicant's case, I gave interim oral reasons that I required further information to assist me in determining the merits of the proposal. This further information included a draft flood risk management plan. I adjourned the hearing to enable the applicant to provide this. The hearing resumed after the further information had been circulated to the other parties for their consideration.
7. The key concern in this case is flood risk management, and it is somewhat surprising that a draft flood risk management plan had not already been prepared. If I had reached my final decision at that point in the hearing where I gave the oral interim reasons, I would have refused to grant a permit because of the lack of detail available about the management of the flood risk. In the circumstances of this case with the flooding potential well exceeding the safety thresholds outlined in the Guidelines, being clear about what the risk management plan will be is important. Given the considerations in the LSIO and the Guidelines, it is difficult to see how a permit could issue in the absence of the detail explaining how the risk will be managed. I do not know how a permit condition requiring such a plan to be prepared from scratch could do justice to the scope of work required to prepare such a plan. The content of the No. 8 River Street plan and the content of this draft Flood Emergency Response Plan (FERP) prepared by Storm Consulting are expansive. Given the complexity of the FERP, it is difficult to summarise it. Instead, I have included an extract of the Table of Contents in Appendix B in an effort to portray the document that, in draft form is over 30 pages, and, in final form, it will be even longer.
8. In light of the matters raised during the hearing about flood risk management, I note the FERP:
   • Outlines the roles and responsibilities of the owner, property manager, tenant, flood warden, staff and visitors;
   • Requires each tenant to provide contact information for two persons as well as nominating a flood warden and an alternative flood warden with their contact information;
   • Requires training of each tenant and flood warden as well as evacuation drills that occur at a minimum annually (or more frequently as required);
   • Requires a review of the FERP by a qualified and experienced person every five years with any recommendations for amendments;
   • Requires a report on the FERP operation annually from the property manager to the owner; and a review of the FERP by the property manager after all flooding events with the participation of each flood warden; and
   • Outlines advice of the warning time likely for a flood event, the depths of flood waters, the independent early warning system to be installed in the building with two audible warnings in the building when the flood waters in the adjacent river reach certain depths.
9. There was discussion during the hearing about the potential for people to shelter in place by staying in the building for some or all of the duration of the flood event. The FERP provides for this circumstance, but it is not what is planned for. The plan is to evacuate the building. This is the preferable approach.
10. I agree with Melbourne Water that there are different roles within the FERP to manage the risk. However, the overseeing responsibility on a daily basis effectively rests with the property manager. It is common for multi-level buildings and mixed use developments to have an on-site property manager. For this building, managing the flooding risk will be just one of the ongoing management responsibilities the property manager will have. The FERP is detailed about the responsibilities of each role, e.g. owner, property manager and flood wardens. Initially during the first two hearing days, I had some reservations about the café use given the often casual nature of staff and the possible unfamiliarity of the café patrons with the flooding risk. However, the FERP will require the tenant to have a flood warden and an alternative as well as two additional contacts for the tenant; and it maintains overseeing responsibility with the property manager. I am satisfied the warning system and the timing of this system together with the training and various contacts for each role provides acceptable management of the risk.
11. Melbourne Water quoted other Tribunal decisions[8] that have raised concern about relying on warning times and systems, as well as flood plans, including a 2005 decision relating to this site. Each case must be determined on its own merits. The content of this plan satisfies me that it can acceptably manage the flood risk. There is nothing in the Guidelines that contemplates this specific situation of the presupposed likelihood of substantial development and how to acceptably manage that risk. The Guidelines allow for alternative solutions to those outlined, and points out assessment is to be done on the merits, having regard for the flood risk.
12. Melbourne Water highlights No. 8 River Street's support for the flood risk management plan in that case included the fact that it was one set of management rules to be implemented by one responsible manager. This decision compares that proposal to a multi-dwelling development or an office use and development that it says would result in a disparate number of people on the land who cannot be easily or readily managed. This decision also suggests such a situation would be a burden to emergency services and possible put emergency personnel at risk.
13. One of the distinguishing facts about No. 8 River Street is that the flood event was derived from either river flooding or flash flooding. This site does not have to deal with flash flooding, which means the property manager of this site, utilising the FERP, has sufficient time to manage the flood risk and minimise the likelihood of needing or requiring the assistance of emergency personnel. Also, No. 8 River Street made the observations about a disparate number of people in general terms, e.g. without the benefit of the draft FERP that is before me. The detail of the FERP is comprehensive and addresses the potential for multiple tenants and visitors in the building when a flood event occurs. There remains one set of management rules in the FERP to be implemented by one responsible manager - the property manager. Hence, I am not persuaded the potential number of tenancies and persons on the site at any one time is a reason why this proposal should be refused.
14. The applicant suggested a condition be imposed requiring a building/property manager. Given the role of the property manager outlined in the FERP and the potential for up to 13 tenancies that will require management and training about the flood risk, a permit condition requiring this is appropriate in this case.
15. Melbourne Water seeks a permit condition requiring the owner of the site to enter into a Section 173 legal agreement with the Council and Melbourne Water. The purpose for this agreement is threefold:
    1. To inform future owners that the land is subject to inundation. I agree with the applicant this is unnecessary as it is achieved through a section 32 statement in a contract of sale.
    2. To identify the use of warning and protection structures (including the lift) and the ongoing maintenance requirements for the life of those structures. I agree with the applicant as this is unnecessary as this can be required through the FERP and the permit conditions.[9]
    3. To implement the FERP. I disagree with the applicant that this aspect of the agreement is not necessary. Whilst I agree the FERP will be enduring under the permit, there remains a benefit to alerting all future owners of any of these tenancies in this building of their obligations to implement the FERP. This situation reminds me of permit conditions associated with contaminated land where a section 173 agreement is required by a permit condition to inform future owners of the necessity for ongoing maintenance or management in accordance with a statement of environmental audit.[10] I agree with Melbourne Water that the risk of flooding is not common to all buildings in Melbourne. I also agree that it is appropriate for there to be confidence that the management obligations contained in the FERP will be consistently applied, especially in circumstances when the constructed building with its tenancies is likely to be in existence for decades and there could be multiple owners and tenants during the whole life of the building. A Section 173 agreement will assist to achieve this outcome of confidence in the management obligations being consistently applied.

1. For these reasons, the decision of the Responsible Authority is set aside. A permit is issued subject to conditions.

In accordance with the endorsed plans, the development of a five storey mixed use building with the following planning permissions:

• Use of the land for the purpose of an office(s), a restricted retail premise and a food and drink premise in the Industrial 1 Zone;
• Construction of a building and construction or carrying out of works in the Industrial 1 Zone;
• Construction of a building and construction or carrying out of works including a fence in Land Subject to Inundation Overlay;
• Construction of a building and construction or carrying out of works in Design and Development Overlay Schedule 1-f;
• Construction of a building of 6 metres or greater in height above natural ground level and construction or carrying out of works in Significant Landscape Overlay Schedule 1; and
• Reduction of the standard car parking requirement from 166 to 62 car spaces.

1. Before the use and development commences, amended plans to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the plans will be endorsed and will then form part of this permit. The plans must be drawn to scale with dimensions, and three copies must be provided. The plans must be generally in accordance with the decision plans, prepared by Petridis Architects - TPA02 & TPA03 (dated 9 April 2019) TPA04-TPA07 inclusive (dated 13 August 2019) & TPA08-TPA11 inclusive (dated 9 April 2019) but modified to show;

(a) The removal of all notations regarding existing fencing and gates from the proposed ground floor plan;

(b) The incorporation of the ground floor floor levels and bollards on the proposed ground floor plan, the proposed elevations and sections as well as providing artists impressions of the bollards in accordance with the plans prepared by Petridis Architects dated 8 July 2020 numbered TPA02a, TPA09a, TPA10a, TPA11a, TPA12a - All Referenced 'For VCAT - Option A';

(c) The following dimensions on all relevant plans/elevations/sections:

1. Both vehicle crossings;

2. The southern entrance and aisle to meet the minimum dimensions of Clause 52.06-9;

3. The loading bay, along with a swept path diagram using an 8.8m long truck or equivalent vehicle, demonstrating ingress and egress movements into and out of this space, or modifications required to achieve this;

4. Headroom clearance to meet Design Standards of Clause 52.06-9;

5. The Accessible Parking space, with this space to comply with the Australian/New Zealand Standard AS/NZS 2890.6:2009;

6. Details of any boom gates or barriers or controlled entry to the car parking areas;

(d) Sight triangles at both entrances to comply with Design Standard 1 - Accessways of Clause 52.06-9. If adequate sight lines cannot be provided, convex mirrors are to be provided;

(e) The tandem parking spaces increased by 500mm in between spaces to meet Design Standard 2 of Clause 52.06-9;

(f) The proposed northern elevation (TPA10) amended to accurately depict the correct setback for the mandatory 18m section of building;

(g) The number of employee bicycle spaces shown on the plans to be contained within a maximum of 2 separate secure facilities, as per the requirements of AS2890.3. A minimum of 20% of these spaces must be provided as horizontal, at-grade spaces;

(h) The proposed 11 bicycle spaces located within the southern entry walkway to be designated as 'visitor bicycle spaces', with all of these provided as horizontal, at-grade spaces;

(i) Notations confirming that a 'minimum 40A single phase electrical sub-circuit' will be wired to the ground level for the future provision of Electric Vehicle charging;

(j) The Accessible car spaces relocated to be as close to the lift as possible;

(k) The objects shown in car space 22 and between car space 16 and 17 to be deleted, or notations added indicating the purpose of the objects;

(l) The allocation of the car parking as follows - 50 car spaces to the office land use, 10 spaces to the restricted retail land use, and two car spaces to the food and drink premises land use.

(m) A schedule of materials, finishes and colours including details of tinted or reflectivity of glass.

(n) Any changes required by the amended Sustainable Management Plan at Condition 3;

(o) Any changes required by the Green Travel Plan at Condition 5;

(p) Any changes required by the amended Waste Management Plan at Condition 7;

(q) Any changes required by the amended Landscape Plan at Condition 9.

(r) Any changes required as a result of the Flood Emergency Response Plan approved under condition 37.

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

1. Before the development commences, an amended Sustainable Management Plan to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the amended Sustainable Management Plan will be endorsed and will form part of this permit. The amended Sustainable Management Plan must be generally in accordance with the Sustainable Management Plan prepared by Low Impact Development Consulting and dated 26 April 2019, but modified to include or show:

(a) Details of the hot water system type and efficiency and whether any solar thermal boost is provided, with best practice to be achieved;

(b) Provision for electrical bicycle charging;

(c) Additional planters/vegetation on the roof terrace;

(d) The removal of all 'non-committal language'.

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

1. Before the development commences, a Green Travel Plan to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the Green Travel plan will be endorsed and will form part of this permit. The Green Travel Plan must include, but not be limited to, the following:

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

(b) Details of bicycle parking.

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

(d) The types of lockers proposed within the change room facilities, with at least 50 per cent of lockers providing hanging storage space.

(e) Security arrangements to access the employee bicycle storage spaces.

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

(g) Provisions for the green travel plan to be updated not less than every five years.

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

1. Before the development commences, an amended Waste Management Plan to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the amended Waste Management Plan will be endorsed and will form part of this permit. The amended Waste Management Plan must be generally in accordance with the Waste Management Plan prepared by MGA Traffic and dated 29 May 2019, but modified to include or show;

(a) Details of how e-waste will be managed;

(b) The management of food waste diversion;

(c) Details of how any revisions will be managed;

(d) The location of the hard waste storage area within the bin storage area;

(e) Details of bin washing procedures.

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

1. Before the development commences, an amended Landscape Management Plan to the satisfaction of the Responsible Authority and Melbourne Water must be submitted to and approved by the Responsible Authority and Melbourne Water. When approved, the amended Landscape Management Plan will be endorsed and will form part of this permit. The amended Landscape Management Plan must be generally in accordance with the Landscape Management Plan prepared by Aspect Studios and dated 15 April 2019, but modified to include or show:

(a) The bollards required by condition 1(b);

(b) The surface treatment of the section of exposed car parking (not within the undercroft). This area is to include surface treatment to soften the appearance of the parking area (bonded gravel etc). White line-marked bitumen surfaced parking is not to be provided in this area;

(c) A specification of works to be undertaken prior to planting;

(d) A plant schedule, including the botanical name, common name, mature height, and spread, installation size, planting spacing's, locations and quantities of each plant. The plant species must reflect the landscape character as outlined in the Significant Landscape Overlay (Schedule 1) and the Ecological Vegetation Class for this location - EVC 56 Gippsland plain bioregion - Floodplain Riparian Woodland;

(e) A legend containing key features and materials;

(f) Proposed levels including top of walls;

(g) Details of any planter beds including height, width and materials;

(h) Information on irrigation and drainage systems;

(i) Notes on the maintenance schedule, tasks and maintenance period;

(j) Notes on irrigation if included;

(k) The following details for planter and raingarden design;

1. Planter material and dimensions.

2. Mulch layer.

3. Growing media

4. Filter media

5. Irrigation method / stormwater inlet

6. Drainage system

7. Root barrier / water proofing layer

(l) The location and site area percentage of all existing and proposed hard or impermeable surfaces;

(m) The inclusion of local indigenous shrubs and grasses in the rock revetment;

(n) Clarification as to whether any existing trees within five metres of the site boundaries will be removed or pruned. If so, the following details will be required;

1. A plan showing the existing trees and those to be removed or pruned;
2. A schedule of the trees to be removed;
3. An impact statement in relation to the development and the impact on the existing vegetation;
4. The provision of native vegetation offsets.

1. Before the building is occupied, or by such later date as approved in writing by the Responsible Authority, the landscaping works shown on the endorsed Landscape Plan must be carried out and completed to the satisfaction of the Responsible Authority. The landscaping shown on the endorsed Landscape Plan must be maintained by:

(a) implementing and complying with the provisions, recommendations and requirements of the endorsed Landscape Plan;

(b) not using the areas set aside on the endorsed Landscape Plan for landscaping for any other purpose; and

(c) replacing any dead, diseased, dying or damaged plants,

1. Before the development commences, a Tree Management Plan to the satisfaction of the Responsible Authority must be prepared by a suitably qualified Arborist and must be submitted to and approved by the Responsible Authority. When approved the Tree Management Plan will be endorsed and will form part of this permit. The Tree Management Plan must make recommendations for:

(a) the protection of any trees within 5m of the northern boundary:

1. pre-construction;

2. during construction; and

3. post construction

(b) the provision of any barriers;

(c) any pruning necessary; and

(d) watering and maintenance regimes,

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

1. Except with the prior written consent of the responsible authority, no more than 350 staff associated with the office use are permitted on the land at any one time.
2. Except with the prior written consent of the responsible authority, no more than 150 patrons and 8 staff associated with the food and drink premises are permitted on the land at any one time.
3. Except with the prior written consent of the responsible authority, no more than 10 staff associated with the restricted retail premise are permitted on the land at any one time.
4. Except with the prior written consent of the Responsible Authority, the uses authorised by this permit may only operate between the hours of;

(a) Office - 8am to 5pm - Monday to Friday;

(b) Food and drink premise - 7am to 6pm - Monday to Friday and 7am to 3pm - Saturday and Sunday;

(c) Restricted retail premise - 9am to 5.30pm - Monday to Friday.

1. The provision of music and entertainment within the food and drink premise must be at a background noise level.
2. The use and development must comply at all times with the State Environment Protection Policy - Control of Noise from Commerce, Industry and Trade (SEPP N-1).
3. The use must comply at all times with the State Environment Protection Policy - Control of Music Noise from Public Premises (SEPP N-2).
4. The amenity of the area must not be unreasonably detrimentally affected by the use or development, including through:

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

(b) the appearance of any buildings, works or materials;

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

(d) the presence of vermin.

1. The collection of waste from the site must be by private collection, unless with the prior written consent of the Responsible Authority.

1. Before the building is occupied, or by such later date as approved in writing by the Responsible Authority, external lighting capable of illuminating pedestrian entrances must be provided within the property boundary. Lighting must be:

(a) located;

(b) directed;

(c) shielded; and

(d) of limited intensity,

1. Finished floor levels shown on the endorsed plans must not be altered or modified without the prior written consent of the Responsible Authority.
2. All buildings and works must be maintained in good order and appearance to the satisfaction of the Responsible Authority.
3. Before the building is occupied, or by such later date as approved in writing by the Responsible Authority, the area set aside on the endorsed plans for the car parking spaces, access lanes, driveways and associated works must be:

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

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

(c) treated with an all-weather seal or some other durable surface; and

(d) line-marked or provided with some adequate means of showing the car parking spaces;

1. Before the building is occupied, or by such later date as approved in writing by the Responsible Authority, the kerb and channel along the property's Flockhart Street frontage must be reconstructed:

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

(b) to the satisfaction of the Responsible Authority.

1. Before the building is occupied, or by such later date as approved in writing by the Responsible Authority, the footpath frontage to Flockhart Street must be profiled and re-sheeted:

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

(b) to the satisfaction of the Responsible Authority.

1. Before the building is occupied, or by such later date as approved in writing by the Responsible Authority, any damage to Council infrastructure resulting from the development must be reinstated:

(a) at the permit holder's cost,

(b) to the satisfaction of the Responsible Authority.

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

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

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

(c) to the satisfaction of the Responsible Authority.

1. Except with the prior written consent of the Responsible Authority, Council assets must not be altered in any way.
2. All pipes, fixtures, fittings and vents servicing any building on the land must be concealed in service ducts or otherwise suitably treated to the satisfaction of the Responsible Authority.
3. Prior to the completion of the development, subject to the relevant authority's consent, the relocation of any service poles, street line markings, car parking sensors, service structures or service pits necessary to facilitate the development must be undertaken:

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

(b) to the satisfaction of the Responsible Authority.

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

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

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

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

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

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

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

(g) site security;

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

1. contaminated soil;

2. materials and waste;

3. dust;

4. stormwater contamination from run-off and wash-waters;

5. sediment from the land on roads;

6. washing of concrete trucks and other vehicles and machinery; and

7. spillage from refuelling cranes and other vehicles and machinery;

(i) storage of materials outside of the riparian zone on the site;

(j) the construction program;

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

(l) parking facilities for construction workers;

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

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

(o) 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;

(p) 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;

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

In preparing the Noise and Vibration Management Plan, consideration must be given to:

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

(a) any stormwater discharged into the stormwater drainage system must be in compliance with Environment Protection Authority 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 land enters the stormwater drainage system;

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

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

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

1. The provisions, recommendations and requirements of the endorsed Construction Management Plan must be implemented and complied with to the satisfaction of the Responsible Authority.
2. Except with the prior written consent of the Responsible Authority, demolition or construction works must not be carried out:

(a) Monday-Friday (excluding public holidays) before 7 am or after 6 pm;

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

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

1. Concurrent with the endorsement of plans pursuant to condition 1, a Flood Emergency Response Plan (FERP) to the satisfaction of Melbourne Water and the Responsible Authority must be submitted to and approved by Melbourne Water and the Responsible Authority. When approved, the FERP will be endorsed and will then form part of this permit.

The FERP must be prepared by a suitably qualified person and must be generally in accordance with the draft FERP prepared by Storm Consulting dated 8 July 2020 but modified to include:

(a) A definition of 'operational hours' in section 1.3 that is the hours of operation contained in this permit.

(b) The responsibility of the Flood Warden in Table 1-1 (on page 6) modified to 'maintain currency of FERP for tenancy' and the associated key tasks to include:

1. Reporting changes to Property Manager to give examples such as identifying staff with special needs (e.g. a disability), changes to the flood tenancy or staff numbers that might be relevant to the flood risk.

2. Participating in FERP training on an annual basis as a minimum.

(c) Table 2-2 first row description of relevant site levels amended to state that flood water will begin inundating Flockhart Street to the north of the Site .... (etc).

(d) The 'relevant site levels' text should be added to the 1% Flood AEP row, which will be similar to the text for the 2% Flood AEP.

(e) In Table 3-1:

1. The third row management measure should cross-reference to the page where the 'defined trigger' is identified.

2. Review whether to fourth row management measure of evacuating staff and visitors at RL8.0m AHD to RL7.52m (as per page 16 second warning and page 22 Table 5-1) if there is no specific warning at RL8.0m.

3. Provide examples of 'appropriate emergency provisions' in fourth row redundancy column, e.g. water, types of foods, medical kit, etc and state where it will be housed.

4. Change eighth row management measure column to refer to 'first floor level' rather than 'design floor level'.

5. Review ninth row management measure column about back up power necessary if sheltering in place.

(f) Section 3.2.2 paragraph 3, second sentence to refer to 'Flood Wardens' rather than floor wardens.

(g) Change the note at the end of section 5.1 to be a dot point at the end of the dot points already included in that section.

(h) In section 5.3.1:

1. Change the last dot point under the heading Vehicles to state:- Property Manager will confirm that all vehicles have been removed or what vehicles remain and record their details on their final inspection before closing the site.

1. Each formal five yearly review of the FERP including any recommendations for amendments to the FERP (as required in section 1.5.2 of the FERP) and an updated FERP (if appropriate) must be submitted to Melbourne Water and the Responsible Authority. If there is an updated FERP, it must be approved by Melbourne Water and the Responsible Authority. When approved, each updated FERP will be endorsed and will then form part of this permit.

1. Before any use commences on the site, the flood warning system outlined in the endorsed FERP must be installed and operating to the satisfaction of the Responsible Authority.

1. Before the development starts, detailed engineering plans and/or any associated documentation about the bollard installation must be submitted to and approved by Melbourne Water and the Responsible Authority. This material must demonstrate that the bollards will be capable of preventing the movement of vehicles into the waterway in a 1% AEP flood event.

Maintenance of flood warning system and bollards

1. The flood warning system and bollards must be maintained and if any are damaged or removed, they must be replaced immediately to the satisfaction of the Responsible Authority.

1. Before any use commences, a property manager must be appointed to implement the FERP as required by the endorsed FERP or any updated endorsed FERP to the satisfaction of the Responsible Authority.

1. The floor levels of the building including the offices and food and drink premises must be constructed with finished floor levels set no lower than 11.85 metres to Australian Height Datum (AHD), which is 600mm above the applicable flood level of 11.25 metres to AHD.
2. Prior to the issue of an Occupancy Permit, a certified survey plan, showing finished floor levels of the first floor offices and food and drink premises (as constructed) relative to AHD, must be submitted to Melbourne Water to demonstrate that the floor levels have been constructed in accordance with Melbourne Water's requirements.
3. The open space and landscaped areas within the property must be maintained at natural surface level or to the satisfaction of Melbourne Water to allow for the passage of floodwaters.
4. The ground floor parking must be maintained unenclosed for the life of the structure to allow for the passage of floodwaters to the satisfaction of Melbourne Water.
5. Any new fence must be a minimum 50% open style of construction to allow for the passage of floodwaters.
6. The electrical and mechanical components of the lift must be designed to withstand inundation from floodwaters and the design must ensure that the lift remains at first floor level or above when the site is inundated from floodwaters.
7. Prior to the completion of the development, the owner of the Land must enter into an agreement pursuant to Section 173 of the Planning and Environment Act 1987 with the Responsible Authority. All costs associated with the setting up of the agreement must be borne by the owner/permit holder. The agreement must be registered on the title of the Land and must provide, to the satisfaction of the Responsible Authority for:

(a) The owner(s) of the land to implement the Flood Emergency Response Plan (or any updated version) endorsed under this permit, which has been approved by the Responsible Authority and Melbourne Water Corporation.

(b) The owner(s) of the land to maintain all flood related measures identified in the FERP and this permit in good working condition.

1. Any works intended to occur within the riparian corridor of the Yarra River (20 metres from eastern property boundary), including the installation of flood warning systems or disturbances to the bed and banks of the waterway, must be reviewed and approved by Melbourne Water before being undertaken.
2. Prior to the commencement of works, a separate application direct to Melbourne Water must be made for the approval of any new or modified stormwater connection to Melbourne Water's drains or watercourses.

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

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

(c) the uses are not commenced within five years of the date of this permit.

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

APPENDIX B - EXTRACT OF TABLE OF CONTENTS IN DRAFT FLOOD EMERGENCY RESPONSE PLAN

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

[2] Figure 1 of Water Technology's flood report dated 2007. Mr Wiese's expert statement contains the Flood Management Plan that explains at section 1.3.1 an expert report was prepared by Water Technology for a proposed warehouse development on the site on 15 November 2004; and a supplementary report on flooding issues at the site was prepared by Water Technology on 10 August 2007.

[3] Permit PL06/0431 issued on 7 January 2008

[4] Extract from clause 71.02-3 of the planning scheme

[5] No. 8 River Street Pty Ltd v Stonnington CC (Corrected) [2019] VCAT 2058 (No. 8 River Street)

[6] Extract from paragraph 29 of No. 8 River Street

[7] Guidelines for Development in Flood Affected Areas. February 2019

[8] E.g. Whelan v Maribyrnong CC [2009] VCAT 2681; M & H Curren Investments Pty Ltd v Mornington Peninsula SC [2012] VCAT 815; and Core Mentis v Yarra CC [2005] VCAT 2538

[9] The applicant relied on Benedetti v Moonee Valley City Council [2005] VSC 434 that a permit condition has ongoing effect whilst the benefit of the permit continues to be enjoyed.

[10] For example, such a condition would be worded along the lines of:

If any term or condition of the Statement requires any ongoing maintenance or monitoring, the owner of the land (or another person in anticipation of becoming the owner of the land) must enter into an agreement with the Responsible Authority pursuant to section 173 of the Planning and Environment Act 1987 (Agreement). The Agreement must:

(i) provide for the undertaking of the ongoing maintenance and monitoring as required by the Statement; and

(ii) be executed before the sensitive use for which the land is being developed commences.