10.1 Has there been a change in circumstances which would warrant this division of the Tribunal forming a different view? > > 10.2 What weight should the Tribunal afford Vivace Property Group in the circumstances? > > 10.3 Do the amendments which have been made satisfactorily address the matters which the Tribunal in Vivace Property Group indicated needed reconsideration?

5. In oral submissions, the Council said that the previous decision is very relevant to our considerations and should be given great weight where the previous Tribunal's directions were clear. However, where these directions are ambiguous, the previous Tribunal's decision should be given less weight. Accordingly, the Council's case rested on perceived ambiguities in the previous Tribunal's 'corrections' and, separately, on Murrumbeena's role as a Neighbourhood Activity Centre.

1. The Applicant agrees with the Council but emphasises that great weight should apply when an Applicant has made a genuine attempt to correct a proposal. They say that public faith in the administration of justice relies on consistent decision making. In oral submissions they highlighted the unrest in the United States of America over the Supreme Court's decision to overturn Roe v Wade.
2. In terms of the proposal before us, they say:

1. The 'Reichert case principles', are that in the absence of material changes to the Glen Eira Planning Scheme (Planning Scheme) as it applies to the Subject Site, changes in the circumstances of the Subject Site and its surrounds and changes in the interpretation of relevant facts or law, the Applicant must advance 'significant changes'[18] to the proposal considered in the Previous Decision and demonstrate a 'genuine attempt' to address the 'primary reasons' that resulted in the Tribunal's refusal at first instance.[19] 2. Importantly, 'significant changes' can be 'generally similar' to the earlier proposal but must incorporate alterations that satisfy the previously identified concerns and specific reasons for the Tribunal's refusal in the Previous Decision.[20] 3. In Sprut v Stonnington City Council,[21] the distinction between a classic repeat appeal and correcting appeal was clarified by Deputy President Dwyer who said a correcting appeal is one where:

'[T]he Tribunal has refused an earlier application but indicated a modified form of development or changes that might be acceptable, and the repeat appeal comprises a genuine attempt to address those issues.'[22]

3. In Sprut case Tribunal cited the oft-quoted passage from Benc v City of Doncaster and Templestowe:[23]

'In the case of a different but similar application which has been prepared in accordance with the advice of the Board, equity or fairness demands that considerable weight be given to the fact that the applicant has endeavoured to accommodate suggestions as to what would be appropriate.'[24]

4. In Reid v Nillumbik Shire Council (No.3) [2011] VCAT 925 then Senior Member Byard said correcting appeals are characterised by following an earlier proposal which was not comprehensively refused, and involves 'a new proposal, generally similar to an earlier proposal refused for specific reasons, but incorporating alterations to satisfy those previously identified concerns.'[25]
5. The Applicant says that they have made a genuine and successful attempt to address all relevant concerns raised in the previous decision. They say that, on grounds of good governance and public policy, we should give great weight to the reasons and the positive findings of the previous decision.
6. They rely on the following authorities:

1. In Sprut Deputy President Dwyer cited the seminal case of Amoco Australia Limited v City of Berwick[26] and held that:

'[T]he role of the Tribunal is to still consider the new application before it on its merits but in doing so, to give great weight to the tribunal's decision on the earlier application having regard to the usual principles that have evolved for this purpose (emphasis added).'[27] > > 20. It was further held in Amoco that: > > 'Generally speaking the earlier decision should not be reversed unless the applicant can show a change in circumstances which warrant a different view_.'_[28] > > 21. In Zumpano v Banyule City Council[29] Garde J cited Burton and Carter Pty Ltd v Frankston City Council[30], and said: > > 'While any "correcting" proposal must be considered on its merits, as a whole and afresh, that is 'de novo', equity and fairness demands that if a permit applicant is found to have satisfactorily addressed the matters raised in the previous Tribunal decision then there is a reasonable expectation that a permit will issue.'[31]

1. The Respondents made no written submissions on the weight that we should give to the previous decision. The Glen Eira Historical Society discussed the previous decision and highlighted what it regards as failings in the proposed response to the previous Tribunal's commentary on heritage issues.
2. When asked, Ms Blackman said that she understood the previous Tribunal wanted stepped upper-level setbacks, Ms Mason disagreed with the previous Tribunal on the proposal's response to the character of the Murrumbeena Urban Village, and The Glen Eira Historical Society reiterated the perceived failure to 'correct' the proposed conservation management approach.

1. We give great weight to the previous decision. As stated in Zumpano, equity and fairness suggest that it is reasonable for us to do so. We find that the Applicant has genuinely attempted to address all relevant issues of concern raised in the previous decision, and that they have largely been successful.
2. We do not accept the Council's submissions that some of the previous Tribunal's corrections are ambiguous. Rather, we agree with the Applicant that each of these corrections must be understood in the context of the entire decision. In this way, any ambiguity is resolved.
3. We give great weight to the previous Tribunal's decision because it clearly turned its mind to the policy context of the site, its physical context and the matters raised by the parties. These were considered in its findings.
4. We consider that the previous Tribunal's findings on the positive aspects of the proposal were clear and unambiguous. It supported:
   1. student accommodation in this location;
   2. a building of seven storeys on this site;
   3. the demolition of some of the host building's heritage fabric;
   4. the proposed response to the retained heritage façade subject to a Conservation Management Plan;
   5. the level of amenity of most of the student accommodation rooms; and
   6. the proposed reduction in car parking.
5. It also looked favourably on the building's architecture. It said:
   1. The design treatment proposed for the upper levels, with a reconfiguration to the third level to provide an effective separation of parts, is an interesting and coherent piece of architecture. It is well-suited to inclusion within the emerging higher contemporary forms initiated strategically by policy and physically by the striking Skyrail station.

A consequence of giving great weight to the previous decision

1. A consequence of giving great weight to the previous decision is that we give little weight to submissions that raised issues that were clearly rejected by the previous Tribunal. In the language of repeat appeals, these submissions are 'forum shopping', where parties hope to obtain a different decision to the one previously made. This was explained by Senior Member Byard in Reid:
   1. this is not really a repeat of a proposal that was comprehensively refused or refused "in principle" in the previous case...
   2. I believe that a formulation of this approach arose out of concerns as to "forum shopping." That expression means trying to select a court or tribunal that would give a favourable decision. In the past there have sometimes been a series of identical or all but identical applications for a proposal that has been previously refused. The motivation for this tactic might be hoping to wear down (parties) or possibly the Tribunal, in the hopes of obtaining a different decision to the one or ones previously obtained. Presumably the hope is that a responsible authority might change its mind, or that a differently constituted Tribunal may come to a different conclusion.
   3. Such tactics are very properly frowned upon. The notion of "repeat appeals" is that the same result can be expected in relation to and identical proposal unless there are changed circumstances justifying a difference result.
2. We consider that the Council's grounds on 'excessive height, bulk, scale and form' fall into this category. The parties to this review will recall that the Council's advocate chose to highlight ambiguities in the previous Tribunal's 'corrections' rather than agitate all issues in the Council's grounds. We consider that this was done to avoid forum shopping.
3. We consider that many of the Respondents' submissions are forum shopping.[32] The previous Tribunal found that:
   1. student accommodation was appropriate in this location.[33];
   2. the level of amenity provided to students was generally acceptable;[34]
   3. the impact on the amenity of surrounding properties was acceptable;[35] and
   4. the reduction in the number of on-site parking spaces is satisfactory.[36]

1. The Applicant says that we should give weight to the Council officer's recommendation despite it being overturned by the elected Councillors. It relies on the decision in Parkhouse, which found that:
   1. ... I note that the Tribunal and its predecessors have long held that an officer's report is a relevant consideration taken into account in proceedings such as this. While a Council is, of course, not obliged to blindly follow the advice of its officers, such reports represent the professional advice available at the time a Council reaches its decision.[37]
2. This submission was not contested, and we find that it accords with our understanding of this convention. We give it weight for the reasons outlined in Parkhouse.

DO THE CORRECTIONS RESOLVE THE SHORTCOMINGS OF THE PREVIOUS DESIGN?

1. On this issue, the previous Tribunal said that:
   1. A conservation management plan would be necessary to address heritage issues inherent in the retention of the fabric of 430 Neerim Road, and in the design of the replica 'twin' and infill building to the east. These are matters that have clearly not yet been assessed. However, had we been of a mind to grant a permit, a condition requiring a conservation management plan could address these issues.
2. The Applicant says that this is addressed by the Schedule of Conservation Works prepared by Bryce Raworth in April 2021 that formed part of the permit application. This Schedule provides direction on the repair and restoration of the existing shop façade at 430 Neerim Road and a methodology for the reconstruction of the adjoining façade at 432 Neerim Road.
3. The Glen Eira Historical Society questioned whether this Schedule was the Conservation Management Plan sought by the previous Tribunal. It contended that such a Plan should be prepared before any work is done on the overall design rather than being done after the design was completed.
4. In his oral evidence, Mr Raworth respectfully contended that the previous Tribunal used the wrong language in describing what it required as a 'Conservation Management Plan'. He explained that, in heritage circles, a Conservation Management Plan is exactly what the Glen Eira Historical Society described, whereas in his opinion, the previous Tribunal was seeking a 'Conservation Management Strategy' or 'Schedule of Conservation Works'.
5. We accept Mr Raworth's explanation. Apart from his explanation, what persuades us is that the previous Tribunal said that the Conservation Management Plan could have been required by a condition on the permit. This indicates that the previous Tribunal sought the detailing of the conservation works rather than a complete redesign of the proposal.

The 'waist' at Level 2, the upper level setback to Neerim Road and the use of ribbed concrete to clad the upper floors

1. Our reading of the previous Tribunal decision is that these corrections would ensure an acceptable response to the heritage values of the site, the broader heritage precinct and the surrounding residential area.

1. The previous Tribunal considered that Level 2, which provides the transition between the heritage-based lower levels and the contemporary architecture of the upper levels, did not ensure that the heritage fabric remains predominant.[38] It said that failing to clearly define and separate the upper and lower forms was a major flaw because it emphasises the building's scale and bulk.[39] It found that Level 2 needs to be recessed far enough to form a consistent 'waist' in the building and not project beyond the levels above it.[40]
2. The Applicant says that it has provided the 'waist' required by the previous Tribunal. It relies on the evidence of Ms Bell and Mr Raworth in making this submission.
3. Ms Bell notes that the current proposal sets Level 2 back approximately 0.5m-0.7m behind the glazing line of Level 3, and that this is sufficient to form a consistent 'waist' or 'negative level' that clearly defines and separates the upper floor from the heritage street wall.[41]
4. Mr Raworth says that the proposed upper levels will have an appropriate degree of physical and visual separation from the reinstated heritage facades, and represent an acceptable outcome for this commercial precinct, noting the context provided by Skyrail and the Murrumbeena Station.[42]
5. The Council disagrees. It says the 'waist' at Level 2 makes the upper levels more prominent above the retained heritage façade and above the two-storey heritage streetscape when viewed from the public realm.[43]
6. Several Respondents questioned the success or otherwise of the 'waist'. Ms Blackman put their case most succinctly in saying that the 0.5m difference between Levels 2 and 3 would not be perceived at distances over 172m thus would not clearly define and separate the upper form from the heritage street wall. She also said that this difference would be imperceptible when viewed from a café on the opposite side of Neerim Road and approximately 100m from the site.

1. We find that the 'waist' successfully defines and separates the upper and lower levels of the building. We consider that Ms Bell fully justified this position in cross-examination.
2. We find that it is not critical that the 'waist' will not be perceptible from distances of over 170m. Most people will view it from a multitude of distances as they visit this activity centre. The photomontages show that it is quite visible in views travelling south on Murrumbeena Road or west on Melbourne Road. As most people will view three sides of this building from Neerim, Murrumbeena and Melbourne Roads, their understanding of the building will be that it includes a 'waist' that separates the two-storey heritage street wall from the contemporary form above.

1. The previous Tribunal found that, in addition to the 'waist', a further setback of the upper levels from Neerim Road was required. It said that a setback in the order of 4m to the leading edge of the projecting hood was required for levels 3-5 to achieve an acceptable relationship with the retained heritage fabric, or a reduction in height through the removal of one of these levels.[44]
2. The Applicant contends that they have made this correction. In the plans before us, the leading edge of the hood is set back 4.065m from Neerim Road, with the glazed façade of Levels 3-5 set back 5m. To achieve this outcome, the extent to which the hood overhangs the floors below is reduced from 1.774m to 0.935m (see diagram below). They have not pursued the option of removing one floor of the building.
3. The Council identify this as one of the ambiguities in the previous Tribunal's corrections because the depth of the setback to the glazed wall was not specified. Apart from this, it says that the proposed setback still dominates the host heritage building and the heritage precinct. They rely on the evidence of the Council's urban designer who supported a five-storey building with 5m setbacks on the third and fourth floor, and its heritage consultant, who supported the proposed setback from Neerim Road but did not support the seven-storey height.
4. When asked, Ms Blackman advised that she understood the previous Tribunal decision as requiring stepped upper-level setbacks.

1. We find that the Applicant has not made this correction in the manner sought by the previous Tribunal. While the previous Tribunal did not specify a setback for the glazed façade, we consider that it supported the hood as part of this interesting and coherent piece of architecture.
2. We consider that the previous Tribunal did not anticipate that the depth of the hood would be reduced in this correction. It had made favourable comments about the architectural design's response to the new Murrumbeena Railway Station, which has a distinct hood. We raised this with Ms Bell, and she agreed that retaining the hood as previously proposed would improve the architectural response. We also note Mr Raworth's observations that the hood has no discernible impact on the response to the heritage building and precinct.
3. In response, the Applicant does not oppose revisions to the plans to:
   1. maintain the hood over Levels 3-5 (and part of Level 6);
   2. provide a 4.065m setback from the leading edge of the hood to the Neerim Road frontage; and
   3. provide an additional 500mm setback of south-facing wall to the Neerim Road frontage (as a consequence of increasing the hood's setback).
4. We are satisfied that this change would achieve the previous Tribunal's 'correction' of setting back the leading edge of the hood for Levels 3-5 'in the order of 4m'.

On the use of ribbed concrete to clad the upper floors

1. On this issue, the previous Tribunal said:
   1. We are far from persuaded that the principal material proposed, ribbed concrete, could do justice to the design, or that the images presented at the hearing could be realised. Despite plans correcting anomalies provided at the hearing and additional information detailing proposed materials, we are not confident that the architectural renders properly reflect the outcome that would result from the materials proposed. Our conclusion is that the design, despite positive attributes, is insufficiently developed to be an acceptable outcome for the site, indicated in part by the lack of information on the substituted plans and the materials proposed. A refinement of the architectural response is required.
2. Further to this, its concluding paragraph summarises the required corrections as follows:
   • Subject to an acceptable design response a seven level building could be contemplated on the review site.
   • A refinement of the architectural detail, materials and finishes is required.[45]
3. The Applicant contends that they have addressed this issue by replacing the ribbed concrete with metal standing seam cladding in a Colorbond Windspray colour, and by providing photomontages instead of architectural renders. They say that a 'refinement' is not a re-design.
4. The Council contends that the previous Tribunal's requirement for a 'refinement of the architectural response' requires more than this. It highlights the previous Tribunal's requirement for an 'acceptable design response' and links it to the call for a 'refinement of the architectural response'.
5. Further to this, the Council places weight on the previous Tribunal's decision to refuse the application rather than either issuing an interim decision or correcting the plans by conditions on a permit. It says that this promotes a redesign rather than the minor changes that the Applicant has made.

1. We find that replacing the ribbed concrete with metal standing seam cladding achieves the correction sought by the previous Tribunal. Ms Bell's evidence persuades us that the standing seam provides additional articulation to the upper-level walls and Mr Raworth's observation that this form of cladding is often used on heritage sites assures us that it will have no adverse heritage impacts.
2. We disagree with the Council's submissions. We find that, in paragraph 47, the previous Tribunal identified the cladding as a specific problem then reiterated the proposal's other shortcomings, being the lack of a 'waist' and the inadequate upper-level setback to Neerim Road. We see a similar pattern in the previous Tribunal's concluding paragraph. The comment on an 'acceptable design response' relates to the lack of a 'waist' and the inadequate setback, while the 'refinement of the architectural detail, materials and finishes' relates to the ribbed concrete cladding. We do not see it as an opportunity to broaden the range of issues in the manner that the Council says that we should.

On refusing to grant a permit rather than issuing an interim decision or amending the proposal through conditions on a permit.

1. We disagree with the Council's submission that the previous Tribunal's decision to refuse to grant a permit suggests that the proposal must be substantially changed to be acceptable. We regard the previous Tribunal's decision to refuse the application as an opportunity to give the Applicant and their architect the freedom to correct the proposal in a manner that best suits the Applicant's needs, while at the same time, correcting the shortcomings identified by the previous Tribunal.
2. We agree with the Applicant that the Tribunal discourages interim decisions. A key reason is that it usurps the Council's role as the primary decision-maker. In principle, it is not appropriate for an Applicant to negotiate an 'acceptable' outcome with the Tribunal when they have chosen not to negotiate with the Council's officers.
3. We consider that the previous Tribunal chose not to correct the plans by conditions on a permit because such conditions must be clear and precise. That the previous Tribunal called for an upper-level setback 'in the order' of 4m suggests that it acknowledged that the ultimate setback needed to account for the internal layout as well as its external impact. A similar situation arises with the change from the previous Level 2 to the new Level 2. Such changes are best left to the architect rather than being imposed by the Tribunal.
4. This analysis begs the question of why we are granting a permit with conditions that require changes to the plans. Our reasoning is two-fold. Firstly, there needs to be an end to litigation in order to provide certainty to all parties. Secondly, the changes that we require were flagged and responded to during the hearing. In this manner, the Applicant had an opportunity to clarify what they would accept.

IS THE PROPOSAL AN ACCEPTABLE PLANNING OUTCOME?

1. The reasons provided above address the previous Tribunal decision and the Applicant's corrections in response to that decision. We now need to decide if the proposal is an acceptable planning outcome.

1. The Applicant says that the proposal strikes an acceptable balance between policies supporting increased densities in activity centres and policies requiring a sensitive response to heritage settings.[46] They say that we cannot ignore the Skyrail and the new Murrumbeena Railway Station. They say that this infrastructure demonstrates the State government's commitment to transport infrastructure that complements the Planning Scheme's objectives for more intensive development in activity centres with convenient access to public transport.[47]
2. They say that local policy has a role and that the built form response to local policy is often clarified through a Design and Development Overlay. They note that there is no such Overlay in this activity centre. On this basis, they say that we must apply a 'first principles' approach to our assessment of the proposal.
3. They say that such an approach cannot ignore the site's physical context, which includes the site's three frontages, its central location in the activity centre and its proximity to the new Murrumbeena Railway Station, as well as its heritage value.
4. In this context, they say it is relevant that the architectural design relates to the new Station, that it celebrates its heritage fabric through careful restoration and respectful additions to the heritage street wall, and that it results in no adverse amenity impacts or loss of equitable development opportunities to its immediate neighbours.
5. Much of the Council's submissions relate to the role of planning policy in the assessment of the proposal. In oral submissions, it emphasised that Murrumbeena was a Neighbourhood Activity Centre where development was expected to be less intensive than what is occurring in Glen Eira's Phoenix Precinct and Urban Villages. It also relied on the purpose of the Commercial 1 Zone seeking:

To provide for residential uses at densities complementary to the role and scale of the commercial centre.

1. Apart from that, it advised that it disagrees with the previous Tribunal's reliance on the decision in 348-354 Hawthorn Road, which found that the City Plan had no weight relative to the urban design tests of the Planning Scheme as set by both the State and local policy frameworks.[48]
2. To an extent, the Council relied on its urban design and heritage advice that was provided to the Council's officers in their assessment of the proposal. This advice recommended a lower building with setbacks of at least 5m from the site's frontages.
3. In cross-examining Mr Raworth and Ms Bell, the Council pursued its reliance on policy and revealed their reliance on the previous decision rather than on a comprehensive review of the policy framework.

1. We agree with the Applicant that we must apply a 'first principles' approach to our assessment. To this end, we give weight to those features of the site's physical context that support a reasonably sized building on this site. These features include:
   1. the site's three frontages as this feature ensures that the building is separated by at least the width of the adjacent roads from other properties. This distance reduces the potential amenity impacts of visual encroachment, overshadowing and overlooking;
   2. the site's central position in the activity centre, as this is the logical place for a building of greater height than others that may emerge in this activity centre in the future;
   3. its proximity to the new Murrumbeena Railway Station as this building provides a marker to the future scale and role of this activity centre; and
   4. the existence of recent five-storey buildings on the periphery of the commercial area of this activity centre.
2. We also give weight to the State planning policies supporting increased densities and more diverse services and activities in activity centres generally. The objectives of Plan Melbourne seek a 20-minute city where residents can access a wide range of essential and discretionary services within a 20-minute radius of where they live. These objectives promote increased residential densities in activity centres to anchor this new role, and as a market for the diverse range of services that are expected to develop.
3. As discussed at the hearing, Plan Melbourne also seeks to restrict the number of new houses being built on the outskirts of Melbourne to approximately 40% of all new dwellings, with the remining 60% being constructed in Melbourne's established areas. It does so for social, environmental and economic reasons.
4. In terms of social reasons, we compared the limited range of services found in new suburbs with the rich array of services found in established areas and noted the social benefits for residents in established areas. The environmental reasons include the different levels of car dependency in new and established suburbs, including the differing length of the commute to work. The economic reasons include making good use of existing infrastructure (roads, public transport, schools, health services, etc) in established areas rather than establishing them afresh in new areas.
5. Finally, Plan Melbourne also seeks to constrain new housing in established residential areas in order to protect the valued neighbourhood character. As we discussed at the hearing, the Planning Scheme would not support a seven-storey building in the residential areas of Murrumbeena due to its impact on the low-scale character of these streets.
6. When combined, these objectives leave activity centres as one of the places where significant housing growth can occur. This is a key reason why we find this building is acceptable.
7. We acknowledge and give weight to local policy on smaller activity centres and housing diversity areas. These policies recognise that retail is declining in these centres and that a diversity of uses is required to ensure a vibrant future for these places.[49] We note that this policy promotes the use of 'urban village principles' in these centres to promote greater use of these centres by local residents. Separately, we acknowledge that this policy identifies a hierarchy where smaller centres will be of a lesser scale than the Phoenix Precinct and the Urban Villages.
8. We acknowledge the role of the Glen Eira City Plan and its intention for four to five storey building heights in the commercial area of the Murrumbeena Activity Centre, with three storey buildings in the immediate residential hinterland (particularly to the north).
9. We find that the combination of the site's physical and policy context allows a building of seven storeys to be contemplated on this site. In effect, we must give more weight to what Murrumbeena will be in the future rather than what it has been in the past. We find that, at seven-storeys, this is a mid-range height that is becoming more commonly found in established activity centres in Melbourne's middle-ring suburbs. We find the site's physical attributes, as described above, facilitate a building of this height.
10. We find that a seven-storey building on this site can be contemplated by planning policy. This height is lower than what is found in the Phoenix Precinct and the Urban Villages, and it can complement the emerging five-storey character of this centre. We see no urban design issue with this building being two or three levels higher than future buildings in this commercial area due to its location on a prominent corner.
11. We find that the Glen Eira City Plan 2020's vision of four to five-storey buildings in and around this commercial area is not fatal to the proposed height. The Panel for AmC220 recommends incorporating this Plan into the Glen Eira Planning Scheme as a background document. In other words, it is to inform the understanding of the Planning Scheme's policies rather than be taken as an iron-clad rule or even a preferred height (as is likely to occur under a Design and Development Overlay). Given this status, we find that the weight we have given to the site's unique physical characteristics allow for a building of a height greater than four to five storeys.
12. Regarding the heritage policies that apply, we acknowledge that any redevelopment of the site must not adversely affect the significance of the site and the heritage precinct. We find that the proposal will significantly enhance the site's heritage fabric through careful restoration. We find that its replication of the heritage detail on the heritage building's 'twin' and the respectful design of the extended street wall will also enhance the site's heritage fabric. We find that the building's height does not unreasonably diminish the significance of the site and the precinct, especially in light of what Murrumbeena will be in the future. In effect, we consider that a building of five storeys would have a similar effect.

1. The upper-level setback to Neerim Road was the focus of Council's submissions and its cross-examination of the urban design and heritage witnesses.
2. We find that the revised upper floor setback agreed to by the Applicant and detailed at paragraph 76 of these reasons is a respectful response to the heritage building and precinct. We accept Mr Raworth's evidence that 5m front setbacks are commonly used in similar settings and are found to be acceptable. He persuades us that the revised setback, in combination with the 'waist' and the Windspray cladding of the upper levels, respects the site's heritage setting.
3. The Council's submissions do not persuade us that a greater setback is required. We find these submissions to carry less weight than the previous Tribunal's decision. The Council's submissions promote an alternative response to this set back based on a reading of the policy framework. It does not deny other readings of the policy framework, such as that undertaken by the previous Tribunal or by us. Based on Zumpano, we find that the Council's alternative does not outweigh the reasonable expectation that a properly 'corrected' proposal should be granted a permit.

1. We do not accept the submissions of the Council and Respondents that the architectural response needs more refinement. We accept Mr Raworth's advice that heritage policy promotes contemporary architecture above retained heritage fabric and we agree with his opinion that the form, detailing and cladding of the proposed upper floors are respectful of the building's heritage setting.
2. We agree with the previous Tribunal that the proposal is 'an interesting piece of architecture' and find that the corrections required by that Tribunal make the building 'coherent'. Given that we must focus on Murrumbeena's future, we find it appropriate that the proposal makes a gesture to the new Murrumbeena Railway Station through its protruding hood and standing seam Windspray cladding. We consider that these gestures, once fully realised through the revised upper floor setback, contribute to the sense of place in this activity centre.
3. It would not have been our choice to require a 'waist' to clearly define and separate the upper and lower levels, as this can accentuate the mass of a building's upper floors. We also consider that the framing of Levels 3, 4 and 5 by the front and rear hoods accentuates their size by making them appear as one shape rather than three levels. In effect, we may have sought changes to these aspects of the design to make it more acceptable.
4. However, we find that our preferences carry less weight than the previous Tribunal's decision. There is always more than one acceptable outcome, and based on Zumpano, we find that our architectural preferences do not outweigh the reasonable expectation that a properly 'corrected' proposal should be granted a permit.

1. We find that the proposal has addressed the internal amenity issues raised by the previous Tribunal, and we consider that these corrections are acceptable. During the hearing, we raised concerns about the width of Room 312 and consider that this issue can be addressed by relocating the wardrobe to achieve a minimum width of 2.5 metres.
2. Separately, we find that the combination of amending the floor plan for Rooms 117 and 213 so that the beds are not next to the wall of the lift and ensuring adequate acoustic treatment of the lift well will ensure that these rooms are acceptable. We consider that the revised layout shown in the Plan "Alternative Room Layout for Room 117 & 213" (1 page) dated 2022/06/28) by C. Kairouz Architects achieves the first of these outcomes, and that the permit condition requiring a revised Acoustic Report addresses the second of these requirements.
3. Several respondents sought to ensure that the student accommodation facility could serve students with limited mobility. The Applicant advises that at least six rooms can be adapted to serve these students and that an accessible toilet can be provided in the rooftop common room. We find that these measures are acceptable, and we will impose them by conditions on the permit. We are satisfied that the other common areas (the lobby, lifts and corridors) can accommodate students with limited mobility.
4. We consider that concerns we raised about the north-facing rooms are addressed through aspects of the design. We accept the advice of the Applicant's sustainable design consultants that the combination of eave projection at Level 6, and overhang from balconies and floor areas for Levels 2 to 5 will help to restrict solar heat gain in summer.

1. We have given little weight to the Respondents' concerns about the impact of the building's height, mass, bulk and scale on the surrounding residential area, as we view it as 'forum shopping'. As well as that, we rely on our assessment of the policy framework and its focus on Murrumbeena's future.
2. We accept that Ms Hewitt and Mr Manton raise a new issue of loss of privacy caused by the overlooking of their front yard and front rooms from upper-floor windows facing Murrumbeena Road. Mr MacFadyen and Mr De Sousa also raise this issue. We do not agree with Ms Hewitt and Mr Manton. The windows in question are more than 9m away (on the opposite side of Murrumbeena Road). We note that the overlooking standard of clause 55 of the Planning Scheme (the Code that applies to buildings up to four-storeys) only seeks to restrict views within a 9m arc of the windows in question, while clause 58 of the Planning Scheme on Apartments (buildings over four-storeys) does not set a distance, rather it only seeks to avoid direct views.[50]
3. In this context, we find that that the views to the windows and open space of Ms Hewitt and Mr Manton's property and to the living rooms and terraces of Mr MacFadyen and Mr De Sousa are acceptable. They are not direct views at such a small distance that there will be a constant or even regular sense of these residents being encroached upon. Rather, when students of the proposed buildings are at their windows, they will have a broad view to observe, similar in scope to what is available from most suburban windows facing a street. This is a reasonable outcome rather than one that is fatal to the proposal.

1. We have given little weight to the Respondents' concerns about the impact of the proposed reduction in the number of on-site car parking spaces, as we view these concerns as 'forum shopping'. Apart from that, we prefer Ms Dunstan's empirical evidence of car parking demand in existing student accommodation facilities over the rate specified in the local policy for student accommodation. Her explanation of the change from regional to international students in the time since the policy was drafted was persuasive. Further to this, we acknowledge that planning policy generally promotes the use of alternate modes of transport to the private car, and we see this as an appropriate site to implement this policy given its proximity to public transport.
2. We do not agree that the number of students with cars should be limited. This appears to be an onerous and unnecessary provision given that the supply of car parking is unlikely to be fully occupied.
3. We find that the landscaping on the terraces of Level 2 detracts from the clear separation between the heritage fabric of the street wall and the contemporary form of the upper levels. We consider that it has the potential to obscure the 'waist' and that it is discordant with the parapet of the heritage shop building and its replicated twin. We recognise Ms Bell's opinion that this landscaping would add amenity for future students but find its adverse impact on the architecture and heritage values outweighs this benefit. We have no objection to students introducing pot plants and/or planter boxes yet find it is appropriate to avoid any permanent landscaping on these terraces.

1. During the hearing, the draft conditions circulated by the Council were refined to create a final 'tracked changes' version. We have modified this final version as follows:
   1. Re-ordered the requirements of Condition 1 (Amended plans) so that the most significant changes are listed first;
   2. Included the requirement to maintain the hood over Levels 3-5 (and part of Level 6) yet increase its setback to reflect our findings;
   3. Not required the floor-to-floor height of Level 2 to be reduced to 3m, as we accept the Applicant's reasons for this increased height;[51]
   4. Removed the requirement to landscape the terraces at Level 2 in draft Condition 3 - Landscaping, to reflect our findings;
   5. Removed draft Condition 9 - Bicycle Parking because it is addressed in Condition 1 (Amended plans);
   6. Deleted the requirement to clearly mark the direction of traffic on the access aisles in the basement in draft Condition 10 as the direction of traffic will be self-evident;
   7. Revised draft Condition 18 - Acoustic Report to refer to the Acoustic Report that accompanied the permit application and to add a requirement to protect residents against noise from the lift and, potentially, other internal noise sources.
   8. Deleted draft Condition 32 - General Amenity and draft Condition 34 on Lighting as we consider that the potential amenity and lighting impacts from the student accommodation use are addressed through the Student Housing Management Plan and the condition on the Communal Open Space. We consider that the potential amenity impacts from the retail uses are comparable to those of other retail uses in this activity centre. We see no need to treat the proposed retail uses differently.

1. For the reasons given above, the decision of the responsible authority is set aside. A permit is granted subject to conditions.

• Use of the site for Accommodation;
• Construction of a building and construction or carrying out of works;
• Demolition; and
• Reduction in the required number of car parking spaces.

1. Before the development starts, amended plans to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the plans will be endorsed and will then form part of the permit. The plans must be drawn to scale with dimensions and must be generally in accordance with the plans prepared by C. Kairouz Architects (identified as Demolition Plan rev. FF dated 31/08/21, A101-A101.2 rev. JJ dated 16/03/21, A102-A103 rev. HH dated 4/3/21, A104-A121 rev. JJ dated 16/3/21, A122 and A123 dated 16/3/21), Schedule of Conversation Works by Bryce Raworth dated 1/4/21, Environmentally Sustainable Design Report prepared by Sustainable Development Consultants dated March 2021, and Plan of External Colours and Materials prepared by C. Kairouz Architects (being the Plans "External Colours & Materials" (two pages) dated 27 June 2022) but modified to show:

1. The south elevation set back in accordance with plan sheets "Rev FF (previous design) and "Rev JJ (current design) Section view perpendicular to Neerim Rd (2 sheets) dated 2022/06/30", and consequential internal floor plan changes. 2. A notation that at least six student accommodation rooms can be adapted to achieve the accessibility objectives of clause 58.05-1 of the Glen Eira Planning Scheme with these rooms identified and dimensioned. 3. The toilet in roof top common area dimensioned and fitted out to comply with the Disability Discrimination Act 1992. 4. Notate the spaces to the west of the sliding doors to LO2-201, 214, 215 and 216 as balcony spaces. 5. Re-organise the layout of Unit 312 by relocating the wardrobe to achieve a minimum width of 2.5 metres. 6. Amend and dimension the floor plan for Units 117 and 213 in accordance with the Plan prepared by C. Kairouz Architects (being the Plan "Alternative Room Layout for Room 117 & 213" (1 page) dated 2022/06/28) or amend the floor plan so that the beds do not abut the lift shaft wall. 7. All trafficable external balconies (including the balcony to the communal area and kitchen) with a balustrade to a height of at least 1.2 metres above balcony floor level. 8. No access from adjacent windows to all non-trafficable balconies. 9. Notations that no air conditioner condenser units will be located on balconies or in locations visible from any street. 10. All Student Housing rooms having ventilation provided through openable windows and adequate access to daylight through light courts of at least 3 square metres with a minimum dimension of 1 metre clear to the sky. 11. Privacy screens between adjacent balconies to a height of at least 1.7 metres above balcony floor level, excluding the "Juliette" balconies on levels 3,4 and 5 on the north and south elevations. 12. An annotation on the plans that the ground floor entrance will be designed to match with existing footpath levels. 13. An amended Materials and Finishes Schedule referencing the Dulux and Colourbond colour codes, as applicable, for the materials board on all plan sheets where noted, and as shown on the Plan of External Colours and Materials prepared by C. Kairouz Architects (being the Plans "External Colours & Materials" (2 pages) dated 27 June 2022). 14. The design of bicycle parking facilities to accord with Clause 52.34 of the Glen Eira Planning Scheme or Australian Standard AS2890.3-2015. 15. A convex mirror provided on the west side of the accessway facilitating sight lines to the east. 16. A Landscape Plan in accordance with Condition 3. 17. A Car Stacker Management Plan in accordance with Condition 11. 18. A Public Realm Management Plan in accordance with Condition 13. 19. An Acoustic Report in accordance with Condition 18 and any requirements from this report clearly shown on the plans. 20. A Conservation Management Strategy in accordance with Condition 20 and any requirements from this report clearly shown on the plans. 21. Any changes required by the Sustainable Management Plan submitted and endorsed by the Responsible Authority pursuant to condition 27.

1. Any required changes to the Waste Management in accordance with Condition 29.

1. The modifications required by the Department of Transport at Conditions 37 and 38.

When approved, the plans will be endorsed and will then form part of this Permit.

1. The development as shown on the endorsed plans must not be altered or modified (unless the Glen Eira Planning Scheme specifies a permit is not required) except with the prior written consent of the Responsible Authority.

1. Before the development starts, a detailed landscape plan to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved the plan will be endorsed and will then form part of the permit. The landscape plan must be prepared by a person suitably qualified or experienced in landscape design and must be drawn to scale with dimensions. All species selected must be to the satisfaction of the Responsible Authority. The landscape plan must show:
   1. Removal of proposed landscaping at Level 1.
   2. Robust landscaping and planting within the communal open space areas.
   3. A planting schedule of all proposed vegetation including botanical names, common names, pot sizes, sizes at maturity, and quantities of each plant.
   4. An analysis of the different irrigation demands for the different planters within the site.
   5. Details of the irrigation sources, supply and connections points.
   6. Details of a maintenance program for the irrigation systems including flushing, checking systems integrity, monitoring sensors and calibration settings.
   7. Responsibility for the ongoing maintenance of the irrigation systems and all landscaping by the landowner unless otherwise agreed to the satisfaction of the Responsible Authority.
2. Before the building is occupied, or by such later date as approved in writing by the Responsible Authority, the landscaping works shown on the endorsed Landscaping Plan must be carried out and completed to the satisfaction of the Responsible Authority.
3. The landscaping shown on the endorsed Landscaping Plan must be maintained to the satisfaction of the Responsible Authority including by:
   1. Implementing and complying with the provisions, recommendations and requirements of the endorsed landscape plan.
   2. Not using the areas set aside on the endorsed landscape plan for landscaping for any other purpose.
   3. Replacing any dead, diseased, dying or damaged plants.

1. Before the development starts including demolition, the three Ficus microcarpa var. hillii (Hills Weeping Fig) street trees (Asset ID TS65034, TS65024, TS65025) located on the Neerim Road and Murrumbeena Road frontages of the site must be removed by the permit holder at no cost to the Responsible Authority.

1. The vehicle crossing to Melbourne Street must be constructed to suit the proposed driveway to the satisfaction of the Responsible Authority and the existing crossing must be removed and replaced with footpath, nature strip and kerb and channel, all to the satisfaction of the Responsible Authority.

1. Car parking must be allocated in the following way:
   • One car space within the basement car park allocated to the caretaker of the student accommodation facility.
   • Two car spaces within the basement allocated to the retail tenancies (one per tenancy) including the accessible space.
   • All other spaces allocated to residents of the student accommodation.

1. Before the development is occupied, the provision and design of bicycle parking facilities must comply with Clause 52.34 of the Glen Eira Planning Scheme and AS2890.3-2015 (including the type, location, layout, access paths, signage) or otherwise to the satisfaction of the Responsible Authority.

1. Before the building is occupied, the areas set aside for the parking of vehicles and access lanes as shown on the endorsed plans must be:
   1. fully constructed.
   2. properly formed to such levels that may be used in accordance with the plans.
   3. surfaced with an all-weather surface.
   4. drained and maintained in a continuously usable condition.
   5. clearly marked to show the direction of traffic along the driveway

all to the satisfaction of the Responsible Authority.

1. Before the development is occupied, a Car Stacker Management Plan (CSMP) to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the CSMP will be endorsed and will then form part of the permit. The CSMP must include the following:
   1. Allocation of car spaces according to vehicle size and type.
   2. Ongoing maintenance of the car stacker system, by the owner of the land.
   3. Instructions to occupiers how to operate the car stacker system.
2. The provisions, recommendations and requirements of the endorsed Car Stacker Management Plan must be implemented and thereafter complied with to the satisfaction of the Responsible Authority and must not be varied except with the written approval of the Responsible Authority.

1. Before the development starts, a Public Realm Management Plan to upgrade the footpaths of Neerim and Murrumbeena Roads and Melbourne Street to match or respond to the public realm treatments of the Murrumbeena Neighbourhood Centre and Murrumbeena Station must be submitted to and approved by the Responsible Authority. When approved the plan will be endorsed and will then form part of the permit. The plan must be prepared by a suitably qualified urban design professional and must be drawn to scale and dimensioned. The plan must include:
   1. Plans, elevations, treatments and materials schedules.
   2. A description of proposed works, including landscaping, surface treatments, and street furniture (signage, bins, seats, bicycle facilities, gates, fences and the like, including measures to comply with the conditions imposed by the Head, Transport for Victoria).
   3. Details of water sensitive urban design if applicable.
   4. A plan defining the area the works are to be undertaken.
   5. Vehicle and pedestrian access arrangements including any signage or safety measures.
2. Before the development is completed, the requirements of the endorsed Public Realm Management Plan must be carried out and completed to the satisfaction of the Responsible Authority.

1. Before the building is occupied, provisions ensuring the space is useable throughout the year and in a range of weather conditions must be demonstrated to the satisfaction of the Responsible Authority.
2. Before the building is occupied, lighting details ensuring that the lighting does not impact on the amenity of the bedrooms facing directly onto the communal open space must be submitted to and approved by the Responsible Authority. Once approved, the lighting details will be endorsed and will then form part of the permit. Before the building is occupied the approved lighting details must implemented to the satisfaction of the Responsible Authority and thereafter maintained to the satisfaction of the Responsible Authority.
3. Before the building is occupied, the outdoor seating areas shown on Level 6 must be fitted with appropriate weather protection and wind proofing.

1. Before the development starts, an Acoustic Report to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the Acoustic Report will be endorsed and will then form part of the permit. The Acoustic Report must generally accord with the Acoustic Report in response to Council RFI by Energy Efficient Resources dated 25 October 2019 and must detail:
   1. Any attenuation measures required to reasonably protect residents within the building from external noise associated with the nearby railway line and major roads.
   2. Any attenuation measures required to reasonably protect residents within the building from internal noise, particularly the residents of rooms abutting the lift wells to the satisfaction of the Responsible Authority.
2. The provisions, recommendations and requirements of the endorsed Acoustic Report must be implemented and complied with to the satisfaction of the Responsible Authority and must not be varied except with the prior written approval of the Responsible Authority.

1. Before the development (including demolition) starts, a Conservation Management Strategy to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the Conservation Management Strategy will be endorsed and will then form part of the permit. The Conservation Management Strategy must identify the buildings and works to be conserved and include:
   1. All details within the Schedule of Conservation Works prepared by Bryce Raworth dated 1 April 2021.
   2. All details inherent in the retention of the fabric of 430 Neerim Road.
   3. All details in the design of the replica 'twin' and infill building to the east.
2. The provisions, recommendations, and requirements of the endorsed Conservation Management Strategy must be implemented and complied with to the satisfaction of the Responsible Authority and must not be varied except with the prior written consent of the Responsible Authority.

1. Before the building is occupied, the owner of the land must enter into an Agreement with the Responsible Authority under section 173 of the Planning and Environment Act 1987. The agreement must provide:
   1. That no person may reside in the student housing unless that person is a student, whether part time, full time or short term, or resides at the student housing in a supervisory, management or caretaker capacity;
   2. That a Student Housing Management Plan be submitted to the Responsible Authority for approval. Such plan must make provision for, among other matters, a suitably qualified full time manager to be available to the site, 24 hours a day, seven days a week (with the manager's contact details to be displayed in a manner that is visible to any person entering the site);
   3. Should the land cease to be used for student housing, a new planning permit will be required for an alternative use. Any dispensations for car parking given to the student housing development are not transferable to any proposed alternative use of the land. Any subsequent use will be assessed in accordance with the car parking requirements of the Glen Eira Planning Scheme;

The owner of the land must pay the Responsible Authority's reasonable legal costs and expenses of this agreement, including preparation, review, execution and registration on title.

A memorandum of the Agreement is to be entered on Title and the costs of the preparation and execution of the Agreement and entry of the memorandum on Title must be paid by the landowner.

1. Before the use starts, a Student Housing Management Plan to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. Once approved, the Student Housing Management Plan will be endorsed and will then form part of this permit. The approved Student Housing Management Plan must be implemented and complied with to the satisfaction of the Responsible Authority. The Plan must provide details of the following:
   1. A standard lease for the student dwellings.
   2. The nature of the management of the building and contact details and experience of the caretaker/live in manager.
   3. The means by which car spaces are to be allocated and a register that documents allocation of these spaces.
   4. Rules regarding occupancy and behaviour of residents and visitors and grievance procedures.
   5. Inter-resident disputes resolution process.
   6. Social activity/community engagement protocols.
   7. Cultural awareness procedures.
   8. Critical Incident Management Protocols.
   9. Emergency and evacuation procedures;
   10. Maintenance and cleaning schedules.
   11. Details of management procedures over holiday periods.

The approved Student Housing Management Plan must be permanently displayed in a common area of the student housing building.

1. A caretaker or live-in manager must be employed in association with the use of the land for Student Housing hereby approved. The role of the manager will include ensuring that the student housing does not cause or contribute to detrimental amenity impacts on the surrounding area.

1. Before the development starts, including any demolition and excavation, a Construction Management Plan (CMP) to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the plan will be endorsed and will then form part of the permit. The CMP must show:
   1. Delivery and unloading points and expected frequency.
   2. Truck haulage routes, circulation spaces and queuing lanes.
   3. Details how traffic and safe pedestrian access will be managed. These must be in the form of a Traffic Management Plan designed by a suitably qualified traffic practitioner.
   4. A liaison officer for contact by owners / residents and the Responsible Authority in the event of relevant queries or problems experienced.
   5. An outline of requests to occupy public footpaths or roads, or anticipated disruptions to local services.
   6. Any requirements outlined within this permit as required by the relevant referral authorities.
   7. Hours for construction activity must only occur within the following hours:
      • 7am to 6pm -Monday to Friday.
      • 9am to 3pm -Saturdays.
      • No construction on Sundays or public holidays.
   8. Measures to control noise, dust, water and sediment laden runoff.
   9. Measures to ensure that sub-contractors/tradespersons operating on the site are aware of the contents of the Construction Management Plan.
   10. Any construction lighting to be baffled to minimise intrusion on adjoining lots.
2. All construction (including demolition and excavation) must be carried out and complied with in accordance with the approved Construction Management Plan to the satisfaction of the Responsible Authority and must not be varied except with the prior written consent of the Responsible Authority.

1. Before the development starts, a Sustainable Management Plan must be submitted to and approved by the Responsible Authority. Once approved the Sustainable Management Plan must be endorsed and will then form part of the permit. The Sustainable Management Plan must be generally in accordance with the Environmentally Sustainable Design Report prepared by Sustainable Development Consultants dated March 2021 (Job No. S3969 ESD.V2), and must address:
   1. Solar heat loading to the north facing habitable room windows.
   2. The objectives and strategies of clause 15.01-2S of the Glen Eira Planning Scheme.
2. The Sustainable Management Plan must be implemented and complied with to the satisfaction of the Responsible Authority and must not be varied except with the written approval of the Responsible Authority.

1. Before the building is occupied, a Waste Management Plan (WMP) to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. Once approved, the WMP will be endorsed and will then form part of the permit. The WMP must relate to the collection and disposal of waste and recyclables associated with the uses on the site to the satisfaction of the Responsible Authority. The WMP must provide for the following:
   1. Provision of separate bin storerooms for the student housing use and the commercial use.
   2. Scaled drawing noting bin room dimensions and bin configuration.
   3. A swept path where a waste truck is collecting directly from within the property boundaries.
   4. Incorporation of a food organics recycling stream.
   5. Consideration of space requirements for the future 4th glass-only stream to be incorporated in the design of the bin storage rooms.
   6. The collection of waste associated with the uses on the land, including the provision of bulk waste collection bins or approved alternative, recycling bins, the storage of other refuse and solid wastes in bins or receptacles within suitable screened and accessible areas to the satisfaction of the Responsible Authority. Commercial waste bins being placed or allowed to remain not in view of the public, and receptacles not emitting any adverse odours.
   7. Recycling services must comply with the relevant EPA noise guideline relating to the time of collection.
   8. Appropriate areas of bin storage on site and areas of waste bin storage on collection days.
   9. Details for best practice waste management once operating.
2. The provisions, recommendations and requirements of the endorsed Waste Management Plan must be implemented and complied with to the satisfaction of the Responsible Authority and must not be varied except with the prior written consent of the Responsible Authority.

1. Before the building is occupied, all screening shown on the endorsed plans must be erected and thereafter maintained in accordance with the endorsed plans. The screening measures as shown on the endorsed plans are not to be altered or removed without the written consent of the Responsible Authority.
2. All security alarms or similar devices installed on the land must be of a silent type.
3. All pipes, fixtures, fittings and vents servicing any building must be concealed in service ducts or otherwise hidden from view to the satisfaction of the Responsible Authority.
4. No plant, equipment, services or architectural features other than those shown on the endorsed plans are permitted above the roof level of the building without the prior written consent of the Responsible Authority.
5. Before the building is occupied, the walls on the boundary of adjoining properties must be cleaned and finished in a manner to the satisfaction of the Responsible Authority. Painted or bagged walls must be finished to a uniform standard and unpainted or unrendered walls must have all excess mortar removed.

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

1. Prior to commencement of the buildings and/or works, amended plans must be submitted to and approved by the Head, Transport for Victoria. When approved by the Head, Transport for Victoria, the plans must be endorsed by the Responsible Authority and will then form part of the permit. The plans must be drawn to scale with dimensions. The plans must be generally in accordance with the plans date stamped 16/03/2021 and annotated Ground Floor Plan, Sheet A103 Revision HH but modified to show:
   1. A fully dimensioned footpath and canopy along Murrumbeena Road.
   2. The setback of the canopy along Murrumbeena Road no less than 750mm from the kerb.
   3. The height of the canopy no less than 3.0m above the footpath.
   4. The removal of the benches located along Murrumbeena Road frontage.
2. The canopy must be designed to be detachable if required without impacting on the structural integrity of the building.

1. This permit will expire if one of the following circumstances applies:
   1. The development is not started within three years of the date of this permit.
   2. The development is not completed within five years of the date of this permit.
   3. The use is not started within two years of the completion of the development.

The Responsible Authority may extend the permit if a request is made in writing in accordance with Section 69 of Planning and Environment Act 1987.

[1] Section 4(2)(d) of the Victorian Civil and Administrative Tribunal Act 1998 states a failure to make a decision is deemed to be a decision to refuse to make the decision.

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

[3] Vivace Property Group Pty Ltd v Glen Eira CC [2021] VCAT 24.

[5] At clauses 11.03-1S, 16.01, 17.02 and 18.01.

[13] Reid v Nillumbik SC (No.3) [2011] VCAT 925, [10] - [24} (Senior Member Byard). Senior Member Byard uses the terms 'classic' and 'amending' refusal. See also Sprut v Stonnington CC [2012] VCAT 1675, [11] - [18] (Deputy President Dwyer), referring to Reichert v Banyule City Council (1996) VICCAT 44.

[14] Amoco Australia Limited v City of Berwick [1983] 1 PABR 166 ('Amoco'), 169 (S Morris (Chair) A Kinder and H W Watt).

[15] Sprut v Stonnington CC [2012] VCAT 1675, [18] (Deputy President Dwyer).

[16] Zumpano v Banyule City Council [2016] VSC 420 [37] (Garde J).

[18] Reichert v Banyule City Council (1996) VICCAT 44

[19] Sprut Pty Ltd v Stonnington CC [2012] VCAT 1675 [15]-[18] (Dwyer DP); Batsis Nominees Pty Ltd v Hobsons Bay CC [2009] VCAT 928; and for example, Siciliano v Kingston CC [2018] VCAT 125 [54] (Senior Member Potts).

[20] Reid v Nillumbik SC (No.3) [2011] VCAT 925 [10] (Senior Member Byard).

[21] [2012] VCAT 1675.

[23] Unreported P86/2205, and cited with approval in many subsequent Tribunal decisions.

[24] Sprut Pty Ltd v Stonnington CC [2012] VCAT 1675 [16].

[25] Reid v Nillumbik SC (No.3) [2011] VCAT 925 [10] (Senior Member Byard).

[26] Amoco Australia Limited v City of Berwick (1983) 1 PABR 166.

[27] Sprut Pty Ltd v Stonnington CC [2012] VCAT 1675 [18].

[28] (1983) 1 PABR 166 at 169 (Senior Member Morris, as he then was), cited in Sprut Pty Ltd v Stonnington CC [2012] VCAT 1675 [12] (Dwyer DP); Zumpano v Banyule City Council [2016] VSC 420 [23] (Garde J).

[29] [2016] VSC 420.

[30] [2015] VCAT 1091.

[31] [2016] VSC 420 [24] citing [2015] VCAT 1091 [9] (Member Taranto) which cited Benc v City of Doncaster & Templestowe Unreported P86/2205.

[32] This does not include the submissions of Ms Hewitt and Mr Manton and the Statements of Grounds of Mr MacFadyen and Mr De Sousa as we regard the issue of overlooking into their properties is not discussed in the previous decision.

[37] Parkhouse v Macedon Ranges Shire Council [2004] VCAT 2468

[41] At paragraph 30 of her Statement of Evidence.

[42] At paragraph 13 of his Statement of Evidence.

[43] At paragraph 22 of its Substantive Submissions.

[46] At clauses 11, 15, 16, 17, 21.04, 21.06, 21.10, 22.01 & 22.07.

[48] 348-354 Hawthorn Road Pty Ltd v Glen Eira CC [2020] VCAT 1211.

[50] At clauses 55.04-6 and 58.04-1 respectively.

[51] To provide an above-ceiling cavity for infrastructure to serve the upper floors.