BEFORE: Jeanette G. Rickards, Presiding Member and

DATES OF HEARING: Monday 6, Tuesday 7 and Wednesday

MEDIUM NEUTRAL CITATION: [2002] VCAT 651

It is ordered that the decision of the Responsible Authority is varied, and a permit is granted for demolition of existing buildings and use and development of the land at 241 - 257 Toorak Road and 625 Chapel Street South Yarra for dwellings, serviced apartments, shops and food and drink premises, basement car parking, and the sale of consumption of liquor in accordance with the endorsed plans and a reduction in the number of car parking spaces required, subject to the following conditions:

1. Prior to the endorsement of any plan under this permit and prior to the commencement of any buildings and works, whatsoever, the owner of the land must make a request to the Responsible Authority for the formal closure of Almeida Crescent and the Responsible Authority must process and consider such request. In the event that the Responsible Authority approves the formal closure of the road the plan submitted for endorsement to the Responsible Authority under this permit must provide for the closure of Almeida Crescent generally in accordance with the "Option 2" submitted to the Responsible Authority on 23 November, 2001 or such other plan which may be supported by the Responsible Authority as part of the road closure process. In the event that the road closure is not approved by the Responsible Authority the plan submitted to the Responsible Authority for endorsement under this permit must provide for an entry arrangement and traffic management works which are generally in accordance with the "Option 1" submitted to Council on 23 November, 2001.

2. Before the use and development starts, amended plans to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the plans will be endorsed and will then form part of the permit. The plans must be drawn to scale with dimensions and three copies provided generally in accordance with the plans submitted but modified to show:

a) Entry arrangements and traffic management works in accordance with Condition 1;

b) Alterations to the serviced apartment lift design to allow access from basement 4 to levels 1, 2 and 3 of the retail complex;

c) The north-east corner of carpark basement 4, the north-east and south-east corners of carpark basements 2 and 3 and the north-east corner of carpark basement 1 to the public carpark modified to ensure access to the parking spaces in these areas are not compromised to the satisfaction of the Responsible Authority (such alterations must not result in a reduction in the number of carspaces);

d) The south-east and south-west corners of carpark basements 1, 2 and 3 of the private carpark to be modified to ensure access to the parking spaces in these areas are not compromised to the satisfaction of the Responsible Authority (such alterations must not result in a reduction in the number of carspaces);

e) Each basement carpark level to have a minimum ceiling height of 2.2m (clear vertical space) to the satisfaction of the Responsible Authority;

f) The disabled parking bay in carpark basement 1, opposite the exit ramp, to be relocated to a more appropriate location that is suitable for disabled access to the satisfaction of the Responsible Authority;

g) A minimum of three (3) disabled carspaces provided in the public basement carpark to the satisfaction of the Responsible Authority;

h) Details provided of all street facades, materials and finishes to the satisfaction of the Responsible Authority;

i) Clarification that (unless with the consent of the Responsible Authority) the allocation of carparking spaces within the basement carpark comprises a minimum of 344 private spaces and 322 public spaces;

j) The entrances to the retail component from Chapel Street and Toorak Road widened to improve visibility and access generally in accordance with the concept plan submitted to Council on 8 November, 2001 and to the satisfaction of the Responsible Authority;

k) The provision of direct access from the basement carpark to the ground level retail component;

l) An ability for all ground level retail spaces which adjoin Toorak Road or Chapel Street to front and address these streets in an interactive way to the satisfaction of the Responsible Authority;

m) Floor levels for the ground level retail spaces which adjoin Toorak Road or Chapel Street which generally match the street levels to the satisfaction of the Responsible Authority;

n) Alterations to the design of the retail space to provide a grander sense of entry to the ground level retail area to the satisfaction of the Responsible Authority;

o) Entry arrangements generally in accordance with the plan submitted to the Responsible Authority dated 8 November, 2001; and

p) The internal mall/atrium arrangements generally in accordance with the plan submitted to the Responsible Authority dated 8 November, 2001 but modified to provide better natural light penetration, visibility and access throughout the mall/atrium (eg. removal of the internal obstructions such as the lift, walls, stairs, reduction in the width of the balconies etc.).

q) Alterations to the Chapel Street and Toorak Road facades to address the recommendations of the Mel Consultants report dated October, 2001, including:

i) the setback of Level 1 of the building to the Toorak Road kerb line increased (4.4m to the facade and 3.4m to the columns) generally in accordance with the concept plans submitted to the Responsible Authority on 8 November, 2001 unless an alternative arrangement is approved to the satisfaction of the Responsible Authority;

ii) the setback of Levels 2 and 3 of the building to Toorak Road increased to align with the setback of the lower level generally in accordance with the concept plans submitted to the Responsible Authority on 8 November, 2001 unless an alternative arrangement is approved to the satisfaction of the Responsible Authority;

iii) a footpath width of 2.8m (i.e. existing footpath width) on Chapel Street adjacent to the frontage of the site;

iv) the glass line setback 800mm from the Chapel Street frontage generally in accordance with the plan submitted to the Responsible Authority on 8 November, 2001;

v) the retail entries to Chapel Street widened and re-designed generally in accordance with the concept plans submitted to the Responsible Authority on 8 November, 2001;

vi) the provision of canopies on the facades of the development over the Chapel Street and Toorak Road footpaths;

vii) the building line at the corner of Chapel Street and Toorak Road cut back and provided with wind breaks at the main entrance to Chapel Street/Toorak Road generally in accordance with the concept plans submitted to the Responsible Authority on 8 November, 2001 (the splay at this corner of the building must not project beyond the line of the existing building); and

viii) the provision of vertical facade fins along the Chapel Street and Toorak Road facades.

r) The deletion of all balconies, terraces and roof gardens which project outside the title boundaries of the site except for the architectural feature at the Toorak Road/Chapel Street intersection;

s) The terrace at level 6 positioned adjacent to the Toorak Road/Chapel Street intersection reduced in size to produce a 4.0 metre minimum setback from the edge of the lower levels of the building;

t) Deletion of reference to all advertising signs;

u) Details provided of the areas for the storage and collection of garbage and other solid wastes within the curtilage of the site to the satisfaction of the Responsible Authority;

v) Details provided of the footpath paving, street trees and street furniture consistent with that on the south side of Toorak Road to the satisfaction of the Responsible Authority; and

w) Plan notations indicating any reuse of existing building materials, where reasonable and appropriate, as identified pursuant to the Conservation Analysis approved pursuant to condition 3 of the permit.

3. Prior to the endorsement of the plans and the commencement of any buildings and works, a Conservation Analysis must be submitted to and approved by the Responsible Authority. When approved it shall be endorsed to form part of the permit. The Conservation Analysis must:

a) Be prepared by a qualified Heritage Architect;

b) Include an historical account of the origin and previous uses and development of each building on the site;

c) Identify any existing building materials or components of specific cultural significance;

d) Identify the external and internal elements of the buildings that should be recorded and documented;

e) Propose the text and illustrations for a display of the history of the site to be incorporated into the development;

f) Include plans of all existing buildings sufficient to indicate the location of all materials and components identified as being of specific cultural significance pursuant to condition 3 (c); and

g) Include a photographic record of all existing buildings.

4. The Conservation Analysis must be allocated an ISBN number, bound to the satisfaction of the Responsible Authority, and ten copies supplied to the Responsible Authority and two lodged as legal deposit copies with the State Library of Victoria and the National Library of Australia.

5. Prior to the commencement of any site works whatsoever, detailed engineering construction plans (based upon a detailed traffic analysis) must be submitted to and approved by the Responsible Authority. The plan must provide comprehensive details, including:

a) Entry arrangements and traffic management works in accordance with Condition No. 1;

b) Traffic management works in Almeida Crescent and Daly Street which provide for appropriate, safe and convenient access to and from the site to the satisfaction of the Responsible Authority;

c) Pavement details for the traffic management works which are consistent with materials in the area and satisfactory to the Responsible Authority;

d) All necessary drainage for the proposed works;

f) Any alterations to the traffic signals at the Daly Street/Chapel Street intersection (if necessary).

6. Prior to the commencement or occupation of the permitted uses, the engineering works required by Condition 5 and associated landscaping, must be installed and constructed in accordance with the approved traffic management works plan under the supervision of the Responsible Authority and to the satisfaction of the Responsible Authority. The works must be at the full cost of the developer. A charge of 2.5% (plus GST) of the cost of the works will apply for supervision by the Responsible Authority.

7. Prior to the commencement of any works whatsoever, detailed engineering construction plans (footpath construction plans) must be submitted to and approved by the Responsible Authority. The plan must provide comprehensive details, including:

a) Pavement details for footpaths on Toorak Road, Chapel Street and Almeida Crescent which are consistent with materials in the area and satisfactory to the Responsible Authority;

b) Levels and gradients for the footpaths to the satisfaction of the Responsible Authority;

c) All proposed drainage works for the footpaths;

d) The provision of any necessary service conduits and services beneath the footpaths; and

e) Street furniture to the satisfaction of the Responsible Authority.

8. Prior to the commencement of the permitted uses the footpath works must be constructed in accordance with the approved footpath construction plan under the supervision of the Responsible Authority and to the satisfaction of the Responsible Authority. The works must be at the full cost of the developer. A charge of 2.5% (plus GST) of the cost of the works will apply for supervision by the Responsible Authority.

9. Prior to the commencement of any works whatsoever;

a) Evidence satisfactory to the Responsible Authority must be provided to the Responsible Authority that no services and/or easements encumber and traverse the land;

b) Evidence satisfactory to the Responsible Authority must be provided to demonstrate that all easements and associated services which encumber and traverse the land have been removed and/or deleted with the agreement of any benefiting property owners; or

c) Detailed engineering construction plans (services plan) must be submitted to and approved by the Responsible Authority providing for the relocation of any services which encumber and traverse the land (such plans must be accompanied by agreements from the owners of any properties or entities which benefit from the services to the satisfaction of the Responsible Authority).

10. Prior to the removal of any existing services which traverse and/or encumber the land the replacement services must be constructed in accordance with the approved services plan and to the satisfaction of the Responsible Authority.

11. Prior to the endorsement of the plan required by Condition 2 of this permit a report from a suitably qualified person(s) must be submitted to the Responsible Authority to demonstrate to the satisfaction of the Responsible Authority, that the building satisfies the recommendations of the Mel Consultants report dated October, 2001.

12. Prior to the commencement of the permitted works a Disabled Access Management Plan must be submitted to and approved by the Responsible Authority. Such plan must be prepared by a suitably qualified person and must satisfy the relevant Australian Standards. The plan must include details on, but not be limited to:

f) Sanitary facilities for people with disabilities; and

13. Prior to the commencement of the use of the land for a food and drink premises, plans and schedules are to be submitted to the satisfaction of the responsible authority indicating the following:

14. A plan showing the location of the tenancies within the building that are to be used for the purpose of a food and drink premises and the maximum seating capacity to be provided within each premises.

a) The number of food and drink premises located at ground level fronting Toorak Road or Chapel Street shall not exceed 50% of the property frontage to Toorak Road and Chapel Street.

b) Not more than 550 seats associated with the food and drink premises shall be provided on the subject land.

When approved, the plans and schedules shall be endorsed to form part of the permit. The location of the food and drink premises or the number of seats provided within each tenancy shall not be altered without the written permission of the Responsible Authority.

14. All food and drink premises approved by this permit, shall only operate between the hours of 6.00am and 1.00am the following day, except where authorised by a separate planning permit.

15. This permit shall not come into effect until the owner of the land enters into an agreement with the Responsible Authority pursuant to section 173 of the Planning & Environment Act 1987 in order to ameliorate any detrimental effect on television reception as a result of 'shadow' cast by the development approved by this permit. The agreement shall provide for the following:

a) The extent of shadow on television reception likely to be cast by the approved development shall be agreed upon by two qualified communication engineers, one of whom shall be nominated by the owners and the other of whom shall be nominated by the responsible authority. The total cost of both consultants must be borne by the developer and/or the owner of the site. Failing an agreement on the extent of the likely shadow, it shall be determined by and to the satisfaction of the responsible authority.

b) Prior to the commencement of the development hereby permitted, the two nominees shall offer in writing free of charge to the occupier of each of the properties, and at the total cost of the developer and/or owner of the site, in the said shadow:

i) to measure and record the electrical field intensity of television reception

ii) to record the television picture quality from the existing antenna of each property. If in the opinion of the responsible authority that the number of measurements required is excessive and unnecessary, a representative sample agreed to by the owner and the responsible authority shall be undertaken.

(Such measurement and recording is hereinafter called "the before position").

c) Within 3 months of the Certificate of Occupancy being issued with respect to the building hereby approved, the two nominees shall offer in writing free of charge to the occupiers of each of the properties in the said shadow who accepted the offer referred to in (b) above to measure and record the electrical field intensity of television reception the television picture quality in each property. If a representative sample was taken pursuant to (b) above, then the offer shall be made to all those in the agreed sample.

(Such measurement and recording is hereinafter called "the after position").

d) If in the opinion of the two nominees there has been a deterioration in the electrical field intensity of television reception the television picture quality from the antenna in the after position when compared to the before position that can be reasonably attributed to the construction of the approved development, the owner of the land must undertake to provide satisfactory television reception to all properties within the said shadow.

e) Any remedial works required by the owner in accordance with (d) shall be undertaken:

ii) by a qualified technician(s) appointed by the two nominees.

The nature and type of remedial works is to be at the discretion of the owner based upon the recommendations of the two nominees and in consultation with the Australian Broadcasting Authority and TX Australia.

f) The requirement for the owner to undertake remedial works to improve television reception within the said shadow shall also be considered in the context of emerging technology including the conversion to a digital television standard. If in the opinion of the responsible authority that the emergence of new technology will within a reasonable amount of time from the completion of the building address the deterioration of television reception, then the responsible authority may determine in writing not to require remedial works under point (d) above.

g) The agreement is to be registered on the Certificate of Titles to the subject land and shall run with the land.

h) The owner is to pay all legal costs associated with the preparation and registration of the agreement.

16. Before the use starts, areas set aside for parked vehicles and access lanes as shown on the endorsed plans must be:

a) Constructed to the satisfaction of the Responsible Authority.

b) Properly formed to such levels that they can be used in accordance with the plans.

c) Surfaced to the satisfaction of the Responsible Authority.

d) Drained and maintained to the satisfaction of the Responsible Authority.

e) Line-marked to indicate each car space and all access lanes to the satisfaction of the Responsible Authority.

f) All driveways and access ramps to carparking spaces to comply with the relevant provisions of the Australian Standard AS2890.1.

Parking areas and access lanes must be kept available for these purposes at all times.

17. No fewer than 666 carspaces must be provided on the land for the use and development allowed by this permit and unless with the consent of the Responsible Authority must include 344 carspaces for the private use of occupants to the residential and serviced apartments in the private carpark and 322 for general public use in the public carpark (a minimum of three (3) disabled carspaces clearly marked for the disabled must be included in the public carpark). The spaces for public use must be used, allocated and managed in accordance with the Parking Management Plan required by Condition 18 of this permit. All other carspaces must be used, allocated and managed in accordance with the Parking Management Plan required by Condition 18 of this permit.

18. Prior to the commencement of the permitted use a Parking Management Plan must be submitted to and approved by the Responsible Authority. The plan must ensure that efficient and accessible parking is provided for the residential and retail uses allowed by this permit, and shall include (but not be limited to) the following:

a) The allocation of ownership of car spaces associated with the residential car park;

b) Fees, charges, time restrictions and hours of operation of the public car spaces are consistent with market practices for comparable public carspaces in the surrounding area;

c) Management of the public car parking area to ensure efficient utilisation of the public car spaces.

to the satisfaction of the Responsible Authority.

The Parking Management Plan may be amended with the written consent of the Responsible Authority.

19. Prior to the commencement of any buildings and works allowed by this permit, the owner of the land at Nos. 241 - 257 Toorak Road and 625 Chapel Street, South Yarra must enter into an agreement with the Responsible Authority pursuant to Section 173 of the Planning and Environment Act to the satisfaction of the Responsible Authority and such agreement shall require that:

a) The owner must carry out traffic management works in Almeida Crescent, including the works required by Condition 1 of this permit, and modification works to the intersection of Chapel Street and Daly Street in accordance with detailed engineering construction plans prepared by the developer and approved by the Responsible Authority. The owner and/or developer must incur all the costs associated with these works, including any costs associated with upgrading the traffic signals at the intersection of Chapel Street and Daly Street and such works must be carried out prior to the commencement of the use allowed by this permit;

b) The owner and/or developer must incur all costs associated with the construction of all infrastructure including footpaths, traffic management works and the paving materials and construction of the footpath adjacent to the site must be to the satisfaction of the Responsible Authority;

c) A community contribution of $300,000 is to be paid to the Responsible Authority prior to the commencement of the approved buildings and works to provide for upgrade of resources, facilities or the building at the Toorak - South Yarra Library;

d) An open space contribution representing 5 per cent of the site value of the gross floor area of the residential component of the development (less the area of the common property that is shared between the retail and residential components of the development) must be made to the Responsible Authority prior to the issue of a statement of compliance for any subdivision of the land in accordance with the Subdivision Act 1988 (excluding any subdivision under condition 20 below).

The residential component of the development will be calculated by dividing the gross floor area of the residential component of the development by gross floor area of the development (including carparking).

The payment of the whole of the contribution by the owner meets the entitlements of the Responsible Authority under Section 18 of the Subdivision Act 1988 and the Responsible Authority cannot require the owner to make any further contribution for future subdivision.

A memorandum of the Agreement is to be entered on title and the cost of the preparation and execution of the Agreement and entry of the memorandum on title is to be paid by the owner.

20. The owner will prepare a plan of subdivision of the site in which those portions of the site:

a) Forming part of the footpath along Toorak Road and adjacent To the site (to a depth below the existing services to be agreed between the parties); and

b) In Almeida Crescent to be used as a road (to a depth below the existing services to be agreed between the parties)

(as shown on the endorsed plans) are set aside as roads so that upon registration of such plan, those portions of the site will vest in the Responsible Authority as roads pursuant to Section 24(2)(b) of the Subdivision Act 1988.

21. The loading and unloading of vehicles and the delivery of goods to and from the building at all times must be carried out entirely within the designated loading bay area and be so conducted as to cause minimum interference with other vehicular traffic. The loading bay area must only operate between the hours of 6.00am to 10.00pm, Mondays to Saturdays and 9.00am to 10.00pm on Sundays.

22. No polluted and/or sediment laden runoff is to be discharged directly or indirectly into Melbourne Water's drains or watercourses (condition required by Melbourne Water).

23. The drainage of the site shall be to the requirements of the Responsible Authority and the discharge of water from the land affected by this permit shall be controlled around its limits to prevent any discharge onto any adjacent property or street other than by means of an underground pipe discharged to a point nominated to the satisfaction of the Responsible Authority.

24. Any abandoned or disused vehicular crossings must be removed in conjunction with the development and the footpaths and kerb and channel surrounding the site must be reconstructed to the satisfaction of the Responsible Authority.

25. Prior to the commencement of any buildings and works allowed by this permit the owner and/or developer must submit a Construction Management Plan to the satisfaction of the Responsible Authority. The Construction Management Plan must include details on how the construction will be undertaken so it does not impact on the environment. Details to be provided in the Construction Management Plan will include, but not be limited to:

c) The location of hoardings, cranes, hoists and workers amenities;

d) The location of public precautions, loading zones, site sheds, materials, hoisting zones, gantries and any other construction related item or equipment to be located in any street;

e) Details as to how traffic and pedestrian safety and amenity will be controlled within the vicinity of the site and its surrounds;

f) The provision of a traffic management plan, including detailed plans that show all items to be placed on any street during all stages of construction in accordance with approval by the responsible Building Surveyor;

g) Existing services and environmental management;

h) A list of all environmental hazards that the activities on-site pose ie. contaminated soil, materials and waste, dust, stormwater contamination from run-off and washwaters, sediment from the site on roads, construction noise, hours of operation, vibration;

i) Protection measures that will be undertaken to minimise the risk of the above hazards being realised;

j) Regular monitoring/inspections of the above protection measures; and

k) Identification as to who will be responsible for managing all of the above issues.

26. The Construction Management Plan must be approved by the Responsible Authority prior to commencing construction and all buildings and works must be carried out in accordance with the approved Construction Management Plan.

27. The buildings and works hereby occupied or employed, the processes carried on, the materials and machinery used and the transportation of materials, goods and commodities to and from the premises, including during the construction phase of the buildings and works allowed by this permit, shall not cause injury to or prejudicially affect the amenity of the locality by reasons of appearance or the emission of noise, vibration, smell, fumes, smoke, vapour, steam, soot, ash, dust, waste water, storm water, waste products, grit, oil or the presence of vermin or otherwise to the satisfaction of the Responsible Authority.

28. Prior to the commencement of any buildings or works allowed by this permit the owner of the land and/or the developer must satisfy themselves that any contamination (if present) on the land is adequately contained so the site is fit for its intended use and will not have any adverse effect on the users of the land.

29. To minimise environmental problems associated with sediment run-off, any clearing or construction activity associated with development on the subject land, shall be carried out in accordance with the requirements of the Environment Protection Authority.

30. All wastes generated from demolition, site preparation and construction stages shall be disposed appropriately in accordance with the requirements of the Environment Protection Authority

31. The emission of noise or any other emission to the environment from activities on the site shall conform to the standards contained in the appropriate State Environment Protection Policy or policies to the satisfaction of the Responsible Authority.

32. Prior to the commencement of any works whatsoever allowed by this permit a landscape plan indicating the following items, but not limited to, must be submitted to and approved by the Responsible Authority:

a) Accurate widths of footpaths adjacent to the site;

b) Details of paving materials, street trees and furniture to be utilised;

c) For the frontage of the site adjacent to Toorak Road and Chapel Street. Such items must be consistent with existing infrastructure on the southern side of Toorak Road;

d) The construction of materials of any footpath reinstatement adjacent to the frontages of the site; and

When approved, the landscape plan will form part of the endorsed plans under this permit.

33. Before the use allowed by this permit starts, the works shown on the endorsed landscape plan must be carried out and completed in accordance with the endorsed landscape plan to the satisfaction of the Responsible Authority and then maintained to the satisfaction of the Responsible Authority.

34. Any external lighting must be designed, baffled and located to prevent any adverse effect on adjoining land to the satisfaction of the Responsible Authority.

35. External glazing material shall not reflect more than 20% of visible light when measured at an angle of incidence normal to the glass surface unless the Responsible Authority is satisfied otherwise.

36. Air conditioning and all other plant and equipment installed on the subject building shall be baffled in accordance with the requirements of the Environment Protection Authority.

37. All plant and equipment must be contained within the envelope of the building to the satisfaction of the Responsible Authority.

38. Adequate provision shall be made for the storage and collection of garbage and other solid wastes within the curtilage of the site. This area shall be properly graded and drained and screened from public view to the satisfaction of the Responsible Authority.

39. A private contractor must be engaged for garbage collection from the development allowed by this permit and the collection of garbage must be managed and conducted so as not to prejudicially effect the amenity of the locality by reason of appearance. Unless with the written consent of the Responsible Authority, the collection of garbage from the site must only be carried out between the hours of 7.00am to 7.00pm, Mondays to Fridays and 8.00am to 4.00pm on Saturdays.

40. Ramps and entrance doors to the development allowed by this permit must be constructed in accordance with the Australian Standards for Disabled Access. This access must be provided to the satisfaction of the Responsible Authority prior to any part of the use allowed by this permit commencing.

41. Except where no permit is required under the provisions of the Stonnington Planning Scheme, no sign or advertisement shall be constructed or displayed anywhere on the development allowed by this permit.

42. Prior to the commencement of any buildings or works allowed by this permit the owner and/or the developer must obtain approval from the relevant authorities to remove and/or build over the easements pertaining to the site to the satisfaction of the Responsible Authority.

43. The applicant shall liase with National Express Group P/L (Swanston Trams) General Manager, Mr T Greer, regarding the impact of the demolition and development on its public transport services to ensure there is no damage to the VicTrack infrastructure or disruption to the public transport service due to the demolition and construction works.

44. The applicant shall liase with Mr O Hicks, Overheads Manager with Swanston Trams to ensure that there is no damage to the electrical overhead services nor danger to builders or the public to ensure there is no damage to the VicTrack infrastructure or disruption to the public transport service due to the demolition and construction works.

45. The owner must incorporate a display of the history of the site within the development to the satisfaction of the Responsible Authority.

46. The use and development allowed by this permit and shown on the plans endorsed to accompany the permit shall not be amended for any reason without the consent of the Responsible Authority.

a) The use and development is not started within 4 years of the date of this Permit; or

b) The development is not completed within 6 years of the date of this Permit.

The Responsible Authority may extend the times referred to if a request is made in writing before the Permit expires or within the three (3) months afterwards.

If further information is required in relation to Melbourne Water's permit conditions please contact Mugette Stevenson - Marelic on telephone 9235 2523 quoting Melbourne Water's reference 57791.

The applicant should liase with representatives from both Swanston Trams and VicTrack.

1. The occupants of the units shall not be eligible for any priority resident parking scheme.

2. This permit does not constitute approval for any advertising signage. Any advertising signs intended to be displayed on the development must be submitted and considered under a separate planning application.

3. This permit does not constitute approval to build over and/or remove any of the easements pertaining to the site. The owner or developer of the site must seek separate approval from the relevant authorities, including Council's Building Control Services Unit, to build over and/or remove any of the easements pertaining to the site. For further information contact Council's Building Control Services Unit on 8290 3527.

4. The owner or developer of the site must ensure there is an Occupational Health and Safety Plan in place during the construction of buildings and works allowed by this permit. This Plan must be in accordance with the relevant legislation and it must include all areas adjacent to the site and any works that may impact on public areas.

5. To help minimise environmental problems associated with sediment run-off, any clearing or construction activity associated with development on the subject land should be carried out in accordance with EPA Guidelines.

6. All wastes generated from demolition, site preparation and construction stages should be disposed appropriately in accordance with EPA Guidelines.

The Responsible Authority is directed to issue a permit in accordance with this Order, pursuant to Section 85(1)(b) of the Planning and Environment Act 1987.

_________________________ ___________________

PLANNING AND ENVIRONMENT LIST PLANNING AND ENVIRONMENT LIST

For the Responsible Authority: Mr. A. Finanzio of Counsel, by direct brief.

Mr. Finanzio called Mr. T. Biles, a Consultant Planner, as a witness.

Objectors: Ms. P. Rayson (for The Toorak South Yarra

Group Inc.), and Mr. A. Vasiliou (Day 1 and 2 only).

For the Permit Applicants: Mr. S. Morris QC and Ms. M. Quigley of

Counsel, instructed by Arnold Bloch Liebler Solicitors. Mr. Morris and Ms. Quigley called the following witnesses:

a) An Application under Section 82 of the Planning and Environment Act 1987 ("the Act") brought by the Toorak South Yarra Group Inc and Andrew Vasiliou for review of a decision of the City of Stonnington ("the Responsible Authority") to issue a notice of decision to grant a permit for the demolition of the existing buildings as 257 Toorak Road and 625 Chapel Street, South Yarra and use and development of the land for a 27 Storey building including 213 dwellings, 78 serviced apartments, shops and food and drink premises and basement car parking for 666 cars, and

b) An Application under Section 80 of the Planning and Environment Act 1987 ("the Act") brought by the Permit Applicants, Sunball Pty Ltd and South Yarra Factory Holdings Pty Ltd for review of conditions in the notice of decision to grant a permit dated 4 December 2001.

2. There being no objection, the permit application was amended pursuant to Clause 64(2) of Schedule 1 to the Victorian Civil and Administrative Tribunal Act 1998 to read:

"Demolition of the existing buildings and use and development of the land at 241 - 257 Toorak Road and 625 Chapel Street South Yarra for dwellings, serviced apartments, shops and food and drink premises, basement car parking and the sale of consumption of liquor and a reduction in the number of car parking spaces required.

3. Mr. Barlow, in his written Statement of Evidence, described the proposal as follows:

"The proposal provides an integrated mixed use development for the site. The key components of the development are:

* 12,720m2 of retail floorspace over 4 levels fronting Toorak Road and Chapel Street.

* Basement car parking over 4 levels for 666 cars."

4. Mr. Biles, in his written Statement of Evidence, described the subject land and surrounding development as follows:

"The review site is located on the north-west corner of Toorak Road and Chapel Street in South Yarra. The site is irregular in shape, incorporating part of the footpath along the northern side of Toorak Road.

The site has a frontage of 47.7m to Toorak Road, a frontage of 89.2m to Chapel Street (excluding the corner splay) and a frontage of 61.3m to Almeida Crescent. The site has an overall area of approximately 6,000m2.

There is a fall across the land of approximately 5.8m from the south-west corner to the north-east corner of the site. The site comprises several properties.

Three buildings currently occupy the site. The two main buildings are attached and cover the majority of the site, known as 'The Fun Factory'. These buildings are occupied by a number of different uses including Freedom Furniture, Fantastic Furniture and a nightclub/bar. There is also a ground level café located on the corner of Toorak and Chapel Street, a youth orientated apparel shop and a roller rink.

On the western side of the land there is a two storey Victorian dwelling used as an office. There is an open carparking area located at the rear of this property that is accessed from Almeida Crescent.

The site is a landmark property located at a major gateway to the Chapel Street and Toorak Road retail precinct.

A number of permits have been granted for the use and development of the above property.

Planning Permit No. 89/451 approved the development and use of a 15 storey mixed use building comprising retail, offices, residential apartments and associated carparking. In 1999 Council refused the third request for an extension of time for this permit on the basis that circumstances had changed since the permit was first issued. Council considered that a new application should be lodged.

In 1999 Council refused an application for a 42 storey building to be used for retail, hotel rooms, commercial, convention facilities, residential purposes and associated carparking.

The site is located within the Toorak Road - Chapel Street Shopping Centre. There are a number of properties that have a direct interface with the site.

A 13 storey building is located directly to the west of the site and presents a solid brick wall to the subject site with an open carpark area at the rear with access onto Almeida Crescent. This building is a particularly prominent element within the Toorak Road streetscape and detracts from the overall character of the area due to its bulk, design and lack of detailing.

The Como Centre is located to the east of the site, on the opposite side of Chapel Street. This development includes a 5 storey podium at the corner of Toorak Road and Chapel Street with an office tower that has a height of 83.13m AHD and an antenna height of 99.62m AHD. Further north of the office tower and still part of this complex is a residential tower, known as The Armytage Apartments, fronting Chapel Street.

To the north of the site, on the opposite side of Almeida Crescent, is a six storey office building of little architectural merit which detracts from the streetscape quality of this section of Chapel Street.

To the north-west of the site is a double storey commercial building and the Daly Street multi-deck carpark comprising 515 carspaces.

To the south of the site, on the opposite side of Chapel Street, are two - three storey buildings used for a range of retail uses.

The site forms part of the Toorak Road/Chapel Street retail precinct, which is of metropolitan significance as the premier retail strip in Melbourne.

From a land use and urban form perspective, the character of Chapel Street varies markedly between properties north of Toorak Road and properties south of Toorak Road. The precinct south of Toorak is made up of generally two storey buildings used for retail purposes.

The precinct north of Chapel Street is developing and currently comprises medium rise residential buildings of varying architectural style and merit. The eastern side of this section of Chapel Street contains two significant land holdings that are undergoing change.

The property at 800 Chapel Street (generally to the north, of Malcolm Street) is currently being developed with an apartment complex consisting of three substantial residential buildings. This development which will create a mid rise built form edge at both Chapel Street and Malcolm Street.

An approval exists for a substantial 7 - storey office building on the property a Chapel Street (generally south of Malcolm Street). It is understood that Australand have recently acquired this property and have plans to develop a grouping of buildings on the land to accommodate offices, apartments and some retail floorspace."

5. The subject land is covered by the Stonnington Planning Scheme and is in a Business 1 Zone. The southern half of the subject land (241 and 257 Toorak Road), is included in a Heritage Overlay (HO128 - The Cunningham and Oxford Streets Precinct).

6. A permit is required to use the land for dwellings in the Business 1 Zone because the frontages at ground level to the proposed dwellings exceeds 2 metres. A permit is required to use the land in the Business 1 Zone for retail premises (other than food and drink premises). A permit is required to use the land to sell or consume liquor pursuant to Clause 52.27 of the Stonnington Planning Scheme because a license is required under the Liquor Control Reform Act 1998.

7. A permit is required to construct a building or to construct or carry out works in the Business 1 Zone. A permit is required to demolish, alter or remove a building and to construct a building under the Heritage Overlay. A permit is required to reduce the number of car spaces provided, pursuant to the Table at Clause 52.06-5.

8. The relevant policies which are required to be considered when assessing this application are found within the State Planning Policy Framework (SPPF) at Clauses 14.01-Planning for Urban Settlement; 14.02-Metropolitan development; 15.11-Heritage; 15.12-Energy Efficiency; 16.02-Medium Density Housing; 19.03 Design and built form; and within the Local Planning Policy Framework (LPPF) at Clauses 21.05-Urban Environment and Character; 21.07-Housing Choice and Diversity and 21.09-Retail Areas Viability. As well the following Local Policies at Clauses 22.02-Urban Design Policy; 22.05-Residential Development in Commercial Areas Policy and 22.09-Retail Centres Policy.

9. The written submissions and evidence addressed the planning provisions and relevant State and local planning policies in detail.

10. Mr Finanzio, in his written submission for the Responsible Authority described the process leading up to the permit application as follows:

"A preliminary public consultation process was undertaken before the application was lodged. This process was organised by the owner/developer and involved two community information evenings and days on 13 and 14 June, 2001 at the Como Hotel.

Over 800 people comprising land owners and representatives of key interest and community groups, including local Councilors, were invited to attend the community information evenings. Approximately 150 people attended over two evenings and they were provided with an opportunity to review the preliminary plans and discuss various aspects of the proposal with the owners and members of the design team.

A log of comments from people attending the sessions was maintained. A number of people provided brief written comments following the information sessions. These comments included the following observations:

* An improvement on the previous proposal submitted to the Council;

* The central location of the tower on the subject land was a positive result;

* Support for the contemporary and innovative architectural solution for the site;

* An exciting project for South Yarra and an asset for the area;

* The proposal will enhance the corner of Toorak Road and Chapel Street; and

* Appreciation of preliminary consultation and transparency of the process.

Some of the feedback also raised concerns in relation to:

* Potential traffic congestion arising from the development; and

* Possible overshadowing from the tower across residential properties to the south of Toorak Road."/

11. Notice of the permit application was given in accordance with Section 52 of the Act by notices on the subject land facing Toorak Road and Chapel Street, and by mail to owners and occupiers of over 700 properties within the vicinity of the subject land, and also by notices in "the Stonnington Leader". 37 objections were received and Mr Finanzio summarised those objections. Mr Finanzio said that in addition to the objections the Responsible Authority also received written statements in support of the application.

12. A consultative meeting was held on 9 October 2001. A Notice of Decision to Grant a Permit was issued on 4 December 2001.

13. Ms P Rayson, for the Toorak South Yarra Group Inc submitted:

"The Group submits that there are a number of major flaws with the proposal that combine to demonstrate its unsuitability for the area."

The Toorak South Yarra Group is extremely concerned that the introduction of the proposed large centre into South Yarra will detrimentally affect the neighbourhood.

The Group is very concerned that there has been no detailed and adequate retail impact assessment of this proposal in accordance with the Retail Centres Policy provisions of the planning scheme. It is far to late after a permit is issued and the use commenced to have serious adverse economic impacts that become evident, effectively altering the future strategic planning for South Yarra. The Group submits that this deficiency with the present proposal when combined with other issues raised by Objectors should lead to a rethink as to whether this proposal should go ahead in its present form.

1. The economic and retail impact assessment of this large proposal is lacking in sufficient detail to enable an accurate impact assessment to be ascertained.

2. The proposal has the potential to substantially increase the detrimental amenity affects already being experienced in surrounding residential areas.

3. The proposal will increase the existing car parking shortage in South Yarra. This is likely to result in further overspill of parking into residential streets with resultant amenity impacts."

14. Mr Vasiliou's concerns were mainly focussed on his perception that the proposed development, particularly the impact the height of the development would have on his property situated to the west in Claremont Street. In particular his concern was that his building was included within an area denoted under the planning scheme as appropriate for low rise development with a 16m height preferred whereas this site was in an area preferred for High Rise. He submitted that all buildings within this area should be allowed the same height.

15. Mr Vasiliou also expressed concern with regard to the traffic within the area that would result from the proposed development. It was his view that there had been an insufficient assessment of the likely impact of traffic generated by the site and the resultant impact such traffic would have on the surrounding streets.

16. Mr Finanzio submitted that the policy matrix established by the planning scheme identifies the subject land as a key strategic site being located within a regional shopping centre (the Chapel Street/Toorak Road Shopping Centre). Mr Finanzio submitted:

"As a consequence the proposed mixed use nature of the development is entirely consistent with the objectives of the MSS. The proposal will provide:

* an active interface with Chapel Street and Toorak Road; and

* residential accommodation on the upper levels of the building that complement the growth of residential uses to the north and east and enhance the identity, character and performance of the area as one of the prime strip activity centres in metropolitan Melbourne."

17. It was Mr Biles opinion that the site "sits at the entry or gateway to the premier retail centre in the municipality". That the proposed development at the major intersection of Toorak Road and Chapel Street would contribute to and enhance the status of this gateway and a building of the height proposed would complement the gateway by mirroring Como tower on the opposite corner of the intersection. Although the tower would exceed the suggested height guidelines by about 7.5m he did not consider this an issue given the mixed composition of the building form.

18. It was his view that the proposal would contribute to the Regional Shopping centre function of Chapel Street and would assist in extending the mixed use area to the north towards the river and to Church Street beyond, establishing the area as a boulevard.

19. Within the public realm it was Mr Biles view that the building in its 5 components; podium, tower and 3 smaller elements allows for it to sit well with and positively contribute to the neighbouring structures. In this respect he considered that the building particularly along the street frontages of both Toorak Road and Chapel Street would allow for more pedestrian activity and interaction in this area but considered that to improve pedestrian convenience and amenity there should be an increase to the ground floor building setbacks and also an increase in the setbacks of levels 1 and 2 particularly to ameliorate any wind impact.

20. Mr Morris and Ms Quigley, for the permit applicants, submitted:

* because of its premier location on the corner of Toorak Road and Chapel Street, South Yarra, the gateway into this noted commercial precinct.

* for its potential to further the strategic policy objectives of Stonnington, in particular with regard to the Toorak Road/Chapel Street activity centre and urban consolidation objectives in relation to residential development.

* which dictates (and has received) a superior architectural and urban design outcome.

* which requires a careful assessment of the traffic and car parking needs and opportunities, and

* in which a balancing of the competing objectives of preservation of heritage buildings on the one hand, and the promotion a development of high quality architectural and urban design and a mix of activities and uses which fall squarely within the objectives for the use and development of this site on the other.

Opposition to the proposal is based on the grounds which assert that the building is inappropriate in its context, is excessive in height and represents an overdevelopment of the site, results in excessive overshadowing, has unacceptable traffic an parking impacts, wind impacts, removes buildings of heritage value heritage.

We submit that the history of the design preparation of the current proposal demonstrates that the design has been carefully and sensitively worked through with the input of a number of design experts, and has included the Council officers. The architect, Karl Fender of NFK will explain the design process and the design philosophy behind the design. This location and size of site can and should, in both policy and design terms, accommodate a larger and taller built form."

21. Mr Morris and Ms Quigley called the architect for the proposal, Mr C Fender, a Director of Fender Katsilidis Australia Pty Ltd, as a witness. Mr Fender provided a detailed description of the proposal and its development, which had particular regard to traffic, wind and shadowing.

22. Ms Rayson particularly expressed concerns regarding the impact such an imposing building would have with regard to overshadowing. Mr Biles recognised that the podium will overshadow parts of Toorak Road and Chapel Street but did not consider this to be of major concern from an urban design perspective. Mr Barlow was of a similar view stating that:

"Overshadowing implications of the proposed development relate principally to the public realm rather than surrounding residential properties. Owing to the location of the site on the northern side of Toorak Road, the proposed development will cast a shadow predominantly across Toorak Road at the March/September equinox. The extent of shadowing cast by the proposed residential tower will not extent to the residential properties located to the south of the retail strip along Toorak Road at the equinox.

It is inevitable to some degree that any extensive building form on the subject land will cast a shadow across the south side of Toorak Road. There will be times during the day when the footpath on the south side of Toorak Road is affected by the shadow of the proposed tower.

This already occurs in the vicinity of the site as a result of the ANZ and Como buildings. However, given that the shadow will be cast by the tower rather than the podium, the shadow will gradually move from west to east through the duration of the day. Thus overshadowing across any part of the south side of Toorak Road will be for a relatively short period rather than for the duration of the day."

23. We accept there will be some overshadowing and this could extend to the residential properties to the south east behind Chapel Street and Toorak Road, but the impact of such overshadowing from this proposal is considered to be minimal. The main area of overshadowing will occur more generally in the public realm and will not remain for extended periods.

24. There were concerns about wind impacts of the proposal. We had the benefit of a report and evidence from Professor Melbourne, an acknowledged expert in this area. We consider that concerns particularly regard the comfort of pedestrians walking along the front of the building have been met by the modifications recommended by Professor Melbourne particularly of the use of a canopy over the footpath and the improved access to the main entrance.

25. Mr J Henshall, a Consultant economist and planner, provided a written report, gave evidence and was cross examined. The assessment of Mr Henshall covered the following aspects:

"* an outline of the proposed South Yarra Centre project and the retail component;

* a description of the dynamic changes underway in retailing and the need to adapt to new and emerging trends in order to strengthen existing retail activity and attract new retail functions;

* a description of the existing retail and associated activities in the Prahran Activity Centre and the extensive catchment it serves; and

* an assessment of the proposed retail component in terms of meeting the Retail Guidelines (1989), including consideration of potential retail impact on existing retail activities and anticipated contribution to net community benefit."

26. The evidence of Mr Henshall demonstrates the significance of the proposal, as follows:

"The proposed development will be a significant new component in the overall provision of retail and other services in the Toorak Road - Chapel Street locality. It will be a feature attraction for local and metropolitan residents as well as visitors to Melbourne. This locality already enjoys a strong reputation as a place to visit, especially for the retail and restaurants offer, but there is now considerable new competition, and South Yarra needs to meet this in a commercial viable way which adds to the shopping experience and positively contributes to the overall activity centre.

Overall the proposed South Yarra Centre will provide an important contribution to net community benefit for the residents of Stonnington, as well as for others coming from further afield to shop and spend some time here. This net benefit will also include the creation of many new job opportunities and also the contribution to municipal rates. Economic impacts on existing retailers would be minimal, if at all. And most significantly, the development will contribute to a renaissance in quality retailing and service provision in South Yarra. This aspect of quality service provision is, after all, one of the long-enduring qualities of this very well-known shopping and service precinct in Melbourne."

27. Part of the site is within Heritage Overlay 128 Cunningham and Oxford Street Precinct. The buildings on site known as the Cable Tram Engine House and the Doctors House are proposed to be demolished. We were provided with a report by Dr Miles Lewis on heritage issues, but there being no real issue raised regarding the demolition of these buildings it was not necessary for Dr Lewis to be called. We considered that the conclusion reached by the Responsible Authority to allow the demolition of these buildings acknowledges the balancing it has taken into account given the strategic importance of this site and the contribution this proposal could make to the municipality. We have considered and are comforted by the conclusions of Dr Lewis which were as follows:

"This report has not been an exhaustive investigation of the history or development of the buildings concerned, but it has been sufficient to provide an answer to the two main questions, viz:

1. The former cable tram engine house contains no machinery or portable relics of its former use, unless there are machinery items buried below the present floors. Even the original structure has been so transformed that only significant elements that can be discerned are the original bluestone plinth of the exterior and the plate girder and seven roof trusses over the single storey portion, none of which are aesthetically or technically distinguished. Two further trusses probably survive, encased in timber, and it is possible that the original columns may be embedded within the present brick and concrete wall. If so they might well be incorporated within the proposed redevelopment, for they were ornamental and imposing. Otherwise a display of history of the site is all that could be done.

2. The 'Doctor's House' is of no apparent historical or architectural significance. It was designed by an architect who is almost unknown, and has never been thought to be important. It is visually pleasing, but because of its siting makes only a very limited visual contribution to its surroundings."

28. One of the main issues of concern was traffic and parking. Ms K Partenio, a consultant traffic engineer of GTA Consultants Pty Ltd provided a written report, gave evidence and was cross examined. She assessed the statutory requirement for car parking pursuant to Clause 52.06 of the Stonnington Planning Scheme as 1520 car spaces. Ms Partenio analysed the availability of parking in the precinct, public transport accessibility and made an empirical estimate of parking demand.

29. It is proposed that there be four levels for car parking totalling 666 bays. The car parking will be split into two areas, with a private car park for residents containing 344 spaces and a public car park containing 322 spaces. It was clear from the assessment of Ms Partenio that the supply of car parking for the residential tenants would meet the Good Design Guide requirements. It was the assessment of Ms Partenio that the public car park provided to accommodate parking associated with retail uses on the site, being 322 spaces, would be eight short of the estimated peak demand at Friday lunch time.

30. We accept that the provision of car parking would be satisfactory.

31. One of the conditions of the notice of decision would require that the minimum ceiling height of the car parks be 2.2 metres. It was the evidence of Ms Partenio that:

"This condition seeks a minimum height clearance in the car park of 2.2m. Clause 52.06 of the Stonnington Planning Scheme requires only a 2.1m height clearance. The difference between the two heights will have a minimal effect on the number of vehicles that would be unable to enter the car park, noting the following typical vehicle heights:

* The Australian Standard for Off-Street Parking facilities indicates a 99.8 percentile car height of 1.47m;

* A Holden Jackeroo has a height of 1.84m (4WD); 3

* A Toyota Landcruiser has a height of 1.875m (4WD); 3

* A Toyota Tarago has a height of 1.82m (people mover); 4 and

* A Mitsubishi Starwagon has a height of 1.855m (people mover).5

The additional height requirement does however add to the amount of excavation of the site and cost of construction."

32. Mr Morris submitted that 2.1 metres would be appropriate and would result in less excavation and less pressure on the water table.

33. Mr Finanzio submitted that the planning scheme nominated 2.1 metres as a minimum, rather than as a desired criterion. He submitted that a 2.2 metre clearance was more appropriate and would provide a greater degree of flexibility.

34. We are of the view that given the difference between 2.2 metres and 2.1 metres is marginal, both in cost and benefit, we would therefore accept the submission of Mr Finanzio that a 2.2 metre clearance would be more appropriate and provide a greater flexibility.

35. We are satisfied that the proposal demonstrates excellence of design and is an appropriate response to this landmark site, both in terms of architectural design and urban design. We consider that the issues of concern to the objectors have been more than satisfied by the reports and evidence of the experts who were called by the Responsible Authority and the Applicants. For the above reasons these applications are allowed in part. It is appropriate for a permit to be granted subject to conditions, and we will so order.

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