1. By consent and pursuant to Section 60 of the Victorian Civil and Administrative Tribunal Act 1998, Ms Phillipa Martin is joined as a party to this proceeding. In addition and also by consent, the revised plans dated 8 March 2012 prepared by Orbit Architecture are substituted as the new application plans to this proceeding.
2. In Planning Permit Application No. PP11/00895, the Application for Review of the failure of the responsible authority to make a decision in a statutory period is granted.
3. In relation to the land at 126-138 Union Road and 63 Sunbury Crescent in Surrey Hills, a permit is granted and directed to be issued.
4. Where the land is affected by a Special Building Overlay and an Environmental Audit Overlay, the permit shall allow:
   • the use of the land for the purpose of dwellings, for food and drink premises (café) and shops;
   • the use of offices (no permit required);
   • construction of a four level residential building; and
   • car parking, loading bay and bicycle parking dispensation

in accordance with the endorsed plans provided for, and subject to the permit conditions set out in the annexure to this decision.

Mr John Cicero of Best Hooper Lawyers appeared on the first two hearing days. On the third hearing day Ms Sarah Raso of Best Hooper Lawyers appeared instead. During the first two hearing days, Mr Cicero called the following expert evidence:

• Planning evidence from Mr Robert Kelderman
• Heritage evidence from Mr Bryce Raworth
• Traffic engineering evidence from Mr Jason Walsh.

There was a consensus that the author of the relevant photomontages (Chris Goss) was not required to appear.

Claire Longmuir, Cliff Williams on behalf of the Surrey Hills Progress Association Inc and Phillipa Martin.

1. This Tribunal proceeding involves the land at 126-138 Union Road and 63 Sunbury Crescent in Surrey Hills. The land comprises six titles on the western side of Union Road, currently used for commercial/retail purposes. In concise terms, it is proposed to build a four storey mixed use development on the review site, which would retain the period facades of three of the six existing buildings. Objections have been received from certain neighbours but as Council had not made any formal decision in the sixty day statutory period, the Applicant then referred the application to the Tribunal for resolution pursuant to section 79 of the Planning and Environment Act 1987.
2. In the context of this being a Major Cases List proceeding, this matter was set down for a hearing over 23, 24 and 26 April 2012. As the allocated members for this proceeding, we heard submissions from parties over the first two hearing days, then requested that Council and the Applicant prepare certain further material to be discussed at 2.15pm on the final hearing day of 26 April 2012.
3. Once we received this further information on the afternoon of 26 April 2012, we then stood the hearing down for a short period, and then returned and provided the parties with an oral decision. The text set out below constitutes the oral decision which we provided, with some minor editing. As an addendum, we have also confirmed that we wish to adopt the design changes discussed on the final hearing day in relation to the lift lobby layout and also the north-facing balconies of the four level building module, as shown in the concept plans tabled by the Applicant on the final hearing day. We can also indicate that we are satisfied with the external "materials samples" shown to us on this final hearing day.

1. Key features of proposal are the development of the review site for a four level mixed use building and associated car parking dispensation. The development (as amended) would involve 31 dwellings spread over the three upper levels, two levels of basement car parking, together with 7 ground floor shops, office spaces and a ground floor restaurant. The most up to date proposed basement plans propose that there be 85 on-site parking spaces - see these plans annexed to the Traffic Group expert report. Dispensation is also required with respect to the relevant loading and bicycle parking requirements as they apply to the proposed shops and restaurant.
2. Turning now to the site and surrounds, the overall review site consists of 6 combined land titles and is separated from the other nearest private lots by roads or the rear laneway. This is an unusually large combined site for this type of middle suburbs location at 2204 sqm. This is a mixture of one and two storey commercial buildings, some of which are older and have heritage qualities, while others are fairly non-descript, currently occupies the review site. The street walls on the subject land facing Union Road range from single storey to 2/3 modern stories high. There are currently several retail/commercial businesses operating on the review site, notably the "New Litho" printing operation that we are told employs in the order of 60 staff. There are 9 on-site parking spaces at the rear of the review site, accessed via the rear laneway.
3. This section of Union Road constitutes the Union Road activity centre, with the Surrey Hills railway station lying about 100 metres to the east of the review site. This activity centre features a mix of commercial and retail uses plus a church. Many of the shop facades are of a period nature and they range in height from single to 2/3 modern stories high. Beyond this section of Union Road is an established and attractive established residential area, containing many handsome period weatherboard dwellings, some of which have been renovated and extended.
4. In relation to the planning framework, the review site is zoned Business 2. Whilst it is also affected by a Special Building Overlay and an Environmental Audit Overlay, our understanding is that the constraints posed by these overlays can be readily met and hence they are of little consequence in practice. With respect to the State and local planning policy framework, these are well set out in the Maddocks written submission we have been provided with, and we do not need to repeat same. We are also conscious that the relevant policy framework has already been spelt out at length in at least two recent Tribunal decisions involving other nearby sites in this locality - see for example the Interim Decision dated 19 April 2012 to the adjacent 140-148 Union Road site, being the Tribunal P2992/2011 proceeding.
5. In relation to heritage issues, it remains that there are no formal heritage controls affecting the review site. However we acknowledge that relevant heritage studies have been done, which inform us that the buildings on three of the six lots in question here do have a "contributory" status. We understand that Council is in the process of preparing Amendment C148, which would create a heritage overlay precinct encompassing both the western and eastern sides of this Surrey Hills activity centre, extending both north and south of the railway line.
6. With respect to Council's June 2011 Activity Centre Strategy ("ACS"), similarly it remains the case that it does not form part of the Planning Scheme. Despite it being a strategic document rather than a formal planning control, the ACS seeks to impose a 3 storey height limit for new development on the strip of lots along this western side of this activity centre including the review site. Whilst we can certainly have regard to this strategic document, at this stage we can only give modest weight to this document for the reasons already set out in the previous decision of Asolo Developments Pty Ltd v Boroondara CC VCAT Ref P2914/2011 involving the nearby site at 619-623 Canterbury Road.
7. Whilst we have been told that Council is seeking both interim and permanent overlay controls which would impose a mandatory three storey height limit on the review site (see the proposed Amendments C107 and C108), we understand the relevant Planning Scheme Amendments are still in their infancy and hence at this stage similarly we can give this initiative by Council only modest weight.
8. With respect to the permit application process, the original application plans attracted objections from certain neighbours and from the Surrey Hills Progress Association Inc. However as no formal decision had been made by Council 60 days after the permit application was lodged, the Applicant then referred this application to the Tribunal for resolution.

Circulation of revised plans and Tribunal hearing commencing Monday 23 April 2012

1. In the lead up to the Tribunal hearing, certain procedural orders were made by the Tribunal and the Applicant circulated revised plans which it proposed be substituted at the beginning of the Tribunal hearing. We refer here to the revised plans prepared by Orbit Architecture dated 8 March 2012. Compared to the original application plans, these revised Orbit plans:
   • Involve a more contemporary style of architecture.
   • Break up the new built form into essentially two north-south modules, being a front module facing onto Union Road extending up to four levels, then an open courtyard area running north-south across the middle section of the review site, plus another building module running north-south across the rear section of the site near the laneway and extending up to three levels.
   • Retain and reinstate the heritage contributory facades of the two relevant buildings facing Union Road as well as the brick building on the corner with Croydon Road.
   • Provide for two levels of basement car parking, with the entrance ramp for vehicles located on the south side off Sunbury Crescent.
   • Provides a ground level pedestrian corridor, connecting Union Road with Sunbury Crescent.
2. In addition there were expert planning, traffic and heritage reports circulated by the applicant in the lead up to the Tribunal hearing, plus a report verifying how the relevant photo montages were prepared. The traffic report prepared by Mr Jason Walsh of the Traffix Group proposed some changes to the basement design as part of showing where the structural columns would be located. These changes included being able to provide 4 extra parking spaces ie there could be 85 on-site parking spaces provided.
3. At the beginning of the hearing, we confirmed that we had both inspected the site over the days leading up to the hearing. We by consent made orders that the abovementioned Orbit Architecture plans dated 8 March 2012 be substituted as the new application plans for this proceeding, and that Ms Phillipa Martin be made a party to the proceeding.
4. Member Martin also explained the background situation and timing issues in terms of the Tribunal on 19 April 2012 handing down its interim decision for the four level residential building proposal for the site on the northern side of the Croydon Road intersection ie 140-148 Union Road VCAT proceeding P2992/2011. In particular, he confirmed that this interim decision had been sent out by either email where applicable or otherwise by express mail, but in a situation where due to mailing constraints the express post deliveries would not arrive any earlier than Monday 23 April. However to address this, Member Martin brought along seven hard copies of this interim decision to the first day of this P62/2012 hearing, and we stood the hearing down mid-morning on 23 April to allow extra time for those interested to read this interim decision.
5. Over the rest of the Monday and then the Tuesday in this P62/2012 proceeding, we heard submissions from Council, from two nearby neighbours in Ms Martin and Ms Longmuir, from Mr Williams on behalf of the local Progress Association, and from Mr Cicero on behalf of the Applicant. We also received expert planning evidence from Mr Kelderman, expert heritage evidence from Mr Raworth and expert traffic evidence from Mr Walsh. There was a consensus that the person who prepared the photo montages (being Mr Goss) did not need to appear at the hearing.
6. At the end of the hearing process at roughly mid afternoon on the Tuesday 24 April, we stood down the hearing briefly. We then returned and advised the parties as follows:
   • We considered the revised Orbit Architecture plans to be a major improvement on the earlier plans.
   • In most respects, we were supportive of the proposal.
   • The stand-out issue had been whether or not it is acceptable for the proposed new built form to extend beyond three levels to propose a four level module oriented towards Union Road.
   • We were satisfied that in the particular context here, a four storey element to the proposal was acceptable ie the fourth level could sit comfortably in its setting.
   • However before any approval is granted, we indicated that there were a handful of aspects to the proposal where we wished Council and the Applicant to use the final hearing day available to progress the situation and then report back to us. Following this approach, we asked Council to prepare a new permit condition and requested the Applicant to prepare certain further design information, with a view to this fresh information/plans being discussed at the re-convened hearing at 2.15 pm on the Thursday 26 April.
7. We also asked Mr Williams (who was the only objector still present at this stage) to contact Ms Martin and Ms Longmuir to let them know where the process was up to ie all objectors were welcome to also participate in the further hearing process on the Thursday.
8. When we did re-convene the hearing in this manner on 26 April 2012, we discussed the further information we asked to be provided. In particular, Council tabled a proposed "noise control" permit condition and the Orbit Architects project designer Mr Hockley talked us through the proposed revised lift lobby and security arrangements, together with how the balconies at the northern end of the proposed four level module might be alternatively treated. He spoke to some fresh concept plans that we understand were prepared over the previous 36 hours. We were helpfully provided with a sample of the proposed external vertical battening material which was a major design element, which was presented to us as not actually timber, but a metal product coated with colorbond, made to look like timber
9. We allowed further time for Ms Piskuric to obtain further instructions regarding the alternative design treatment presented us regarding the 4th level north-facing balcony. She advised in due course that she was instructed that Council was content for the Tribunal to use its discretion in this regard. Ms Martin informed us that she had rung another objector Ms Longmuir, who had indicated that any reduction of the new built form so as to have less visual bulk when viewed from Croydon Road, would be supported.

1. It is appropriate that we now summarise our main findings on the key issues arising in this proceeding, as follows.

1. A good place to start is to clarify those aspects of the proposal and planning framework which were not in dispute during the hearing.
2. It is appropriate that we give significant weight to the following non-contentious features of the proposal:
   • It was not challenged by any party that the Orbit Architecture plans are a major improvement upon the previous plans, and that the use of contemporary architecture per se is appropriate for this location.
   • In particular, there was a consensus that some positive features of the Orbit Architecture plans are the retention of the facades of the three buildings on the review site which have the requisite heritage qualities, the splitting up of the new built form into the two north-south oriented modules, the provision of substantial on-site parking in the two basement levels and the use of a variety of articulation, finishes and materials.
   • There was no challenge to the basic proposition that the planning framework is telling us that activity centres such as this are intended to accommodate more intense residential built form as part of the urban consolidation process. Hence the key issue is "managing change" rather than preserving the status quo.
   • There was no disputing that the proposal has a strong level of strategic policy support and that it is a major plus for the proposal that it is surrounded on all four sides by either roads or the rear laneway. It also assists that much of the length of the rear laneway is unusually wide at 6 metres, although it narrows down to 3 metres at the southern section. In addition it was implicit in the debate about the western interface that there is a lower level of sensitivity involved where this interface involves a church building to the south-west and a quite prominent two storey circa 1980s dwelling to the north-west with a pedestrian path (which appears to mainly have a service rather than an amenity function) running alongside its eastern boundary.
   • There was very little specific challenge to the three level height of the proposed building module on the western section of the site closest to the rear laneway. For example, in response to our queries, it was evident that both Council and Ms Martin were much more concerned about the proposed fourth level on the module closest to Union Road, and had little quarrel with the proposed three level module. It also seems fair to say that the indications were that most if not all of the heat in the debate about the other building module oriented to Union Road would have dissipated if this module been restricted to three levels, which even Council's own ACS document anticipates.
   • There was general acceptance of the external materials as proposed, but some discussion centred around the excessive use of concrete/render to the west elevation facing the laneway.

Tribunal's findings - acceptability of proposed 4th level on building module oriented to Union Road

1. It is clear to us that the stand out issue in this proceeding was whether or not it is an acceptable planning outcome that the proposed north-south building module oriented to Union Road goes beyond three levels in scale. This proposed fourth level threw up some obvious planning issues including "visibility", "neighbourhood character" concerns, potential amenity impacts and going beyond the preferred height limit set out in Council's ACS document.
2. Relying on the expert planning evidence of Mr Kelderman, the Applicant urged us to find that this proposed fourth level is an acceptable planning outcome in this type of activity centre location, on a site surrounded on all four sides by a road or laneway. This was disputed by the Council and objectors, who submitted that the fourth level would be the "straw that breaks the camel's back" in terms of how dominant this new building module would appear.
3. Our finding is that in the particular context here and with the benefit of the revised Orbit Architecture plans which are a major improvement on the previous ones, and relying on the expert planning evidence of Mr Kelderman, we are satisfied (with one proviso) that the fourth level on the new building module facing Union Road is acceptable and can sit comfortably in its setting. We rely on the following factors in reaching this finding.
   • With this being an activity centre location and a site zoned Business 2, we accept that there is a strong level of strategic policy support for taking advantage of the urban consolidation opportunity which this site presents and avoiding an unnecessarily timid design approach.
   • This strong strategic planning support is reinforced by the fact that the Surrey Hills railway station lies about 100 metres to the east ie there is outstanding connectivity with fixed rail public transport.
   • The very fact that the review site is surrounded on all sides by a road or laneway in itself provides a significant buffer area to the surrounding lower scale residential area, that shows considerable advantage in minimising the potential amenity impacts of the fourth level on the neighbours.
   • Similarly it is a very positive feature of the design that the new built form has been split up into two north-south building modules, with an open courtyard between. Of these two modules, only the module closest to Union Road extends to the fourth level. By contrast the module closer to the rear laneway extends only to three levels. When one considers that the adjoining dwelling on the north-west side of the review site is itself a prominent two storey circa 1980s dwelling, we perceive this as an appropriate transitional "stepping down" of the built form.
   • Taking this overall design approach into account but subject to the proviso discussed below, we are satisfied that the proposed fourth level will be an adequate distance from the neighbouring dwellings further west along Croydon Road and Sunbury Crescent as to provide a reasonable amenity outcome. In other words, we are satisfied that even those existing dwellings with some degree of proximity to the four level module will be far enough away that they will only have long distance views of the new building, quite possibly screened out to some extent by the street trees in the intervening area for at least some portion of the year.
   • With respect to neighbourhood character and streetscape concerns, we are satisfied that the proposed fourth level is setback greater than 8 metres from Union Road and that this level will not unduly dominate same or unduly detract from the existing streetscape in relation to both Union and Croydon Roads. Subject to the proviso, we accept that the four level module is of a high architectural quality and is enhanced by the retention of the three buildings with greater heritage qualities. The very contemporary design approach is appropriate even allowing for the intended heritage controls for this activity centre. We accept that when standing on the opposite side of Union Road, the new 2/3 level street façade will largely screen out views of the 4th level behind. Hence it will be mainly oblique views of the proposed 4th level that will be visible.
   • In relation to the materials samples provided to us on the final hearing day, we are satisfied that the vertical aluminium rectangular hollow sections that are used as battening, powdercoated in a material which resembles wood grain, provides a suitable external appearance, and is a practical solution with regards to weathering. The sample of this material provided, convinced us that this would avoid the problem of real wood weathering and then fading. It is a positive design feature that these battons will be applied starting at the 1st floor level making it unlikely that anyone on the footpath would realise the battons are replica rather than real wood.
   • Subject to the proviso, we find these oblique views of the 4th level to be acceptable, given the high quality of the design, the sympathetic use of the vertical battons, the fact that the prominent street trees will in reality screen out some of these oblique views for at least part of the year, and acknowledging that the existing street facades in this activity centre include walls extending up to 2-3 modern stories high. Whilst it is true that the fourth level is much higher than most other dwellings along Croydon Road, this needs to be counter-balanced against the fact that this eastern end of Croydon Road intersects with an activity centre and land zoned Business 2.
   • We are satisfied (even allowing for the heritage issues) that the proposed "feature clock" is an appropriate and respectful design feature. However, we would query the details of its night time illumination, and have included an additional permit condition requiring that further details of the operation of the clock be provided as part of the updated plan information put forward for endorsement.
4. The proviso is as follows. Having considered the situation since the hearing, we find that the more scaled-back treatment of the northern end of the 4 level building module (as shown in the concept plans tabled on the final hearing day, Drawing A12001-VC 103) will be a suitable treatment to this end of this module. This scaled-back approach involves more conventional and smaller north-facing balconies projecting off the vertical batton treatment, which has been scaled back approximately 3.7 metres from its original position. We see this revised treatment of the northern end of the four level module as still attractive, but visually recessive when viewed from Croydon Road or when viewed obliquely from Union Road. Hence we will be supporting the adoption of this design modification.
5. To the extent that the Tribunal allowing the 4th level goes beyond the Council ACS document and Council's wish that there be a new overlay control imposing a new mandatory 3 storey height limit for this activity centre, we see the positive features of this revised fourth level as out-weighing this discrepancy and can only give modest weight to the ACS document for the reasons already spelt out. We are also mindful that it cannot be taken for granted that the Planning Minister will support mandatory height controls for this activity centre, given how much of the Victorian planning system now operates more with a performance-based orientation.

Tribunal's findings - will the proposal be an acceptable traffic and parking outcome?

1. By way of preliminary comment, even though this is a four level proposal where ResCode is not strictly applicable, we accept that there is a strong case for still utilising the ResCode approach to assessing the car parking requirements of the new units proposed here. For example, the recent Car Parking Advisory Committee Report has endorsed this approach.
2. Similarly, we accept that it is reasonable for the Tribunal to place substantial weight more on the anticipated actual parking demands of the new shops and restaurant having regard to empirical evidence, rather than slavishly applying the parking formulas set out in Clause 52.06 of the Planning Scheme. In relation to retail/restaurant uses, these formulas have been in place for many years and many previous Tribunal decisions have accepted that significant weight needs to be given to the anticipated actual parking demands, based on the assessment of other like projects.
3. Following this approach, we accept the expert parking analysis of Mr Walsh that the overall likely parking shortfall of the proposal is quite modest ie between 4 and 6 parking spaces, depending on the time of day. Mr Walsh is a very experienced traffic witness and we accept that his evidence was credible.
4. We see it as an acceptable planning outcome that this type of quite modest parking dispensation is allowed, in an activity centre location where most of the nearby on-street parking is time-restricted and Council has advised that it will not be issuing the occupants of this project any resident-parking permits.
5. Some other positive factors here for the proposal are that:
   • We expect many future occupants of the new building will find it very tempting to use the nearby fixed rail public transport for much of their travel needs (particularly weekday commuting).
   • The traffic survey work done by Mr Walsh indicates that whilst there are substantial on-street parking demands in the local street network, there is still some degree of available on-street parking (which was our experience in visiting the site).
   • The need for the New Litho printing business to re-locate should free up a substantial number of parking spaces in this general area. At page 10 of Mr Walsh's report he indicates that of the 59 New Litho staff, he expects 39 to drive to work. Whilst we accept most of these workers would not park in Croydon Road given the time limits involved, common sense suggests that these workers must be parking somewhere within walking distance and that these parking spaces will then be freed up once New Litho re-locates.
6. Finally, we make the observation that, consistent with the Tribunal's comments in its Interim Decision for the 140-148 Union Road site, much of the concerns raised over this 23 and 24 April hearing about existing parking pressures lacks a direct connection with the likely visitor parking demands arising from this particular development. To the extent for example that there are currently problems with on-street parking during school drop offs or pick ups, or with the current garbage collection arrangements or recalcitrant drivers parking in front of crossovers in Croydon Road, these pressures in our view are not particularly changed by the likely visitor parking for this proposal. We also note from our site inspections that most dwellings further west along Croydon Road appear to have their own off-street car parking.
7. In relation to the likely additional traffic movements arising from the proposal and the design of the car park, we are satisfied that the local street network can accommodate the extra traffic and (with one proviso) that the revised design of the two basement levels as set out in Appendix B of Mr Walsh's report are a worthy outcome. The proviso is that we will be requiring in the permit conditions that a Security Management Plan be prepared, to ensure there is a reasonable balance kept between after hours access to the basement for restaurant patrons vis-à-vis protecting the after hours privacy/safety of occupants of the dwellings in the new building.

1. In relation to heritage issues, we accept the evidence of the expert heritage witness Mr Raworth that the retention of the facades of the three relevant buildings is a good heritage outcome, and that there is no heritage problem with the buildings on the other three lots being demolished. This "keep three facades, and demolish the other three" approach is consistent with the relevant heritage information set out in the draft Amendment C148 document, which shows three of the lots as involving "contributory" buildings and the other three to be "non-contributory".
2. At a general level, we are pleased to see the revised design taking a sensitive rather than a confrontational approach to these heritage issues, given that the local heritage controls appear to be on the way but are not yet in place for this activity centre. There is no doubt that the overall revised design is much the better for the retention of the three contributory period facades. In addition Mr Raworth confirmed that the original fabric will be retained for a depth of about 8 metres back from the façade ie about one room's depth.
3. With respect to issues of "borrowed light" with the new units, we endorse the planning evidence of Mr Kelderman that the situation is acceptable with all new dwellings apart from Units 111 and 211, where a permit condition will require these two unit layouts to be improved.
4. In relation to the western façade of the three level module, we will be requiring in the permit conditions that there be some degree of improvement to the presentation of the ground floor/basement levels of this façade to the laneway and the adjacent dwelling, which is in fact a vertical freestanding wall, be converted from "concrete/ cement render" as shown on Drawing A12001-VC 302, to "brick". With this improvement, we are satisfied that the height and scale of this three level module is in order. Where there is minor non-compliance with the relevant B17 ResCode setback Standard, the breach in our view is of little practical consequence and see the Objective as still being met.
5. Where the concept plans tabled on the final hearing day (Drawing A 12001-VC 104) include internal layout changes to provide for more generous lift lobby areas, we see these changes as very positive and have required by way of permit condition that these changes be incorporated into the final plans put forward for endorsement.
6. With respect to the day to day operation of the proposed restaurant, we have considered the amenity concerns raised about same by Ms Longmuir in particular. With reference to the expert planning evidence of Mr Kelderman on this issue, we see the situation here as reasonable, for three reasons. First, the operation of a restaurant per se should not come as a great surprise in an activity centre. In our experience with other activity centres, it is fairly common for restaurants or cafes to locate either facing the main road or just around the corner. Second, we accept that the Applicant has suitably responded to this concern by agreeing to a new Acoustic Report needing to be prepared (see Condition 3 in the Appendix hereto). Third, we accept that the proposed permit condition setting an 11 pm closing time for the restaurant is in order - this seems consistent with our experience of the closing time of other like restaurants. We note that no liquor licence has been applied for at this stage for this restaurant and any such licence will involve its own rigorous approval process.
7. In relation to the need to prepare the new Acoustic Report, building on the precedent permit condition used in the recent Dimmeys planning application/VCAT proceedings[1], Condition 3 in the Appendix requires this report to review and deal with the potential noise impacts in relation to both the new restaurant and the adjoining fixed rail line. With respect to the former, we have worded the condition to in particular require the report to consider practical steps to reduce any noise impacts after 9 pm caused by the restaurant. While we are content for this to be a secondary consent process, our initial impression is that closing off the two north-facing windows in the period brick wall is worth considering after 9 pm, as is closing the partition walls between the open dining area and the internal courtyard. At the 26 April hearing the concept plans tabled Drawing A 12001-VC 104 included some potential sliding roof panels that could cover some of this open dining area after 9 pm. As it is less clear to us whether these apparently very expensive folding panels are warranted, we are content for this to be resolved with Council at a later stage, with suitable expert input and when all relevant information is available.
8. Whilst the proceeding has involved some other points of dispute such as matters of design detail, we are satisfied that these other points are sufficiently peripheral as to not require specific comment. Suffice to say that we are content that with any other such minor matters, the proposal is either acceptable "as is" or these minor concerns can be readily dealt with in the final version of the permit conditions in the Appendix hereto.

1. In conclusion, we share the misgivings of Council and the objectors about the original plans for the redevelopment of this site. However we consider the Orbit Architecture revised plans to be of a high standard and to have successfully responded to the challenges posed by this site. As with the 140-148 Union Road proceeding, we would hope all stakeholders including the neighbours feel that the Tribunal review process has been thorough and we see some valuable design improvements as having come out of it.

1. Before the development starts, amended plans must be submitted to the satisfaction of the Responsible Authority. When the plans are to the satisfaction of the Responsible Authority they will be endorsed and will then form part of the Permit. The plans must be drawn to scale with dimensions and three (3) copies provided, substantially in accordance with the plans substituted at the Tribunal hearing commencing 23 April 2012 (Job No. A12001, Drawing Nos. A12001_VC221, A12001_VC222, A12001_VC223, A12001_VC224, A12001_VC225, A12001_VC226, A12001_VC227, A12001_VC301, A12001_VC302, A12001_VC303, A12001_VC351, A12001_VC352, A12001_VC353, A12001_VC354, A12001_VC401 and A12001_VC402, dated 8 March 2012, prepared by Orbit Architecture) but modified to show:

(a) A notation confirming a maximum of 80 seats available to the public for the restaurant.

(b) Fully dimensioned and annotated internal-east and internal-west elevations. Any blank walls should be well articulated and treated broadly in the same manner as the outside walls. This must include further details of the proposed privacy screens on the internal-west elevation, fully dimensioned, at a scale of 1:20, including a section.

(c) An additional notation on the relevant architectural plan(s) indicating how the new clock on the south-east corner façade of the building will operate in practice.

(d) Further details of the proposed battened privacy screen, fully dimensioned, at a scale of 1:20, including a section.

(e) Deletion of the pedestrian bridge-link between the east and west cores of the building.

(f) Further details of security gate locations and treatments at the southern and eastern end of the open courtyard area between the two building modules, including "after hours" access by security card or like arrangement. The gates should have a contemporary open profile treatment, possibly in black rectangular iron bar configuration, to compliment the proposed architectural treatments to the satisfaction of the Responsible Authority.

(g) Any changes required by the approved Acoustic Report to be prepared pursuant to Condition 3 below.

(h) The internal layout of Dwellings 111 and 211 modified so as to minimise as far as practicable the reliance in the bedroom area on borrowed light.

(i) The dimensioned setback from the proposed awnings to the face of kerb.

(j) A door providing access between Shop 7 and the court yard/square.

(k) A door providing access between Office 4 and the court yard/square.

(l) Disabled access into the shops and offices from the court yard/square for those premises with direct access to the court yard/square, including details of ramp grades.

(m) In relation to the waste collection areas facing the laneway, a notation must be added on the relevant architectural plan(s) confirming that there must be no permanent storage of garbage bins in this collection area facing the laneway.

(n) Different treatment of the ground and basement levels of the western façade of the three level module such as brick, so as to add greater visual interest to same. This treatment should if practicable also incorporate graffiti-resistant finishes or materials.

(o) Any modifications necessary due to the requirements of the approved landscaping plan pursuant to Condition 13 below.

(p) The eastern wall of Office 3 to align with the title boundary on the ground, first and second floors (with the relevant ground floor external door to be inset appropriately so as to avoid opening into the footpath area).

(q) Any requirements or modifications recommended within the ESD report required by Condition 31 of this Permit.

(r) The revised internal configuration changes for the lift lobby areas, generally as shown in the Concept Plans (Drawing A12001-VC 104) marked up with "red clouds" which were tabled by the Applicant on the afternoon of 26 April 2012, being the final hearing day of the P63/2012 VCAT proceeding ("Concept Plans").

(s) The revised treatment of the vertical batten screen to the Croydon Road façade of the eastern four level building module, where the balconies have been reduced in size and project through this repositioned battened screen, generally as shown in the Concept Plans (Drawing A12001-VC 103), including the associated changes to the façade of this building and additional sun protection for the adjacent north-facing rooms.

(t) An additional notation shown on the eastern elevation plan, in relation to the period façade facing Union Road where the front upper verandah is being reinstated, to make it clearer what works are involved and how the modified front façade will then operate.

(u) The provision of a schedule of materials showing the proposed palette of materials and finishes (including samples of the proposed battened facade treatment and clock materials) selected for all sides of the building, generally in accordance with the revised Orbit architecture plans and the materials simples discussed at the 26 April 2012 VCAT P63/2012 hearing.

(v) The accessway, basement and sub-basement car park layout substantially in accordance with the Plans at Appendix B (Ref.: Job No. A12001, Drawings: A12001_VC221, A12001_VC231 and A12001_VC232, all Revision A, dated 4 April 2012, prepared by Orbit Architecture) of the Evidence prepared by Jason Walsh, Traffix Group, dated 5 April 2012 with the following further changes:

• (i) modifications as necessary to satisfy the requirements of Melbourne Water;
• (ii) a 1.0m extension to the blind aisle to allow vehicles to exit the end bays (spaces #70 and #85) to the satisfaction of the Responsible Authority. It is recommended that the width of parking spaces #69, 70, 84 and 85 be amended to 2.6m, to allow a 0.8m extension to the blind aisle;
• (iii) the 24 proposed customer/visitor car spaces to be located within the Basement Level to the satisfaction of the Responsible Authority;
• (iv) the capacity of the stormwater tank/s and a notation that rainwater harvested on the site will be reused for the retail/commercial toilets and for irrigation of the planter boxes located on the ground floor;
• (v) the location of the relocated street electrical pole to the satisfaction of the Responsible Authority;
• (vi) the dimensioned width of the vehicle crossing to Sunbury Crescent;
• (vii) the provision of six (6) bicycle parking spaces for use by employees and visitors, within the ground floor courtyard/square, in addition to the 19 spaces provided within the basement;
• (viii) the provision of one (1) shower and change room for the use of shop, restaurant and office employees;
• (ix) a notation that redundant crossovers will be reinstated with footpath, kerb and channel to the satisfaction of the Responsible Authority;
• (x) further details of any device/s to control access to the basement car park, including garage doors and intercom systems to the satisfaction of the Responsible Authority.

Layout of Buildings and Uses not to be Altered/Maintenance of Buildings and Works

1. (a) The layout of the site and the size, levels, design and location of buildings and works and the description of the uses on the endorsed plans must not be modified for any reason without the prior written consent of the Responsible Authority.

(b) All buildings and works must be maintained in good order and appearance to the satisfaction of the Responsible Authority.

1. (a) Prior to the commencement of the development permitted by this permit, the owner/permit holder must comply with the following acoustical requirements.

(b) Before any plans are endorsed pursuant to Condition 1 hereof, an acoustic report prepared by a suitably qualified acoustic engineer must be submitted to and approved by the Responsible Authority. The report must prescribe the form of acoustic treatment to:

• minimise as far as practicable the after hours noise impacts of the restaurant approved by this permit, notably how the restaurant might impact after hours upon the nearest upper level dwellings also approved by this permit. This aspect of the report must in particular deal with what measures will be taken to reduce any noise impacts from the restaurant after 9 pm, such as potentially closing the two windows in the period brick north-facing external wall and also the petition-walls facing the internal courtyard. This report must also consider to the satisfaction of the Responsible Authority whether the type of sliding roof panels shown in the concept plans (Drawing A 12001-VC 104) tabled at the VCAT P63/2012 hearing on 26 April 2012 warrant being installed over at least part of the restaurant open dining area, to potentially close after 9 pm; and
• protect all dwellings occupants from external noise sources associated with the abutting rail system, to achieve an internal noise level of 50dBA Lmax in bedrooms and 60dBA Lmax in living rooms and to achieve internal structure-borne vibration induced noise levels not exceeding 40dBA in bedrooms and 50dBa in living rooms.

(c) Within two months of all of the permitted uses commencing, an updated acoustic report prepared by a suitably qualified acoustic consultant must be submitted to the satisfaction of the Responsible Authority demonstrating that the required level of noise attenuation has been achieved in accordance with condition 3(b) of this permit or, if not, what works must be undertaken to achieve the required levels of noise attenuation. If all of the relevant uses have not commenced by the date being 12 months after the commencement of the initial use, then an interim updated acoustic report must be prepared in the same manner as required in the preceding sentence. For the removal of any doubt, the preparation of any such interim updated acoustic report will not (unless the Responsible Authority agrees otherwise in writing) change the obligation that an updated acoustic report must be prepared once all of the permitted uses have commenced.

(d) The recommendations contained in the approved acoustic report or reports (as applicable) pursuant to Condition 3(b) and (c) must be implemented and completed and where the recommendations are of an ongoing nature, must be implemented and maintained, all to the satisfaction of the Responsible Authority.

1. The following minimum number of car spaces must be provided, allocated in accordance with the recommendation detailed within Table 4, page 9 of the Evidence prepared by Jason Walsh, Traffix Group (Reference: 14122vcat001a, dated 5 April 2012):
   • (a) 35 for dwelling residents;
   • (b) 14 for office staff;
   • (c) 5 for the restaurant staff;
   • (d) 7 for shop staff; and
   • (e) 24 for visitors.

These numbers may only be varied with the prior written approval and to the satisfaction of the Responsible Authority.

1. No polluted and / or sediment laden runoff is to be discharged directly or indirectly into Melbourne Water's drains or watercourses
2. The building must be constructed with finished floor levels a minimum of 300mm above the applicable grading flood level.
3. The entry / exit driveway of the basement car park must incorporate a flood proof apex of a minimum of 300mm above the applicable grading flood level.
4. All doors, windows, staircases, drainage outlets, vents and openings to the basement car park must be set no lower than 300mm above the applicable grading flood level.
5. The building/structure including footings, eaves etc must be set outside any easement or a minimum 1.5 metre laterally clear of the outside edge of the Melbourne Water main drain, whichever is greater.
6. Prior to the development plans being endorsed and the commencement of works, amended plans must be submitted to Council and Melbourne Water addressing Melbourne Water's conditions. Plans must be submitted with ground and floor levels to Australian Height Datum (AHD).
7. Prior to the issue of a Certificate of Occupancy, a certified survey plan, showing finished floor levels (as constructed) reduced to the Australian Height Datum, must be submitted to Melbourne Water to demonstrate that the floor levels have been constructed in accordance with Melbourne Water's requirements.
8. Prior to the commencement of works, a separate application direct to Melbourne Water must be made for any new or modified storm water connection to Melbourne Water's drains or watercourses.

1. Concurrent with the endorsement of the plans referred to in Condition 1 of this permit, a landscape plan generally in accordance with the plan prepared by John Patrick consultants dated March 2012, but incorporating:
   • (a) an accurate survey of all existing vegetation to be removed and retained and other natural features;
   • (b) the area(s) set aside for landscaping, including (where space is available) wall planting as part of the western facade;
   • (c) a schedule of all proposed planting, including within planter boxes, which will include the location, number, size at the time of planting, height and spread at maturity of all plants, the botanical names of such plants and the location of all areas to be covered by grass, lawn or other surface material as specified;

(d) paving, retaining walls and other landscape works including areas of cut and fill and finished site levels;

(e) the soil depth of planter boxes;

(f) the use of drought-tolerant plant species; and

(g) irrigation of the court yard/square planter boxes using rainwater harvested on-site;

must be submitted to the satisfaction of the Responsible Authority. When the landscape plan is to the satisfaction of the Responsible Authority it will be endorsed and will form part of this Permit.

1. Landscaping as shown on the endorsed landscape plan must be carried out and completed to the satisfaction of the Responsible Authority prior to the occupation of the development.

1. All landscaping works shown on the endorsed landscape plans must be maintained and any dead, diseased or damaged plant replaced, all to the satisfaction of the Responsible Authority.

1. Prior to the commencement of the development, a Waste Management Plan must be submitted to the Responsible Authority for approval. Such Plan must provide details of a regular garbage and recyclables collection service, including information regarding the type of refuse bin/s, type/size of trucks, means of accessing bins and frequency of refuse collection, to the satisfaction of the Responsible Authority. Once approved, such Plan must be implemented and complied with at all times to the satisfaction of the Responsible Authority.

1. (a) Collection of waste must be conducted so as not to cause any disturbance to nearby residential properties and may only occur between the hours of 7:00am to 7:00pm Monday to Friday to the satisfaction of the Responsible Authority.

(b) In relation to the waste collection area facing the laneway, there must be no permanent storage of garbage bins in this collection area.

1. Prior to the commencement of construction of the buildings and works hereby approved:
   • (a) A certificate of environmental audit must be issued for the land in accordance with Part IXD of the Environment Protection Act 1970; or
   • (b) An environmental auditor appointed under the Environment Protection Act 1970 must make a statement in accordance with Part IXD of that Act that the environmental conditions of the land are suitable for a sensitive use.
2. Notwithstanding the provisions of Condition 18 the following works can be carried out before a Statement of Environmental Audit or a Certificate of Environmental Audit is provided to the Responsible Authority under Condition 18:
   • (a) Buildings and works that necessarily form part of the Environmental Audit process; and
   • (b) Buildings and works that the Environmental Auditor engaged by the owners advised must be carried out before a Statement or Certificate of Environmental Audit can be issued.

These works must be carried out in accordance with the works plan approved by the Environmental Auditor engaged by the owner. A copy of the works plan must be provided to the Responsible Authority before the commencement of the buildings and works for the purposes of this condition.

1. Before the construction of the building hereby approved commences, a copy of the certificate of environmental audit and/or statement, and the complete audit report and audit area plan must be submitted to the Responsible Authority.
2. The development and use allowed by this permit must comply with the directions and conditions of any statement of environmental audit issued for the land.
3. Prior to the occupation of the dwellings, a letter must be submitted to the Responsible Authority by an Environmental Auditor accredited with the EPA, to advise that all construction and remediation works necessary and required by an environmental audit or statement have been carried out.
4. Any handling and disposal of contaminated site soil must be in accordance with the requirements of any statement of environmental audit issued for the land, the requirements of the Environment Protection Authority and the Environment Protection Act 1970.

Driveways and Car Parking areas to be constructed

1. Before the use starts the areas set aside for car parking, access lanes and driveways shown on the endorsed plans must be:
   • (a) constructed;
   • (b) formed to such levels and properly drained so that they can be used in accordance with the endorsed plans;
   • (c) surfaced with an all weather seal coat;
   • (d) line-marked to indicate each car space and clearly marked to show the direction of traffic along the access lanes and driveways; and
   • (e) drained;

1. Car spaces, access lanes and driveways shown on the endorsed plan must not be used for any other purpose and may be used by occupants of or visitors to the site to the satisfaction of the Responsible Authority.

1. The areas set aside for car parking shown on the endorsed plans must be made available for use free of charge to residents, employees and visitors at all times and must not be used for any other purpose.

1. All outdoor lighting of publicly accessible areas must be designed, baffled and located to prevent light from the site causing any detriment to the locality, to the satisfaction of the Responsible Authority.

1. All pipes (except down-pipes), fixtures, fittings and vents servicing any building on the site must be concealed in service ducts or otherwise hidden from external view to the satisfaction of the Responsible Authority.

1. Any new vehicle crossover or modification to an existing vehicle crossover must be constructed to the satisfaction of the Responsible Authority.

1. All disused or redundant vehicle crossovers must be removed and the area reinstated with footpath, kerb and channel to the satisfaction of the Responsible Authority.

1. Concurrent with the endorsement of any plans pursuant to Condition 1, an Environmentally Sustainable Design (ESD) Report which is to the satisfaction of the Responsible Authority must be prepared by a suitably qualified expert and submitted to the Responsible Authority for approval. The report must address ESD principles proposed for the site including, but not limited to, energy efficiency, stormwater collection and re-use on the site and waste and building materials. Any recommended changes to the building must be incorporated into the plans required by Condition 1. Once approved, such a plan must be implemented prior to the occupation of the dwellings to the satisfaction of the Responsible Authority.

1. Prior to the commencement of buildings and works, the owner must submit a Construction Management Plan to the Responsible Authority for approval. No works are permitted to occur until the Plan has been approved in writing by the Responsible Authority. Once approved, the Construction Management Plan must be implemented to the satisfaction of the Responsible Authority. The Plan must provide details of the following:
   • (a) measures to ensure that construction workers, including sub-contractors and tradespersons operating on the site are aware of the trees to be retained;
   • (b) hours for construction activity (including demolition) in accordance with the requirements of Condition 33;
   • (c) measures to control noise, dust, water and sediment laden runoff;
   • (d) the location and design of a vehicle wash-down bay for construction vehicles on the site or other measures to the satisfaction of the Responsible Authority to ensure there is no unreasonable sediment build up on the surrounding road network;
   • (e) the location of parking areas for construction and sub-contractors' vehicles, to ensure that vehicles associated with construction activity cause minimum disruption to surrounding premises and traffic flows, with any basement car park on the land being made available without delay for use by sub-contractors/tradespersons upon completion of such basement car park areas;
   • (f) measures to ensure that sub-contractors/tradespersons operating on the site are aware of the contents of the Construction Management Plan;
   • (g) contact details of key construction site staff;
   • (h) the location of any site sheds and the like; and
   • (i) any other relevant matters.

1. All buildings and works activity associated with the approved development is to be limited to the following hours, unless with the prior written consent of the Responsible Authority:

1. The restaurant use allowed under this permit may operate only during the following hours, except with the prior written consent of the Responsible Authority:

1. Not more than 80 seats are to be made available at any one time to patrons of the restaurant (both indoor and outdoor seating) without the prior written consent of the Responsible Authority.

Hours for deliveries and loading/unloading (restaurant and shop premises)

1. Loading and unloading of vehicles and deliveries to the restaurant and shop premises must be conducted so as to not cause any unreasonable disturbance to nearby residential properties and is only permitted to occur at the following times:

Saturday, Sunday & Public Holidays: 9:00am to 5:00pm

to the satisfaction of the Responsible Authority. Newspaper deliveries may take place outside these hours.

1. Prior to the occupation of the building, a Clock Management Plan must be submitted to the Responsible Authority for approval. The building is not permitted to be occupied until the Plan has been approved in writing by the Responsible Authority. Once approved, the Clock Management Plan must be implemented to the satisfaction of the Responsible Authority. The Plan must provide details of the ongoing management, operation and maintenance of the clock on the southern facade of the building.

1. The amenity of the area must not be adversely affected by the use or development as a result of:
   • (a) transport of materials, goods or commodities to or from the land;
   • (b) appearance of any building, works, stored goods or materials;
   • (c) emission of noise, artificial light, vibration, smell, fumes, smoke, steam, soot, ash, dust, waste water, waste products or oil; or
   • (d) the presence of vermin;

1. Before the commencement of any of the uses permitted by this permit, the permit holder must prepare a Security Management Plan to the satisfaction of the Responsible Authority. Once approved, it will form part of this permit. This plan must (unless otherwise permitted in writing by the Responsible Authority) provide for the following:
   • The gate at the southern entrance to the pedestrian walkway between the two building modules ("walkway") must be locked daily at 6 pm, and thereafter only accessible by those relevant shop/office/restaurant/ maintenance staff or residential occupants allocated a security pass.
   • The gate at the eastern end of the walkway will be locked daily at 9.00 pm, subject to the same arrangements as set out above.
   • After 9 pm on a daily basis, any patrons of the restaurant wishing to gain access to the restaurant from the public realm must do so using the external door into the restaurant located near the north-east corner of the building.
   • After 9 pm any restaurant patrons must as necessary be able to use a lift (or the stairs in the event of a lift mal-function) to gain access to their car parked in a basement visitor space, and then be able to drive out the basement vehicle entry/exit ramp to Sunbury Crescent. However the security for the lifts and the stairs leading up to the residential units above must be designed so that after 9.00 pm only relevant residential owners/occupiers or maintenance staff can access these three higher levels using a security pass. Similarly the security for the basement car park entrance door must be designed so that vehicles can only enter the car park after 9.00 pm using a security pass.

1. This Permit will expire if:
   • (a) The development does not start within two (2) years of the issue date of this Permit; or
   • (b) The development is not completed within four (4) years of the issue 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.

[1] See Richmond Icon Pty Ltd v Yarra CC (Red dot) [2011] VCAT 2175