Tenman Pty Ltd, Director of Housing - Department of Health and Human Services, John Hamilton Buckley, Margaret McLean, Avil Cooke, Bryan Robert Molyneaux, Natalie Faye Molyneaux, Jane Ginberg, Peter Seymour, Murray McLean, Jennifer Button, Noel Saville

Victoria House Nominees Pty Ltd v Stonnington CC [2016] VCAT 2

1. Pursuant to section 127 and clause 64 of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998, the permit application is amended by substituting for the permit application plans, the following plans filed with the Tribunal:

TP0.00/C, TP1.01/C, TP1.02/C, TP1.03/C, TP1.04/C, TP1.05/C, TP1.06/C, TP1.07/C, TP1.08/C, TP1.09/C, TP1.10/C, TP2.01/C, TP2.02/C, TP3.01/C, TP3.02/C, TP3.03/C, TP3.04/B, TP3.05/A, TP4.01 to TP4.07/C, TPA.00, TPA.01/B, TPA.02/B, TPA.03/B, TPA.04/B, TPA.05/B, TPA.06/B, TPA.07B, TPA.08/B, TPA.09/B, TPA.10/B, TPA.11/A, TPA.12/A, TPA.13/A, TPA.14/A, TPM.02/B, TPM.03/B, TPM.04/B, TPM.05/B, TPM.06/B, TPM.07/B, TPM.08/B, TPM.09/B, TPM.10/B,TPM.11/A, TPM.12/A TPM.13/A, TPM.14/A, TPT.01/B, TPT.02/B, TPT.03/A and TPT.04 to TPT.08.

1. The decision of the Responsible Authority is set aside.
2. In permit application 0388/14 a permit is granted and directed to be issued for the land at 310-324 Malvern Road and 99 Bendigo Street, Prahran in accordance with the endorsed plans and on the conditions set out in Appendix A. The permit allows:
   • Use and development of the land for a hospital and medical centre, construction of multi dwelling buildings in a Mixed Use Zone, General Residential Zone 12, Incorporated Plan Overlay and Special Building Overlay, reduction in car parking requirement pursuant to Clause 52.06 and alteration of access to a Road Zone, Category1 pursuant to Clause 52.29.

Mr Jeremy Gobbo, QC and Ms Jane Sharp, Barrister instructed by Mr Mark Naughton of Property Partners Pty Ltd. They called evidence from the following witnesses:

• Mr Mark Sheppard, Urban Designer of David Lock Associates (Australia) Pty Ltd.
• Mr Stuart McGurn, Town Planner of Urbis Pty Ltd.
• Mr John Kiriakidis, Traffic Engineer of GTA Consultants.
• Mr Tim Vernon, Landscape Architect of CDA Design Group Pty Ltd.

Photomontages were also provided by Ms Sam Slicer of Floodslicer Pty Ltd but in the absence of issues raised by parties or the Tribunal she was not required to attend the hearing.

Mr Terry Montebello, Solicitor of Maddocks Lawyers.

Photomontages were also provided by Mr Stephen Schutt of Hansen Partnership Pty Ltd but in the absence of issues raised by parties or the Tribunal he was not required to attend the hearing.

Ms Jane Ginberg, Ms Avil Cooke, Ms Jennifer Button, Mr Bryan Molyneaux, Mr Peter Seymour, Mr Noel Saville, Ms Margaret McLean, Mr G Ripper for Mr John Buckley, Ms Natalie Molyneaux.

The development has three main components. A 6 storey mixed use building on Malvern Road containing a medical facility, ground floor retail floor space and 15 dwellings. A 6 storey apartment building containing 89 dwellings. Eighteen two and three storey town houses are located at the southern end of the site. Total of 112 dwellings. Two levels of basement provide parking for 215 vehicles and ancillary facilities.

Application under Section 77 of the Planning and Environment Act 1987 to review the refusal to grant a permit.

Cl. 32.04-2 (use of land as a medical centre over 250m2 in area and hospital in MUZ).

Cl. 32.04-8 (construct a building or construct or carry out works for a section 2 use in MUZ).

Cl. 32.08-1 (use land as a medical centre over 250m2 in area in GRZ12).

Cl. 32.08-4 (construct two or more dwellings on a lot in GRZ12).

Cl. 32.08-6 (construct a building or construct or carry out works for a section 2 use in GRZ12).

Cl. 43.03 (construct a building or construct or carry out works before an incorporated plan has been incorporated into this scheme in IPO).

Cl. 44.05-1 (construct a building or construct or carry out works in SBO).

Cl. 52.06 (reduce the number of car parking spaces).

Cl. 52.29 (create or alter access to a road in a Road Zone, Category 1).

Clauses 9, 10, 11, 15, 16, 18, 21.02, 21.03, 21.04, 21.05, 21.06, 21.08, 22.05, 22.23, 52.06, 52.29, 52.34, 55 and 65.

The review site is irregular in shape but is effectively two rectangles joined to form an 'L'. It has a 31.86 metre frontage to Malvern Road, a frontage to Bendigo Street of 33.45 metres and an overall area of 5,946 square metres.

The site is currently occupied and used by the Victoria Medical Centre which includes Victoria House Imaging and Healthscope's Victoria Clinic Psychiatric Hospital. Two double storey buildings occupy the western half of the Malvern Road frontage with part single/part double storey buildings behind extending almost the whole distance to the southern boundary. The eastern half of the Malvern Road frontage is a driveway leading to ground level car parking along the eastern side of the site and for the whole of the 'L' orientated to Bendigo Street. The car park is entered from Malvern Road and exited via Bendigo Street.

We undertook an accompanied inspection of the review site, adjoining properties in Bendigo Street and Bella Street and the locality on the afternoon of the second day of hearing.

1. The permit application seeks approval for a large mixed use development that can best be described as comprising three components across the very large site in Prahran.
2. Component one involves the construction of a six storey mixed use building fronting Malvern Road containing a medical facility for 24 practitioners and 9 day procedure beds. It also includes ground floor retail floor space of 183 square metres. The two top levels contain 15 dwellings.
3. The second component involves a six storey apartment building physically attached to the mixed use building but without a pedestrian connection. It occupies the central part of the site and contains 89 dwellings.
4. The third component comprises 18 two and three storey town house style dwellings located at the southern end of the site.
5. Dwellings total 112 across the whole site and two levels of basement provide parking for 215 vehicles, along with storage areas, bicycle parking and services. Vehicle access is from Malvern Road.
6. Council originally refused the application on nine grounds but as result of the circulation of amended plans has revised those to the following:
   • The proposed development, by virtue of its excessive building height, scale, massing and setbacks, constitutes an overdevelopment of the land that does not respect the existing or preferred character of the area.
   • The proposal will adversely impact on the landscape character of this area and fails to provide an appropriate landscape response.
   • The proposal will have unreasonable amenity impacts to neighbouring residential properties by way of visual bulk and overshadowing of open space.
   • The proposal fails to incorporate suitable communal open space.
   • The proposal is at odds with the provisions of Clause 52.06 of the Stonnington Planning Scheme as it fails to provide sufficient car parking to the proposed medical building.
   • A number of Environmentally Sustainable Design issues remain unresolved.
7. Eleven statements of grounds were received from neighbours wishing to attend the hearing to make submissions opposing the application and offering support for Council's refusal.
8. Prior to the hearing the Tribunal received an email from the owner of the older apartment style building abutting the southern Bendigo Street boundary. The email stated that they now withdrew their objection to the proposal on the basis of the amended plans and agreement that a permit condition be included to limit pedestrian access to the north-south walkway adjacent the central apartment building. The remaining ten neighbours attended the hearing on one or more days and made submissions explaining why they opposed the proposal.
9. In addition, three Referral Authorities and the Department of Health and Human Services are parties but have advised that they do not object to the proposal.

WHAT ARE THE CENTRAL ISSUES REQUIRING OUR CONSIDERATION?

1. Based on the material accompanying the application, together with submissions and evidence presented at the hearing, we consider that four central issues or questions require consideration.
   1. What does the Planning Scheme say about future development in this part of the municipality?
   2. Are the proposed buildings too tall, too bulky and an unacceptable response to the site context?
   3. Are off-site amenity impacts to the south and east within acceptable limits?
   4. Are there any other aspects of the proposal which are unacceptable?
2. We now discuss each of these in turn.

WHAT DOES THE PLANNING SCHEME SAY ABOUT FUTURE DEVELOPMENT IN THIS PART OF THE MUNICIPALITY?

1. Plan Melbourne_[2]_ is projecting that Melbourne will require an extra 1.57 million dwellings by 2051 and that up to two thirds of those will be provided within established areas. The focus of this growth is in defined residential change areas which relevantly include metropolitan activity centres (existing and future) and activity centres.[3] It identifies such centres as key areas to accommodate higher density housing by delivering housing close to jobs and transport. The Prahran/South Yarra Activity Centre is one such activity centre and is within the Central Subregion. Structure plans will be required to enable housing and job growth, and will need to demonstrate how the municipality will deliver a greater diversity of housing, attract more jobs and help deliver the 20-minute neighbourhood.[4]
2. State policies in the Planning Scheme also support the intensification of development on well-located sites including encouraging a diversity of housing types at higher densities in and around activity centres.[5] They include policies aimed at increasing the proportion of housing in Metropolitan Melbourne to be developed within the established urban area, reducing the share of new dwellings in greenfield and dispersed development areas, increasing housing supply near services and public transport, facilitating increased housing yield in appropriate locations including under-utilised urban land, facilitating social and affordable housing and encouraging higher density housing development on well-located sites. The review site is also a strategic redevelopment site when assessed against the six criteria listed in Clause 16.01-3.
3. State policies also seek to achieve high quality urban design and architecture that contributes positively to local urban character and sense of place, require development to respond to its site context in terms of urban character, cultural heritage, natural features, surrounding landscape and climate, and protect Melbourne and its suburbs from inappropriate development.
4. Local policies flesh out the broader metropolitan and State level policies and provide more focussed guidance about outcomes being sought for different parts of the municipality. Council's vision is set out in Clause 21.03. The Strategic Framework Plan is described at Clause 21.03-3 as including an activity centre hierarchy and mixed use areas where higher density housing and a variety of commercial activities are encouraged. Under the heading Housing it states:
   • Preferred locations for higher density housing, being land:
     • in and beside activity centres and in mixed use areas: and
     • abutting the Principal Public Transport Network (ie. tram and priority bus routes and railway stations).
5. Local policy for activity centres is at Clause 21.04-1 and it sets out a hierarchy of centres across the municipality. Chadstone and the South Yarra, Prahran, Windsor Principal Activity Centres are at the top of the hierarchy as the only Group 1 centres. They are described as being a:

Regional centre with both local and regional roles accommodating larger scale retail uses, complementary entertainment uses and goods and services to meet everyday and specialty needs.

1. Implementation is to occur by taking into consideration any relevant Structure Plan. The Chapel Vision Structure Plan has been in existence for approximately 10 years but has now been replaced by the Chapel reVision Structure Plan 2013-2031.
2. In addition to the policy for activity centres, Clause 21.05-2 identifies locations for residential development. Three categories of change area are identified and the review site is within a substantial change area. The most relevant objective (Objective 1) seeks:

To direct the majority of new housing development to locations with the highest level of accessibility to both an Activity Centre and the Principal Public Transport Network, and away from the residential hinterland.

1. Related strategies for substantial change areas are:

1.1 Direct medium density housing and higher density housing to sites in the following locations as shown on the Strategic Framework Plan which forms part of Clause 21.03; being:

• land with immediate abuttal to a main road which is a tram or priority bus route;
• land beside or opposite a railway station which is also part of or in close proximity to an activity centre;
• land shown on the Strategic Framework Plan as a Principal, Major or Large Neighbourhood Activity Centre, and in accordance with any approved Structure Plan or Urban Design Framework;
• land in, beside or opposite a Small Neighbourhood Activity Centre, as shown on the Strategic Framework Plan (not including land opposite a rear laneway to the Small Neighbourhood Activity Centre);
• in a Mixed Use Zone as a free standing development or in the upper levels of a mixed use development,

• the location and scale of development meets the requirements of any adopted Structure Plan and Urban Design Framework;
• adequate service and infrastructure capacity will be available prior to or at least at the same time as new development;
• access arrangements onto main roads minimise conflicts of movements with vehicle traffic and public transport and do not introduce delays;
• ...

1. Higher density housing is to be in accordance with any approved Structure Plan. Chapel reVision Structure Plan 2013-2031 has been adopted by Council and is in the process of being implemented by way of Amendment C172. The Amendment is now with the Minister for Planning for his consideration and approval following an extensive statutory process.
2. The Amendment makes various changes to the planning scheme but the most far reaching change is rezoning most of the activity centre to the Activity Centre Zone 1 (ACZ1). That includes rezoning the review site from Mixed Use and General Residential Zone 12, and including all the land in Prahran Precinct 3. Each precinct is divided into sub-precincts. Except for a narrow strip of land facing Bendigo Street in Precinct PG-3, the vast majority of the review site is in PG-2. Except for the PG-3 area which has a 9 metre preferred maximum building height, the remainder of the site has a preferred maximum building height of 18 metres (5 storeys) and street wall of 12 metres (3 storeys).
3. The ACZ1 includes objectives, table of uses, design and development requirements and guidelines, precinct plan requirements and guidelines, application requirements, notice and review, decision guidelines, advertising signs and reference documents. We discuss the design and development and precinct plan requirements and guidelines, and decision guidelines, later in our reasons where we discuss height, bulk and off-site impacts.
4. At the hearing, Mr Saville submitted that we should not give any weight to Amendment C172. At the time, we provided parties with an extract of Section 60 of the Planning and Environment Act 1987. Section 60 (1) sets out the matters that must be considered by a Responsible Authority - or the Tribunal on review - and Section 60(1A) sets out what matters may be considered if the circumstances appear to require such consideration. Section (1A) (h) refers to any amendment which has been adopted by the planning authority but not yet approved by the Minister or a planning authority.
5. Although the Council, expert witnesses and the permit applicant all acknowledged the existing planning controls, their submissions and evidence primarily focussed on the provisions contained in Amendment C172. We agree with that approach whilst recognising that the weight given to an adopted amendment will vary depending on a number of factors. These include the extent to which the adopted amendment varies from what was considered and recommended upon by the Panel. In so far as the review site is concerned, we understand the adopted amendment is in the form recommended by the Panel, except that the recommendation to designate the review site as a Key Strategic Development Site has not been followed. It is our understanding that the designation makes no difference to the extent of development on the review site.[6]
6. Another reason we give weight to Amendment C172, is that the Mixed Use Zone and General Residential 12 Zone applying to the site do not provide any guidance about preferred built form outcomes being sought, such as preferred maximum heights, height of streets walls and upper level setbacks. Unless we take account of the proposals contained in Amendment C172 we are operating in a policy vacuum, at least in so far as understanding what future built form Council is anticipating for this part of the activity centre. We acknowledge that was not the case prior to the expiry of DDO7 and Clause 22.19 on 31 October 2015 and recognise that Council made its decision to refuse the application when those provisions were still in the Planning Scheme.
7. We have already made reference to the site being classified as a strategic redevelopment site in accordance with Clause 16.01-3. As noted above, the Precinct 3 Plan in ACZ1 also identifies the review site as a strategic response site. Although we are required to grant a permit in accordance with the existing zone provisions, there is no question in our minds that State and local planning policies, the Chapel reVision Structure Plan 2013-2031 and the proposals contained in Amendment C172, all unequivocally support redevelopment of the review site for a much more intensive and taller mixed use development than what currently exists on the site.
8. Importantly, the proposed provisions concerning height, setbacks and dimensions of balconies as they apply to the review site are not mandatory, so that there is an ability to consider variations from those non-mandatory provisions.
9. Although the proposed height and setback provisions provide guidance as to what might be a reasonable expectation about future built form, the review site is on the edge of the South Yarra, Prahran, Windsor Principal Activity Centre and built form needs to be tempered in recognition of the lower, less intensively developed and more traditional residential properties abutting to the south and east. We now discuss those built form and off-site impacts in the following sections of our reasons.

ARE THE BUILDINGS TOO TALL, TOO BULKY AND AN UNACCEPTABLE RESPONSE TO THE SITE CONTEXT?

1. The proposal as originally considered by Council was for three tall buildings down the length of the Malvern Road site with four triple storey town houses along the Bendigo Street frontage. It also retained vehicle access to Bendigo Street.
2. The amended proposal depicted on the substituted plans makes many changes to the original proposal. The two most significant are firstly the conversion of the southern 7 storey apartment building and 4 triple storey townhouses into two groups of 18 double and triple storey townhouses and secondly, the deletion of any vehicle access to Bendigo Street.
3. We consider these changes represent a significant improvement in how the development fits into its site context and in the visual and direct amenity impacts to neighbouring properties. In the following sections we discuss the major components of the proposal.
4. In our discussions about height, it is important to note that we exclude the roof top plant in our calculations. Although the elevations depict an expansive roof top enclosure 1.5 metres high, we were provided revised drawings during the hearing which show a much smaller area set aside for roof top plant and the enclosures lowered in height to 900mm.

1. At a height of 22.9 metres and 6 storeys, the medical mixed use building exceeds the ACZ1 preferred height of 18 metres and 5 storeys for Precinct PG-2. The street wall at 14 metres is also higher than the preferred height of 12 metres. However, it does achieve the preferred number of storeys (3), with the difference between height and storeys largely caused by the higher floor to floor heights of the three lower levels. These higher floor to floor heights are specifically encouraged by the ACZ1 provisions at Clauses 4.3-11 and 4.3-12.
2. Whilst it would be possible to remove one level to comply more closely with the preferred height and number of storeys, the robust site context along Malvern Road is such that we are not persuaded that any changes should be made to the height, setbacks or detailing of this building.
3. We recognise that this building will make an enormous difference to the outlook from the rear gardens of 125, and particularly 127 Bendigo Street. We discuss this further below. However, this change is largely a result of the adjacency of the activity centre zoning. The built form steps away from the east around six and a half metres at the third level, and another four metres on the level above. We note that the overshadowing of the rear open space of 127 Bendigo Street meets the ResCode standard. We consider that in terms of the amenity of the rear garden, the availability of sunlight is a more important consideration than the visual bulk presented by the Medical Building, which is of a form and height that is not unreasonable on a main road in an activity zone.
4. One aspect we do seek to change is the pedestrian entrance to the mid-block apartment building. Mr Vernon suggested setting back the entrance gate and providing a strip of vegetation along the eastern boundary in front of the gate. Whilst not a major change, we consider setting back the gate so that it corresponds to the point where the first floor level extends to the boundary will improve the appearance and better identify this pedestrian entrance point. The visitor bike racks will require relocation.

1. The mid-block apartment building we have described as component 2 is the most problematic aspect of the proposal because of the way in which it presents a long side-on view to the fine-grained residential properties in Bendigo Street to the east. The impact of this view is exacerbated by the small areas of open space at the rear of these properties.
2. As with the medical building it rises to 6 storeys but has a lower overall height of 19.6 metres because of the lower floor to floor heights. It is physically connected to the medical building by three levels of dwellings, although there is no pedestrian link between the two buildings with residents in the apartment building gaining access to a communal lobby and lift core via a walkway along the eastern side of the medical building.
3. One of the most significant changes made to the central apartment building in the substituted plans is the reduction in height of what were described as the 'shoulders' of the building. This reduces by two levels the height of the building at both the north and south ends, providing a consequential reduction in the extent of the building as it is viewed from the rear of the adjacent Bendigo Street properties.
4. Council asserts that not enough has been done to reduce the impact of the visual bulk of the building, despite the reduction in height from 7 to 6 storeys and the increases in setbacks. It says the impact on the neighbouring residential properties is unreasonable, a direct result of the built form and scale of the proposal. It identifies the combined effect of height and north-south extent as a principal concern. Council's urban design advisor was also concerned in his referral advice about the extent of the basement and its impact on the overall permeability of the site, and the ability to integrate 'meaningful in ground canopy treed landscape treatment'.
5. We agree with Council that a development of this size should provide an appropriate amount of communal open space and that the plans as substituted do not do so. We consider that further changes are necessary to produce an acceptable response to the site.
6. We have concluded that the apartment building should be contracted from both north and south, for a number of reasons. We acknowledge that the applicant has reduced the built form in the central section of the site, but it has not gone far enough. Reducing the bulk of the building by providing more space between it and both the medical building and the townhouses has a number of consequences. Firstly, as urged on the Tribunal by Mr Montebello, the creation of a meaningful gap between the medical building to the north, and increasing the setbacks from east and west as a consequence, will achieve tangible relief to the perception of both the properties in Bendigo Street, but also in views from further afield. Secondly, the change to the south will increase the open space available to all residents of the development.
7. Our conclusion is that these necessary improvements to the design can be achieved by creating an 8 metre setback from the medical building above ground level, replacing the two 2 bedroom dwellings with a single bedroom dwelling. Depending on the design resolution, this will result in a loss of two 2 bedroom dwellings on levels 1, 2 and 3. On level 1, for example, Dwellings 1.02 and 1.04 would be replaced by 1.03. In addition, at level 4 there will be a reduction in the size of the communal terrace. In view of our overall concern about accessible communal open space, we see this terrace as a useful but minor contribution to the overall provision.
8. On the ground floor, as part of this increase in setback from the medical building, Dwelling G.04 should be reconfigured as a one bedroom dwelling, to allow for a more generous entry approach to what is a large apartment building. It will introduce an increased area for landscape, including the potential for a reconfigured ramp.
9. At the southern end of the apartment building, we consider that the whole building should also be reduced by 8 metres, the depth of the two end dwellings. At the top level the communal terrace will move to the north in order to retain the configuration now proposed. The effect of this is a loss of two 2 bedroom dwellings on the first three storeys, and one 2 bedroom and one single bedroom dwellings on level 3.
10. The resultant ground level area should be used to provide a pocket park for residents. We note that there is ample area for in ground planting of a large canopy tree, outside the proposed basement as sought by Council, to both the immediate east and west of this area. This extra area of open space within the development should go some way to addressing Council's concerns about the availability to all residents of the development of readily accessible open space. It is also conveniently situated adjacent to the proposed east west link, and it also reduces the overshadowing of the link.
11. We make further observations on the proposed landscaping of the site below. Having heard and assessed Mr Vernon's evidence, we have no doubt that changes to the proposed landscape will be competently effected.

1. At the hearing, Mr Montebello submitted that the townhouses have been well resolved and that Council no longer pursues any issues with the rear component though comments on landscaping might also be regarded as relevant to the whole site. [7]
2. Whilst the triple storey townhouses are a dramatic change from the tall apartment building originally considered by Council, we are not persuaded that they should be approved without some further changes towards the Bendigo Street frontage. Not only is that section of the site in Precinct PG-3 with a lower 9 metre preferred height but the built form also protrudes to Bendigo Street between a single storey dwelling to the north and a modestly scaled double storey block of apartments to the south. It also has a close visual relationship with the fine-grained, mostly single storey period style dwellings on the opposite side of Bendigo Street.
3. We consider that triple storey dwellings do not respect this different, largely lower scale character along Bendigo Street and will require Townhouses 1, 2, 3, 12, 13 and 14 to be reduced to not more than 9 metres in height, including roof terraces.
4. We like the way in which the townhouses have been designed to present as individual dwellings to the two east-west walkways. They will help activate these walkways and at the same time provide surveillance and a sense of security for pedestrians and other residents in the townhouses.

1. Although not directly related to the height and bulk of the buildings, the pedestrian walkways form an integral part of the site layout and design. Importantly, the publicly accessible east-west link between Bendigo Street and an eventual link through the Office of Housing estate to Essex Street seeks to implement the indicative pedestrian link shown on the Precinct 3 Land Use and Framework Plan. We consider that this will be a positive urban design outcome. As discussed above, we consider that the increase to the communal open space by the provision of the adjacent pocket park will enhance the link.
2. The provision of that link has a bearing on our assessment of whether the preferred maximum building heights of 18 metres (5 storeys) should be exceeded. The Height and Massing Guidelines at Section 4.3-2 of the ACZ1 state that:
   • The preferred maximum building height may be exceeded in some circumstances if:
     • It can be demonstrated that a significant community benefit can be achieved.
     • It continues to meet the objectives in relation to visual impact and overshadowing and increased upper level setbacks.
3. We consider that the provision of a pedestrian link is a significant community benefit in that it improves access from the east to the Prahran Pool, the Princes Gardens and Chapel Street south of Malvern Road.
4. As we have already discussed, we consider that the objectives in relation to visual impact and increased upper level setbacks have been achieved in the portion of the site set aside for the townhouses. We discuss overshadowing in the next section.

ARE OFF-SITE IMPACTS TO THE SOUTH AND EAST WITHIN ACCEPTABLE LIMITS?

1. Aside from visual bulk and the impact that has on neighbouring residences discussed above, there are also two specific impacts that were referred to in Council's reasons for refusal and in submissions by residents.

1. Overshadowing is to be measured at the equinox. Shadow diagrams indicate the extent of overshadowing to the rear yards to the south and east are all unaffected for a minimum of 5 hours between 9am and 3pm. Although part of the rear yard of 127 Bendigo Street is overshadowed from noon, an area of 40 square metres remains unaffected until after 2pm. This degree of overshadowing satisfies the relevant ResCode requirement and we therefore consider it an acceptable outcome.
2. The rear yards of the Bella Street properties to the south are also unaffected by overshadowing when measured at the equinox in accordance with the ResCode standard B21.

1. Although neighbours are concerned about overlooking, the proposal achieves the overlooking standard in ResCode and in the Guidelines for Higher Density Residential Development. South and east facing windows within 9 metres of side boundaries have sill heights of 1.7 metres above floor level or are screened, and decks are fitted with 1.7 metre high screens. Where the separation distance is beyond 9 metres, standard B22 of ResCode would not require screening at such distances.
2. Although Ms Ginberg is concerned about overlooking from the windows and rood top terrace of townhouse 15, we observed on our inspection that a shed occupies the width of her rear boundary. It has the effect of extending the separation distance between the new townhouses and her open yard and rear windows. South facing windows are fitted with obscure glazing and the outside edge of the roof top terrace is set back 4.535 metres from the property boundary. It is also fitted with a planter box to prevent people standing right on the edge of the terrace. It also limits downward views which are also partly blocked by the shed at the rear of her property. Based on our assessment of the plans, we consider that overlooking has been managed in accordance with standard B22 of ResCode.
3. Whilst we acknowledge that noise from upper level balconies and terraces can be potentially intrusive, noise caused by speech, laughter, music and entertainment equipment will be generated from any form of residential development and this is part and parcel of living in an urban area. Other mechanisms exist to deal with unreasonable noise (or any other unsociable behaviour) and potential noise from future residents would not cause us to refuse this proposal.

ARE THERE ANY OTHER ASPECTS OF THE PROPOSAL WHICH ARE UNACCEPTABLE?

1. Mr Saville is concerned about the closure of the psychiatric hospital and the loss of associated jobs. Whilst we understand that the community may value the current facilities on the site, the Planning Scheme cannot force an existing use to continue.
2. We could prevent a new use from starting but the proposal to incorporate medical facilities in the new building at the front of the site on Malvern Road was not strongly objected to by any party at the hearing. We support the inclusion of medical and commercial facilities along Malvern Road, particularly at ground level, as this will assist in activating the street frontage in accordance with part 4.3-1 of the ACZ1.
3. We consider that the detailed composition of the upper level medical facilities is acceptable, but would not be concerned if these changed to reflect the specific needs of the practitioners occupying the building.

1. The development provides 215 car spaces proposed to be allocated as follows:
   • Residents - 119 spaces.
   • Residential visitors - 9 spaces.
   • Medical centre - 74 spaces.
   • Day Procedure Hospital - 11 spaces.
   • Café/pharmacy - 2 spaces.
2. As a result of the amended plans, Council advised that its sole area of concern with traffic and parking was about the number of spaces provided for the medical building.
3. However, at the hearing Mr Montebello submitted that Council is now satisfied with the total number of car spaces being provided but wants the number of residential visitor car spaces increased to 13 instead of 9 as now proposed. The reallocation would be achieved by reducing the number of spaces to be used by residents.
4. According to Mr Kiriakidis, an empirical assessment suggests a demand for only 111 spaces for residents and 9 spaces for visitors for a total of 120 spaces for the residential component of the development. The allocation of 128 spaces for residents is in excess of this empirical assessment.
5. Although we understand the permit applicant wants to provide 8 additional resident spaces beyond the empirical assessment, we are not persuaded that only 9 visitor car spaces should be provided. On-street parking in this locality, although not saturated, is very congested and we consider that extra visitor spaces should be provided. As discussed at the hearing, there are 3 resident spaces in the narrow neck between the two sections of Basement 1 which are adjacent the proposed 9 visitor car spaces. Whilst we understand Council's desire for 4 additional visitor spaces, to require 4 spaces would involve a potentially significant alteration to the internal layout of Basement 1. Therefore from a common sense or practical point of view we consider that only 3 additional visitor spaces should be required and that these should be adjacent the nine already being provided.
6. A loading bay is not required under Clause 52.07 for dwellings. However one is provided in the front section of Basement 1 adjacent the medical bin room. We agree with Mr Kiriakidis that removal of the rear wall of this bay would improve its functionality and have included a condition to that effect.
7. The amended proposal now provides all vehicle access to Malvern Road with no access to Bendigo Street. We note that VicRoads has not objected to the proposal on traffic congestion or safety reasons. We consider that the removal of any vehicle access point to Bendigo Street is a major improvement over the existing arrangement and will reduce traffic flow in Bendigo Street. The intention to provide a security gate at the south end of the apartment building to discourage people from parking in Bendigo Street and then accessing the apartment and medical buildings will also assist in lessening parking pressures in Bendigo Street.

1. A Landscape Concept Plan has been prepared by CDA Design Group Pty Ltd and Mr Vernon attended the hearing to explain the landscape proposal and answer questions. During our accompanied site inspection we were also able to examine vegetation in neighbouring properties and along the driveway abutting the eastern boundary of the site.
2. We do not agree with Council that proposed landscaping is inadequate on this site given its location within an activity centre and where there is a clear intention through Amendment C172 to transform the intensity of built form on this site. However the eastern and southern boundaries of the site do abut lower scale residential development and it is along these boundaries that the majority of the vegetation is to be planted.
3. We do not intend to recite all the details of the landscaping proposed or the different species and whether they are in suitable positions and will grow to the heights anticipated. Whilst we acknowledge Council's commitment to landscaping as evidenced by the contents of Clause 21.06 and by Clause 4.3-15 in the ACZ1, we also consider that site context plays a very important role in determining what extent of landscaping is acceptable. In a 2014 decision for a site further east in Malvern Road Toorak[8] we made the following comments about landscaping which seem as relevant to the review site.

[58] Council is critical about the lack of landscaping opportunities and what it says is a failure to respond to the robust new policy at Clause 21.06-2 to repair and reinforce the high quality landscape character of the City. We acknowledge that landscape has been given greater attention in the recently approved local policies. However, landscape is just one of the policies relevant to this application and it is a matter of striking an appropriate balance against all competing policies, not just those dealing with landscape character and the planting of substantial canopy trees.

[59] We have previously commented that policy at Clause 21.06-1 acknowledges there is difference between the inner urban character at the western end of the municipality and the suburban garden setting of the eastern part. Whilst this reference is to overall urban structure and character, we consider there is a link between built form and landscaping in that smaller, intensively developed lots simply have less space for landscaping than larger, suburban sized lots. The landscaping on sites in this area is a mix of both types. The dwellings to the west of the review site have garden and courtyard areas that are small, paved and with limited vegetation. Sites further to the north, such as 644 and 646 Orrong Road, have larger gardens and more substantial vegetation. However, it is our assessment that the most significant contribution to landscape character in this immediate locality occurs from the large Plane Trees planted within the nature strips.

1. The review site is at the western end of the municipality and within one of only two Group 1 activity centres. We consider that expectations about landscaping must be tempered by those factors. We have already observed that most of the landscaping is along the southern and eastern perimeters, although there is also planting along the more sensitive southern and central sections of the western boundary and along the two east-west pedestrian walkways. We consider that the planting will help filter, but not hide, views of the proposed buildings from the adjoining residential properties.
2. One aspect of the proposed planting along the eastern boundary was the subject of considerable discussion during our accompanied site inspection. At present there is a row of 9 Pear trees between the driveway and the rear boundary fences of dwellings at 117 to 123 Bendigo Street. Two of these appear to be in poor condition but, as discussed at the hearing, there appears to be no impediment to the retention of the remaining trees. As a result of those discussions Mr Vernon also prepared a plan incorporating an additional 5 trees at the northern end of the landscaped area adjacent the rear yards of 125 and 127 Bendigo Street.
3. Our own preference is that the existing trees in good health should remain along with the additional tree planting suggested by Mr Vernon. The permit contains a landscape plan condition that requires a revised landscape plan to be submitted to Council for its approval. The revised plan is to be based on the landscape concept plan we have considered but ultimately it is up to Council to approve the landscaping proposal - including species, sizes at planting, maintenance requirements, etc.

1. Amendment C177 was gazetted on 17 November 2015, less than one week before the commencement of the hearing. It introduces a new Environmentally Sustainable Development policy at clause 22.05. Although the policy post- dates Council's consideration of the application and the preparation of expert evidence, it now forms part of the Planning Scheme and is a relevant policy for us to consider. Council's Sustainable Design Officer provided comments on the original application plans and Mr Montebello tabled her comments at the hearing. The comments were grouped under headings or topics - Indoor Environmental Quality, Energy, Stormwater, Waste, Transport, Urban Ecology and Construction and Building Management.
2. We note that Sustainable Management Plan prepared by Norman Disney and Young was submitted with the original application but that it has not been revised on the basis of the amended plans. Council was critical of the way ESD aspects of the proposal have been dealt with and Mr Montebello submitted that the significant deficiencies go beyond what can be conditioned.
3. We disagree. We make three points.
4. First, a Sustainable Management Plan (the SMP) is required and will be approved by Council prior to the development commencing. The preparation of a SMP is required by Clause 22.05, and Clause 22.05-4 specifies the application requirements for an SMP. We accept that Clause 22.05 is not a mandatory control but the permit condition will ensure that an acceptable SMP is approved to Council's satisfaction.
5. Second, some of the matters referred to by the Sustainable Design Officer appear to set much higher standards than is mandated under legislation. For example, energy scores exceeded the minimum Building Code standard but were still deemed unacceptable based on Council's best practice. Likewise the comments about the need for additional bicycle parking would result in a provision beyond that required by Clause 52.34 of the Planning Scheme.
6. Third, Clause 22.05 is just one of a great many controls and policies which need to be considered. In the same way that neighbourhood character policy seems to overwhelm all other policies, the Sustainable Development policy should not take precedence or have greater weight than other policies. In any event, we are confident that the condition requiring a SMP to Council's satisfaction will achieve an appropriate ESD outcome.

1. At the conclusion of the hearing, Mr Montebello agreed to revise the draft conditions discussed at the hearing. These were received by us on 30 November 2015 and are the basis for the conditions included in Appendix A.
2. However, in assessing these conditions we have made a number of further changes/additions to them to reflect matters discussed at the hearing and in our reasons.
3. For consistency we have changed 'shall' to 'must' and capitalised Responsible Authority. We have also reworded the time limit condition to reflect the wording used by the Tribunal.

1. Having regard to all the above, we will set aside Council's decision and order that a permit issue subject to conditions.

Use and development of the land for a hospital and medical centre, construction of multi dwelling buildings in a Mixed Use Zone, General Residential Zone 12, Incorporated Plan Overlay and Special Building Overlay, reduction in car parking requirement pursuant to Clause 52.06 and alteration of access to a Road Zone, Category1 pursuant to Clause 52.29 in accordance with endorsed plans.

1. Before the commencement of the use and development_,_ two (2) copies of plans drawn to scale and fully dimensioned, must be submitted to and approved by the Responsible Authority. The plans must be generally in accordance with the VCAT plans dated 16 October 2015 but modified to show:

(a) The Malvern Road pedestrian entrance gate set back so that it corresponds to the point where the first floor level extends to the eastern boundary.

(b) Consequential relocation of the bicycle racks and enhanced landscaping.

(c) Levels 1 to 4 at the northern end of the building to have a minimum setback of 8 metres from the southern end of the medical building. Levels 1 to 3 are to be reconfigured as follows:

• (i) Dwellings 1.02 and 1.04 replaced by Dwelling 1.03.
• (ii) Dwellings 2.02 and 2.04 replaced by Dwelling 2.03.
• (iii) Dwellings 3.02 and 3.04 replaced by Dwelling 3.03.

The Level 4 communal terrace is to be consequentially reduced in size.

(d) At ground floor level, Dwelling G.04 is to be reconfigured by deleting the eastern bedroom and setting back the north wall of the dwelling a minimum of 8 metres from the southern end of the medical building. The additional setback area is to be utilised as part of the landscaped entrance to the apartment building.

(e) The southern end of the apartment building is to be set back an additional 8 metres from the east-west pedestrian walkway. This is to be achieved by deleting Dwellings G.11, G.12, 1.11, 1.12, 2.11, 2.12, 3.11 and 3.12. Dwellings 4.06 and 4.07 are to be replaced by the relocated communal terrace. The additional ground level setback area is to be landscaped as part of the communal open space.

(f) Townhouses TH1, TH2, TH3, TH12, TH13 and TH14 to be reduced in height to not more than 9 metres, including the roof top terraces.

(g) Shower and change facilities as referred to within John Kiriakidis' expert evidence at Appendix G;

(h) Any changes as required by condition 3 (WMP), 4 (SMP), 6 (Landscape Plan);

(i) The retention of the masonry wall on the (eastern) common boundary with the Bendigo Street properties;

(j) A notation that requires the retention of the existing vegetation directly adjacent to the eastern common boundary with the Bendigo Street properties except as agreed with any specific property owner;

(k) Provision of 12 visitor spaces in the narrow neck of Basement 1;

(l) Notations and changes to the car parking, loading and access in basements 1 and 2 and the ground floor access to the basement in accordance with the memo from Council's traffic engineer dated 20 November 2015 in relation to the following:

• (i) headroom clearance.
• (ii) convex mirror at the intersection of the medical and residential car parks on Basement 1.
• (iii) dimensions of the site distance triangle at the access to the basement car park.
• (iv) alteration to the medical car park loading area by removing the eastern wall.
• (v) installation of bollards for medical centre disabled parking spaces.
• (vi) the residential car park switch room door to open inwards.
• (vii) column location.
• (viii) turning areas and pedestrian paths.
• (ix) mechanical parking.
• (x) potential residential visitor intercom in island arrangement or other arrangement to the satisfaction of the Responsible Authority.
• (xi) deletion of visitor intercom at Malvern Road ramp.
• (xii) the allocation of car parking spaces to different components of the use.

1. The layout of the site and the size, levels, design and location of buildings and works shown on the endorsed plans must not be modified for any reason (unless the Stonnington Planning Scheme specifies that a permit is not required) without the prior written consent of the Responsible Authority.
2. Concurrent with the endorsement of plans, a Waste Management Plan must be approved by the Responsible Authority. The Waste Management Plan must include:
   • (a) Dimensions of waste areas
   • (b) The number of bins to be provided
   • (c) Method of waste and recyclables collection
   • (d) Hours of waste and recyclables collection
   • (e) Method of presentation of bins for waste collection.

When approved, the plan will be endorsed and will then form part of the permit. Waste collection from the development must be in accordance with the Waste Management Plan, to the satisfaction of the Responsible Authority.

1. Concurrent with the endorsement of any plans, a Sustainable Management Plan (SMP) must be approved by the Responsible Authority. Upon approval the SMP will be endorsed as part of the planning permit and the development must incorporate the sustainable design initiatives outlined in the SMP to the satisfaction of the Responsible Authority.

All works must be undertaken in accordance with the endorsed SMP to the satisfaction of the Responsible Authority. No alterations to the SMP may occur without written consent of the Responsible Authority.

1. Prior to the occupation of the development approved under this permit, a report from the author of the SMP, approved pursuant to this permit, or similarly qualified person or company, must be submitted to the Responsible Authority. The report must be to the satisfaction of the Responsible Authority and must confirm that all measures specified in the SMP have been implemented in accordance with the approved plan.
2. Concurrent with the endorsement of plans, a landscape plan to be prepared by a landscape architect or suitably qualified or experienced landscape designer, must be approved by the Responsible Authority. When approved, the landscape plan will be endorsed and will then form part of the permit. The landscape plan must be drawn to scale with dimensions and three copies must be provided. The landscape plan must be generally in accordance with the landscape concept plan dated September 2015 prepared by CDA Design Group but modified to show:
   • (a) Any changes consequential on the modifications required by condition 1;
   • (b) The relocation/rearrangement of the large tree at the western boundary of the east west access way so that it is not affected by the potential connection of the east west path to the Office of Housing development on Essex Street;
   • (c) Landscaping on the common boundary fence generally in accordance with the plan being drawing number SK02-P1 dated November 2015 by CDA Design as tendered at the VCAT hearing. The retention of the existing vegetation directly adjacent to the eastern common boundary with the Bendigo Street properties except as agreed with any specific property owner;
   • (d) The trafficable part of the east west path being a minimum width of 2 metres;
   • (e) Planting in any planter boxes above ground level;
   • (f) Details of all landscaping at the ground level and above ground level, including details of the design, watering systems, drainage and maintenance of balcony landscaping;
   • (g) Maintenance of the proposed landscaping on the balconies must be made the responsibility of the Owners Corporation and it must ensure consistent maintenance and matching themes for the landscaping into the future.
3. Before the occupation of the development, the landscaping works as shown on the endorsed landscape plans must be carried out and completed to the satisfaction of the Responsible Authority. The landscaping must then be maintained to the satisfaction of the Responsible Authority, including that any dead, diseased or damaged plants are to be replaced.
4. Concurrent with the endorsement of development plans a Tree Management Plan prepared by a suitably qualified arborist must be submitted to and approved by the Responsible Authority. When approved, the Tree Management Plan will form part of this permit and all works must be done in accordance with the Tree Management Plan.
5. The Tree Management Plan must detail measures to protect and ensure the viability of the mature Box Elder within 123 Bendigo Street, mature vegetation within the rear setback of 95 Bendigo Street, and any other large trees adjacent to common boundaries.
6. Without limiting the generality of this requirement, the Tree Management Plan it must have at least three sections as follows:
   • (a) Pre-construction - details to include a tree protection zone, height barrier around the tree protection zone, amount and type of mulch to be placed above the tree protection zone and method of cutting any roots or branches which extend beyond the tree protection zone;
   • (b) During-construction - details to include watering regime during construction and method of protection of exposed roots;
   • (c) Post-construction - details to include watering regime and time of final inspection when barrier can be removed and protection works and regime can cease.

Pre-construction works and any root cutting must be inspected and approved by the Parks Unit. Removal of protection works and cessation of the Tree Management Plan must be authorised by the Parks Unit.

1. Prior to the occupation of any building on the land, the relevant Owner's Corporation for the land must enter into an agreement with the Responsible Authority under s.173 of the Planning and Environment Act 1987 to covenant that it will, in the event that the Office of Housing site at 16 Essex Street Prahran is redeveloped and constructs and makes available an east west pathway to adjoin the common boundary with the subject land (in one of the possible locations as those shown in the plans endorsed under this permit):
   • (a) Remove the relevant portion of the common fence with 16 Essex Street;
   • (b) Remove the relevant portion of any garden beds between the common fence referred to in (a) above and the constructed east-west pathway endorsed under this permit;
   • (c) Construct and extend the pathway to join the pathway constructed at 16 Essex Street;
   • (d) Allow access to the public during hours to be agreed and without charge;
   • (e) Maintain the pathway to a standard that is safe and fit for public access to the satisfaction of the Responsible Authority.
2. The agreement must be registered with the Registrar of Titles in accordance with section 181 of the Planning and Environment Act 1987 and will run with the relevant land, including any common property that may be created as part of the subdivision of the land. If the agreement is not able to be entered into or registered with the Owners Corporation and as against the relevant land, then this clause must be read so that a reference to the Owner's Corporation is a reference to the owners of the relevant stage(s) of the subdivision of the land. Each party will bear its own costs of the agreement.
3. Any poles, service pits or other structures/features on the footpath required to be relocated to facilitate the development must be done so at the cost of the applicant and subject to the relevant authority's consent.
4. The level of the footpaths and/or laneways must not be lowered or altered in any way to facilitate access to the site.
5. All utility services to the subject land and buildings approved as part of this permit must be provided underground to the satisfaction of the Responsible Authority by completion of the development.
6. Prior to occupation, access for persons with disabilities must be provided in compliance with the Disability Discrimination Act 1992 and such access must be maintained at all times the building is occupied or in use.
7. Prior to occupation of the building or commencement of use, the Bendigo Street vehicular crossing made redundant by the building and works hereby permitted must be broken out and re-instated as standard footpath and kerb and channel at the permit holder's cost to the approval and satisfaction of the Responsible Authority.
8. Before the development starts, (this requirement does not apply to bore holes and excavation associated with an environmental site assessment), an environmental site assessment of the land by a suitably qualified environmental professional must be undertaken which provides the following information:
   • (a) The nature of the previous and existing land use/ activities on the land;
   • (b) An assessment of the potential level and nature of contamination (if any) on the land;
   • (c) Advice on whether the environmental condition of the land is suitable for the proposed use/s and whether an environmental audit of all or part of the land is recommended having regard to the Potentially Contaminated Land General Practice Note June 2005, DSE.
9. If an environmental site assessment recommends an environmental audit of all or part of the land, then:
   • (a) before the commencement of any use for a sensitive purpose; or
   • (b) before any substantial buildings or works;
   • (c) then, in respect of all or that part of the land, as the case may, the following must be provided to the Responsible Authority, either:
     • (i) A Certificate of Environmental Audit issued for the relevant land in accordance with Part 1XD of the Environment Protection Act 1970; or
     • (ii) A Statement of Environmental Audit issued for the relevant land in accordance with Part 1XD of the Environment Protection Act 1970 stating that the environmental conditions of the relevant land are suitable for a sensitive use (with or without conditions on the use of the site).
10. If a Statement of Environmental Audit is provided rather than a Certificate of Environmental Audit and the Statement of Environmental Audit indicates that the environmental conditions of the relevant land are suitable for a sensitive use subject to conditions, the owner of the land must enter into an agreement with the Responsible Authority under section 173 of the Planning and Environment Act 1987 before the construction of any building on the relevant land proving for the:
    • (a) implementation and on-going compliance with all conditions in the Statement of Environmental Audit;

(b) the payment of the Responsible Authority's legal costs and expenses of drafting/reviewing and registering the agreement by the owner of the relevant land.

1. The secure access gate located at the south-east corner of the apartment building will be exclusively accessible to residents (not visitors) of the apartment building. The gate will not be accessible through an intercom or similar system, and will also not be accessible to any residents, visitors, patients or employees of the medical centre building.
2. Prior to the development commencing a report for the legal point of discharge must be obtained from Council and a drainage design for the development must be prepared by a suitably qualified Engineer in compliance with Council's requirements prior to a building permit being issued. The drainage must be constructed in accordance with the Engineer's design.
3. Prior to the occupation of the building, appropriate screening (not adhesive film) designed to limit overlooking as required by Standard B22 of Clause 55.04-6 in accordance with the endorsed plans must be installed to the satisfaction of the Responsible Authority and maintained to the satisfaction of the Responsible Authority thereafter for the life of the building.
4. Prior to the occupation of the building/ commencement of use, the walls of the building on a common boundary must be cleaned and finished to the satisfaction of the Responsible Authority.
5. Adequate provision must be made for the storage and collection of wastes and recyclables within the site prior to the commencement of use or occupation of the building. This area must be appropriately graded, drained and screened from public view to the satisfaction of the Responsible Authority.
6. All plant and equipment (including air-conditioning units) must be located or screened so as not to be visible from any of the surrounding footpaths and adjoining properties (including from above) and must be baffled so as to minimise the emission of unreasonable noise to the environment in accordance with Section 48A of the Environment Protection Act 1970 to the satisfaction of the Responsible Authority.

1. Prior to the commencement of the permitted development, a functional layout drawing of the vehicle access to Malvern Road must be submitted to VicRoads for review and approval. The functional layout drawing must include the following:
   • (a) Details of the width of the vehicle crossover. The vehicle crossover must be a minimum of 6.4 metres as measured at the property boundary and the edges of the vehicle crossover angled at 60 degrees to the road reserve boundary;
   • (b) Appropriate swept path analysis demonstrating that vehicles can enter and exit the site concurrently;
   • (c) Details of appropriate pedestrian sight triangles;
   • (d) Details of appropriate clearance between the edge of the vehicle crossover and road side objects.
2. Prior to the commencement of use of the permitted development, works as shown on the approved functional layout drawing must be complete to the satisfaction of the Responsible Authority.
3. Redundant vehicle crossovers onto Malvern Road must be removed and the kerb, channel, footpath and nature strip reinstated to the satisfaction of the Responsible Authority.

1. The permit holder must take all reasonable steps to ensure that disruption to tram operation along Malvern Road must be kept to a minimum during the construction of the development. Foreseen disruptions to tram operations during construction and mitigation measures must be communicated to Yarra Trams and Public Transport Victoria fourteen days (14) prior. Any damage to public transport infrastructure must be rectified to the satisfaction of Public Transport Victoria at the full cost to the permit holder.

1. Pollution and sediment laden runoff must not be discharged directly or indirectly into Melbourne Water's drains or waterways.
2. The entry / exit driveway of the basements must incorporate a flood proof apex set no lower than 14.84 metres to Australian Height Datum (AHD). The highest applicable 1 % ARI flood level is 14.54 metres to AHD.
3. All external doors, windows, vents and openings to the basements must be set no lower than 14.84 metres to Australian Height Datum.
4. The following minimum finished floor levels must be achieved:
   • (a) Town House 15 - Town House 18 : 14.35m AHD
   • (b) Town House 1-4 and Town House 11-14 : 14.85m AHD
   • (c) Town House 5 - Town House 10 : 14.35m AHD
   • (d) Apartments 8 - 15 : 14.35m AHD
   • (e) Apartments 6 - 7 and 16 : 14.3m AHD
   • (f) Apartments 1 - 2 and Apartment 4-5 : 14.2m AHD
   • (g) Apartment 3 : 14.1m AHD
   • (h) Radiology : 14.05m AHD
   • (i) Retail: 13.7m AHD
5. The perimeter walkways and pedestrian link must be set at the natural surface level to allow for the passage of overland flows.
6. Prior to the commencement of works, a separate application direct to Melbourne Water must be made for approval of any new or modified storm water connection to Melbourne Water's drains or watercourses.
7. Prior to the issue of an Occupancy Permit under the Building Act 1993, 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.

1. This permit will expire if one of the following circumstances applies:
   • (a) The development is not started within three years of the date of this permit.
   • (b) The development is not completed within six years of the date of this permit.
   • (c) The use is not commenced within six years of the date of this permit.
   • (d) The use is discontinued for a period of two years or more.

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

END OF CONDITIONS

[1] We have considered the submissions of all the parties that appeared, all the written and oral evidence, all the exhibits tendered by the parties, and all the statements of grounds filed. We do not recite or refer to all of the contents of those documents in these reasons.

[2] Plan Melbourne: Metropolitan Planning Strategy (Department of Transport, Planning and Local Infrastructure, 2014).

[5] For example, Clauses 11.01, 11.04 and 16.01.

[6] For example, we note that in the ninth objective for Built form in 2.0 of ACZ1, the two types of strategic site are listed together.

[7] Paragraph 95 of Council's submission dated 23 November 2015.

[8] Kenik Pty Ltd v Stonnington CC [2014] VCAT 518.