1. The State heritage conservation policy includes the strategies of encouraging 'appropriate development that respects places with identified heritage values and creates a worthy legacy for future generations' and ensuring 'an appropriate setting and context for heritage places is maintained and enhanced'.[25]
2. The purpose of the Heritage Overlay (Clause 43.01) includes 'To ensure that development does not adversely affect the significance of heritage places'. Relevant decision guidelines include whether the location, bulk, form or appearance of the proposed building 'will adversely affect the significance of the heritage place' and 'is in keeping with the character and appearance of adjacent buildings and the heritage place'.
3. A strategy in the heritage provisions of the MSS is to:
   • Protect buildings, streetscapes and precincts of heritage significance from the visual intrusion of built form both within places and from adjoining areas.[26]
4. The objectives of the Development Guidelines for Sites Subject to the Heritage Overlay include:
   • To retain significant view lines to, and vistas of, heritage places.
   • To preserve the scale and pattern of the streetscape in heritage places.
   • To ensure that additions and new works to a heritage place respect the significance of the place.[27]
5. Clause 22.02-5.7 has general and specific requirements regarding new development, alterations or additions. If there is a conflict or inconsistency between the general and specific requirements, the latter prevail.[28]
6. The general requirements include encouraging the design of new development, alterations or additions to contributory element to:
   • Respect the pattern, rhythm, orientation to the street, spatial characteristics, fenestration, roof form, materials and heritage character of the surrounding historic streetscape.
   • Be articulated and massed to correspond with the prevailing building form of the heritage place or contributory elements to the heritage place.
   • Be visually recessive and not dominate the heritage place.
   • Be distinguishable from the original historic fabric.
   • Not remove, cover, damage or change original historic fabric.
   • Not obscure views of principal facades.
   • Consider the architectural integrity and context of the heritage place or contributory elements.[29]
7. There is encouragement for setbacks from the principal street frontage to be similar to those on adjoining contributory buildings. The visibility of new additions is to be minimised by (amongst other things):
   • Locating ground level additions and any higher elements toward the rear of the site.
   • Encouraging upper level additions to heritage places to be sited within the 'envelope' created by projected sightlines (for Contributory buildings refer to Figure 2...).
8. Relevant specific requirements include:

Encourage new buildings and additions on a site with frontages to two streets, being either a corner site or site with dual frontages, to respect the built form and character of the heritage place and adjoining or adjacent contributory elements to the heritage place.

Industrial, Commercial and Retail Heritage Place or Contributory Elements

• Respect the scale and form of the existing heritage place or contributory elements to the heritage place by being set back from the lower built form elements. Each higher element should be set further back from lower heritage built forms.
• Incorporate treatments which make them less apparent.[30]

1. The relationship between the general and specific requirements of Clause 22.02-5.7, and their application to the proposal, was a particular focus of submissions and evidence. We agree with Mr Rantino that the general and specific requirements should be read together and the general provisions only overridden if there is an inconsistency or conflict with the specific provisions. However, there appears to be a disconnect between the policy and the building typology we are considering. That is probably a result of the drafting of policy to apply to residential buildings, which comprise most of the heritage context of the City of Yarra. Although the general requirements purport to apply to all types of new development, the Figure 2 sightlines all relate to single storey dwellings.
2. The inclusion of specific requirements for industrial, commercial and retail heritage places seems to acknowledge that additions to such buildings will be different. However, it is questionable whether they are relevant to the type of building we are considering. It is arguable whether the proposal incorporates 'treatments' to make the upper level addition 'less apparent'. It does not have 'each higher element... set further back from lower heritage built forms', unless 'each higher element' is deemed to be a grouping of levels. In that case, Levels 3-6 and Level 7 could be said to be progressively set back. In any case, we agree with Mr Lovell that the requirement does not, or at least should not, call for what is commonly referred to as a 'wedding cake' envelope.
3. The specific requirements call for upper level additions 'to respect the scale and form of the existing heritage place by being set back'. That does not mean the addition will necessarily be visually recessive (which is a general requirement). Furthermore, while the provisions of Clause 22.02-5.7 are stated to be 'requirements', they are phrased in terms of encouragement and they are certainly not mandatory or prescriptive. They are policy provisions to guide the exercise of discretion under the permit trigger at Clause 43.01-1. They need to be applied sensibly and in the context of strategic considerations that encourage a building with at least 5-6 storeys in this activity centre location.

1. It goes without saying that five levels of built form rising above a two storey heritage building will change the context of the heritage building and will not be in any way concealed. The issue is not about visibility, per se, but whether the addition will adversely affect the significance of the heritage building. That involves a consideration of whether the addition will dominate, overwhelm or distract from the heritage building, such that it diminishes an understanding of its significance.
2. We are satisfied that the addition will not adversely affect the significance of the heritage building for the following reasons:

1. The new development will be clearly distinguishable from the original historic fabric, particularly in terms of materials. 2. The strength of the heritage building will be maintained. We do not agree with Mr Epstein that the retained building will appear as 'just a shell'. A substantial amount of its original fabric is to be retained, including the four walls. That will enable a passer-by to readily understand the three-dimensional character of the heritage building.

1. None of the heritage experts suggest that there is any rule about an appropriate ratio of old and new development. The overall height of the building - whether it is eight storeys or has two levels removed (as recommended by Mr Trethowan) - is of limited consequence in terms of an appreciation of the heritage building. In that respect, we do not agree with Mr Trethowan that the overall height of the proposal will dominate the two storey heritage building. The prominence of the addition does not equate with dominance, or overwhelming the host building.

1. The proposal adopts a variety of techniques to achieve an acceptable integration between the old and the new. The setbacks of the addition will create a physical independence, reinforcing the strength of the two storey form of the heritage building. The use of visually lightweight curtain wall glazing, with curved edges, is a suitably restrained contrast to the solid masonry base with a hard edge. The curved edges and rebates (on three of the elevations) provide a good contrast with the conventional rectilinear form of the heritage building. The rebates and fins will break up the curtain more glazing. The fins relate to the vertical elements of the existing façade. As indicated on the materials board provided during the hearing, the finishes of the addition suitably reference the heritage building. The glazing and vertical fins have similar colour tones to the red brick and grey render of the heritage building. The plan should be revised to ensure there is sufficient use of the fins with a burnished copper colour. The dark columns will be suitably recessive, noting that on the Smith Street elevation they are in front of the glass façade. 2. To the extent that Clause 22.02-5.7 can be usefully applied, the proposal appropriately responds to the pattern and rhythm of the facade of the heritage building.
2. Lastly, we note that mention was made during the hearing of the prospect of reproducing the original steel framed windows for the heritage building. Mr Lovell saw that as the preferred outcome, although costly. Mr Raworth saw it as optional. The presentation of the heritage building would be enhanced by reproducing the original windows, but they are not included in the scope of works approved by the existing permit for demolition and works to the heritage building. We have not been convinced that such works are essential to achieving an appropriate outcome on the review site that does not unreasonably impact on the character and significance of the heritage place.

Impact on the significance of the Smith Street precinct HO333

1. The review site is at the northern end of HO333. Mr Lovell suggests that it was included because of a consistency in scale and built form, as it is not a building that fits within the predominant Victorian and Edwardian era character of the precinct, nor is it a building that evidences the strong retail and commercial activity. Whatever the reason for inclusion, we agree with Mr Raworth that this is a mixed heritage environment. It is not highly sensitive, especially because the land immediately to the north is not in a Heritage Overlay.
2. We have already noted that the general requirements in Clause 22.02-5.7.1 call for additions to respect various features of 'the surrounding historic streetscape', including the fenestration, roof form, materials and heritage character. The specific provisions do not vary that. Nevertheless, it is difficult to be prescriptive about those features when a different type of building is proposed.
3. A strategy in the MSS is to 'protect the heritage skyline of heritage precincts',[31] but a 5-6 storey building, as is encouraged in this location, will inevitably change the skyline. In heritage terms, the difference between an eight storey building, and a building with a similar form and detailing but two levels less, is not determinative.
4. It was the evidence of Mr Lovell that the proposal will have no adverse impact on the significance of the precinct, for reasons including:

1. The addition presents as a structure which is respectful of its setting. 2. The addition would be clearly seen in longer views up and down Smith Street, but will not compromise the ability to read the heritage building as part of the heritage streetscape.

1. In closer, oblique views the strong red brick facade of the heritage building will remain the dominant element.

1. The addition will have no impact on the consistency in presentation of the heritage fabric which supports the significance of HO333.
2. We are persuaded by Mr Lovell's evidence. In particular, there will still be the ability to read the precinct in a linear way, appreciating the essential two storey heritage character.

Impact on the adjoining heritage precinct HO334

1. The Council and Respondents maintain that the proposal does not effectively respond to the South Fitzroy precinct, especially comprising the fine grain Edwardian development along Gore Street in the vicinity of the review site. Mr Rantino submits that the presentation of the four nearby dwellings now involves an absence of a large built form in the backdrop and the proposal will have a negative impact on the appreciation of the dwellings. He contends that the proposal will also impact 'the whole experience' of people in this important part of the South Fitzroy precinct. Mr Trethowan's evidence was that the nearby single storey dwellings will be overwhelmed by the proposal and that there will also be an adverse impact in terms of views from Leicester Street and the significant buildings to the southwest (such as the former church hall and priest's house). He considers that the proposed built form is too complicated in the southwest corner and the whole west interface should be treated consistently, given it is all adjacent to HO334.
2. The proposed addition will obviously be visible from various vantage points within HO334, but we are not persuaded it will have any adverse impact on the significance of the precinct. On that matter, we note Mr Lovell's evidence that:

1. Along the length of the Smith Street precinct (HO333), the interface of commercial and retail properties and the predominantly residential built form to the west (in HO334) is of visual and physical contrast, sometimes with abrupt transition. There is already a marked transition from taller and larger, to lower and finer forms. Immediately to the southwest of the review site, such a transition is less evident given the larger MacRobertson factory buildings, located in both precincts. 2. The proposed building responds to the interface by stepping back in the northwest corner, adjacent to the four dwellings. As the contribution of the four dwellings to HO33 is primarily associated with their principal facades and main roof forms fronting Gore Street, the stepped interface removes any concern that the new building will overwhelm or diminish that contribution.

1. More broadly in Gore Street, there is already quite a mixed built form, with a number of large factory buildings (many converted to apartments) amongst traditional Victorian and Edwardian terraces and villas. An eight storey building will not dominate the area such that it significance will be diminished.
2. Our inspection confirmed Mr Lovell's observations. The juxtaposition of tall and low-rise built form is not new. It is part of the history of Fitzroy. HO334 is by no means principally comprised of cottages. There is substantial built form historically associated with the MacRobertson factory complex, as well as new tall buildings. As noted earlier in these reasons, there is the prospect of redevelopment of 450 Gore Street.
3. The significance of HO334 does not relate to whether or not higher built form can be seen beyond the precinct. The proposed building will be prominent in the backdrop from various vantage points in H0334, in a similar way to the 'Haus' building is prominent in views down Leicester Street. Our finding is that changes to the backdrop will not alter the appreciation, or contribution to HO334, of the four dwellings or any other buildings in HO334.

WILL THERE BE ANY UNREASONABLE OFF-SITE AMENITY IMPACTS?

1. Off-site amenity impacts are generally measured in terms of visual bulk, overlooking and overshadowing. The review site has a direct interface with four dwellings located to its west, which have their frontage to Gore Street, and which are separated from the review site by a three metre wide laneway. The immediate interface therefore is between the rear yards of these four properties, and the western wall of the existing and proposed buildings, separated by a laneway. Outbuildings in the very rear of three of these four properties provide a further level of separation from potential viewing locations in these four residential properties. We appreciate the opportunity provided by residents of two of these four dwellings to enter their rear yards and observe the existing conditions.
2. We make a few observations about this context. The four residential properties each have fairly small areas of secluded private open space, which primarily have an outlook to the east, towards the review site, and to the north, towards Westgarth Street. To the south of these four residential properties at 450 Gore Street is a warehouse building, which is constructed to the extent of its northern boundary with a relatively high wall (around 5.0 metres). This existing wall restricts a southerly outlook, particularly from the southern most of the four residential properties. During the course of the hearing, expert witnesses called by the Applicant surmised that a four-five storey development may be possible at 450 Gore Street.
3. Similarly, the extent to which the northern outlook provides a benefit varies between the four residential properties. On the northern most residential property the northern interface is to the public realm in Westgarth Street, and so provides a good outlook. For the other properties vegetation and outbuildings play varying roles in restricting the outlook to the north. It was also our observation that the outbuildings in the rear of three of four of these residential properties will do little if anything to obstruct the view of the proposed development on the review site, as they only partially obscure the view of the existing building on the land, and if anything 'push' the usable secluded private open space further away from the review site, where a broader view of upper forms will be appreciated.
4. We note that neither Mr Alexander or Mr Sheppard have inspected the rear of these residential properties, either prior to the hearing, or on the accompanied inspection. We consider this to be a matter that reduces the weight to be given to their evidence, given the extent to which we were informed by inspecting the rear of two of these properties.
5. The four residential properties are located in a Neighbourhood Residential Zone, and affected by a precinct based Heritage Overlay. As such, expectations exist that the character of these four residential properties will likely experience only incremental change into the future. As the review site is also affected by a Heritage Overlay, there would also be an expectation that the presence of this Overlay may temper built form outcomes on the review site.
6. The final important observation to make is the fact that the rear of these four residential properties have a direct interface with a significant parcel of land, within the Commercial 1 Zone and a higher order activity centre, that abuts a tram line. There must therefore be a reasonable expectation, informed by the provisions of the Yarra Planning Scheme, that the amenity enjoyed by these four residential properties, and others with an interface to this activity centre, will be impacted by the reasonable use and development within this activity centre. These impacts will include an impact by built form.
7. We have had some difficulty determining what is an appropriate level of built form that should be viewed from these rear yards, or the extent to which visual bulk could and should intrude into one's amenity in this interface location. We are provided with limited guidance by the Yarra Planning Scheme, except for:

1. Strategy 17.2 in Clause 21.05-2 which encourages 5-6 storeys in an activity centre (as set out earlier in these reasons); 2. The further strategy in Clause 21.05-2 to 'require development within Yarra's activity centres to respect, and not dominate existing built form;'

1. The decision guidelines of the Commercial 1 Zone[32] which call for a consideration of the interface with adjoining zones, especially the relationship with residential areas, and specifically require a consideration of the overlooking and overshadowing as a result of buildings and works affecting land in a Neighbourhood Residential Zone;

New non-residential use and development within Business and Mixed Use and Industrial Zones are designed to minimise noise and visual amenity impacts upon nearby, existing residential properties.[33]

Limit the impact of new development on the amenity of surrounding land, particularly residential land.[34]

1. The Council's policy at Clause 22.07 relating to Development Abutting Laneways, which includes the following policy:

Development respect the scale of the surrounding built form.

1. We are also not persuaded that either of the expert witnesses addressing this issue have got the balance quite right. It is Mr Alexander's evidence that a six metre setback could be provided to the entirety of the upper levels, so long as no additional shadowing occurs after 11:00am at the equinox. While Mr Alexander in his written evidence supports a building of only 5-6 storeys in height, his oral evidence conceded that a taller building would be possible with the right urban design approach. Taking Mr Alexander's written and oral evidence as a whole, this would result in a considerable amount of increased built form visible from these adjoining properties, than that currently proposed in the plans which are before us. Depending on the shadow outcome, it could result in a high wall being setback 9.0 metres from the rear boundaries of these residential properties. In our view such an outcome would certainly provide an unreasonable level of built form and visual bulk to these adjacent properties.
2. Mr Sheppard's evidence is to support the proposed range of setbacks contained in the substituted plans. We set out below those setbacks from the western boundary, adjacent to the four residential properties to the west. In doing so we note that the ground and first level are contained in the existing heritage building which is built to the boundaries of the review site, and the second floor is an open car park and therefore has no real setback or height to note.

1. Mr Sheppard's evidence is that these heights and setbacks from the residential interface are appropriate having regard to:

1. The positioning of the four residential properties at the edge of a major activity centre; 2. The intervening role played by outbuildings in the rear yards of three of the residential properties;

1. The level of compliance of the proposed building with a B17 envelope[38], when drawn from the side of the rear outbuildings in the residential properties that is furthest from the review site; and,

1. The role that vegetation plays in filtering views from the one residential property without a rear outbuilding;
2. We are not persuaded by the evidence of Mr Sheppard on this matter, as we are not persuaded as to his methodology. We make this finding for the following reasons. Firstly, as we have observed, in our view the location of rear outbuildings in three of the four residential properties to the west of the review site is not a limiting factor to views of the proposed development. Indeed it is our observation that these outbuildings have the opposite effect of pushing the secluded private open space further into these residential properties, thus allowing a better view of the proposed upper levels. Secondly, we are not persuaded that the application of a B17 envelope in the manner proposed is reasonable in the context where the outbuildings in the rear of the residential properties have such a limited affect on the ability to view the proposed built form. We also note that where there is no rear outbuilding on one of the residential properties, the placement of the B17 envelope on the rear residential boundary reveals a substantial incursion into this envelope by the proposed development on the review site.
3. Thirdly, we are not persuaded that the use of the B17 envelope is entirely useful here, given the existing condition of a 9.55 metre high boundary wall on the review site, and the overall width of the proposed built form. Fourthly, the vegetation that exists in the rear of these residential properties is deciduous, and as such provides very limited filtering of views towards the review site at the time of our inspection.
4. During the hearing we sought to test with Mr Sheppard the range of setbacks that might prevail if this were an empty site, and a residential development might occur on the review site at this interface. In reply Mr Sheppard informed us of built form controls that occur at such an interface at another location covered by the Moreland Planning Scheme. During the course of the hearing we explored similar controls that apply at the interface between residential properties and activity centres in the Darebin Planning Scheme. We understand that such controls cannot be applied here, but they have been useful in informing us as to the reasonable expectations in this type of activity centre location.
5. We also consider that we can be guided in part by policy within the Yarra Planning Scheme. As previously identified, policy encourages a 5-6 storey form on sites within an activity centre location such as this, with higher built form allowed depending on a range of factors. While some of these factors apply to the proposed development of the review site, the presence of the Heritage Overlay to all properties at this interface might also be seen as a limiting factor. In this context we find that the policy reference to a 5-6 storey height might be one factor that assists to indicate the extent of built form that should be visible from the rear yards of the adjacent residential properties.
6. Ultimately we have found that the proposed development will result in an unreasonable level of visual bulk to present to the rear yards of the four residential properties to the west of the review site. The most concerning aspect of the proposal, from our perspective, is the fact that from these rear yards, each level of the building, aside from the very top level which is substantially set back, will be able to be read. Further, while only seven storeys will be visible from this interface, the height of the seventh storey (Level 6) parapet is 26.3 metres, which is the equivalent height of an eight storey residential building with a significant parapet.[39] The ability to read each level, when combined with the overall height of the visible form, we consider will likely contribute to a significant amount of visual bulk.
7. We note that the existing building on the review site, with a boundary wall of 9.55 to 10.85 metres in height, already contributes a significant amount of visual bulk to the outlook from the adjacent residential properties. Such a wall height is equivalent to the height of a three storey building. As observed by Mr Sheppard, if this were an empty site, he would not contemplate a building taller than three storeys to the laneway boundary. Further, we note that built form controls in other similar activity centre interface locations, do not allow the construction of a three storey boundary wall on the activity centre site in this very context.
8. Given the weight of policy that encourages development of the review site with an office building, we consider it appropriate to allow a small projection of built form to be viewed above the existing boundary wall. In our view, such a projection is provided by the proposed height and setback of Level 3 (the fourth storey). This wall at the setback and height already noted, will have a discernible visual presence, as illustrated on the sightline diagrams, particularly that drawn from the secluded private open space of 460 Gore Street. We also note that the parapet height to Level 3 will need to be increased by 200mm to provide the soil volumes required to support the planter box proposed in this location.
9. We have decided that a fair and balanced outcome is for no built form to be visible above the Level 3 parapet, on the sightline as drawn from 460 Gore Street (as shown on plan SD1.10.1), while allowing for an increased parapet height to Level 3 of 200mm. We anticipate that will require the following setbacks from the western boundary of the review site:

1. Level 4 - 6.7 metres 2. Level 5 - 10.1 metres

1. Level 7 - 17.8 metres
2. We accept that these dimensions may not be entirely accurate, and that the Applicant may adopt slightly different setbacks after their more accurate analysis of the adopted sightline. We also consider that these setbacks should continue for an extent of the western interface that extends 5 metres south, of the southern boundary of 458 Gore Street. While we accept that the built form south of that point, which will be much closer to the boundary, will still be visible on angled views from these residential properties, we consider that the additional setback over a further 5 metre length to again represent a reasonable balance of the competing objectives and policy outcomes in this locale.
3. We have turned our mind as to whether such setbacks can simply be applied by way of conditions. Ultimately we have decided that we would prefer to see the resultant built form outcomes to the building as a whole through amended plans, and so support an interim decision in this instance. That interim decision will allow all parties to view and comment on the changes, prior to a final decision as to whether a planning permit will issue.
4. We now turn to an assessment of the other off-site amenity impacts. The shadow diagrams that form part of the substituted plans depict there to be no additional shadow at the equinox, though in part that is because of the extent of shadow already cast by the existing boundary wall on the review site. In any event, an outcome where there is no additional shadow at the equinox is a very reasonable outcome.
5. Ms Patterson in particular made an emotional submission regarding the potential for people within the office building to overlook the rear yards of adjacent residential properties. We consider that the setbacks required in our analysis above will ensure that people in Level 4 and above of the office building will not be able to see the residential rear yards, as their views will be blocked by the parapets of the respective levels below.
6. The potential for overlooking from Level 1 was accepted during the hearing, and all parties agreed that those windows which do overlook should be screened, noting that some of the windows in this level are not effectively used due to the positioning of the vehicle access ramp. We also consider that screening should be provided to the Level 3 west facing windows, given their separation from the residential properties by around 7 metres, and the absence of a rear outbuilding in one of the residential properties. A screening method will need to be adopted which allows for an outlook from the windows over the top of the residential properties, while not adding to the extent of bulk visible from the rear yards of the residential properties. If we determine that a permit should issue, we will apply a condition, and have faith that the Applicant and Council can together resolve an appropriate form of screening.
7. Mr Henderson raised a range of concerns in relation to the potential for off-site amenity impacts on his property at 434 Gore Street. Mr Henderson's property supports a former church hall, now used as an arts venue with various activities and performances taking place, as well as three dwellings which share a communal open space that abuts Leicester Street. We will deal with the impacts on the three dwellings first. There will be no shadow impacts on the windows or communal open space of these dwellings at the equinox. This is a more than reasonable outcome in an edge of activity centre location such as this. There will also be no unreasonable overlooking from the proposed office building, owing to the separation that will occur to the 'tower' form of around 30 metres. Further, based on this level of separation, the intervening presence of the former church hall and the row of trees with a fastigiated form at the edge of the communal open space, we find that there will be no unreasonable visual bulk impacts on the three dwellings and their area of communal open space.
8. Mr Henderson's submission, which includes letters from a number of users of his property and supporters of the venue's activities, speaks highly of the significance of the former church hall as an arts and performance space. At its highest, it was put that it has national significance. For the purpose of this assessment, we will accept that part of Mr Henderson's submission. We have not been persuaded that the proposed development of the review site will have an unreasonable impact on this arts and performance space. We make this finding for the following reasons.
9. Firstly, the extent of views available from the former church hall through windows towards the review site is significantly restricted. Where such glimpses of views can be gained, we have not be persuaded that views of a building at some distance from within another building can impact the use and amenity of an arts and performance space. We anticipate the users of this arts and performance space to be focussed on firstly, the art or performance being undertaken, and secondly the magnificent internal architectural features of the former church hall. In comparison, the fleeting appearances of a building in the distance is likely to be of marginal consequence.
10. Secondly, we have not been persuaded that the added traffic from the proposed development will impact the use of the former church hall. As we explore separately below, the proposal is to add seven car parking spaces to the review site, over the supply that existed until recently to service the two storey commercial building. As Leicester Street provides for one way traffic in an easterly direction, the seven extra vehicles that enter the site in the morning will all pass Mr Henderson's buildings, spread over a 2 hour period. We expect such an increase in traffic to be imperceptible. At the end of the day, all the additional traffic will use the eastern end of Leicester Street, and not pass Mr Henderson's buildings. There will also be extra traffic from visitors to the site exploring the area for available car parking. We note that Leicester Street between Gore and Smith Streets only provides for five on-street car parking spaces[40], and so we anticipate the prospect for such traffic to impact the arts and performance space to be low.
11. Thirdly, we have not been persuaded that the noise from an office building is likely to have any unreasonable impact on the use of the art and performance space, or the three dwellings. No plant or equipment is proposed to face Mr Henderson's properties, and even if it did, there are EPA controls in place to deal with the noise emanating from such. We agree with Mr Henderson that the office use is likely to create less of a noise issue than a residential development of the same proportions, given his experience with noise from the balconies of an apartment building to the south of his land.
12. For these reasons we find that the proposed development is unlikely to cause any unreasonable detriment to Mr Henderson's properties.
13. Subject to increased setbacks from part of the western boundary to address issues of visual bulk, and some additional screening to limit overlooking, we find that the proposal will not result in any unreasonable levels of off-site amenity impacts.

DOES THE PROPOSAL APPROPRIATELY PROVIDE FOR CAR PARKING AND TRAFFIC MOVEMENTS?

1. The land currently contains two storeys of commercial floor space, that have previously and will continue to be used for a mix of retail and office floor space. Both of these land uses are permitted as of right within the Commercial 1 Zone. Car parking for the existing land uses is provided on a rooftop car park, which will be retained at Level 2 of the proposed development. The rooftop car park currently provides 67 car parking spaces on site.
2. The application proposes the addition of five floors of new floor space, all of which is proposed to be used as office floor space. While some documentation with the application also identifies the potential for increased provision of retail floor space at ground floor, during the hearing it emerged that in fact there will be a reduction in retail floor space, as some of the previous retail floor space on the ground floor is now proposed to be used for office uses. The prospect of there being more office floor space on the ground floor, as opposed to retail floor space, is relatively uncontroversial, given that the car parking demands for both uses are not substantially different, and the office rate is marginally lower.
3. It is proposed to provide seven additional car parking spaces on site, through a reorganisation of the layout of car parking on the existing rooftop. As the application proposes the creation of 7432 square metres of additional office floor space, at a rate of 3.5 car parking spaces per 100 square metres of net floor area, a dispensation of 260 car parking spaces was sought in the application. With the conversion of some retail floor space on the ground floor to office floor space, the extent of dispensation is reduced slightly. With the additional setbacks we require from the residential interface from the west, the extent of dispensation required will be significantly reduced, though we have not been able to calculate the extent of the reduction. For the purpose of the assessment that follows, we will presume the extent of dispensation sought remains at 260 car parking spaces.
4. It is the evidence of Mr Walsh that the addition of seven vehicles accessing the on site car park will have a negligible impact on the traffic levels currently experienced in this locale, and the safe operation of the surrounding road network. There will also be additional vehicles using the surrounding road network, seeking to utilise on street car parking. Visitors to the site will be seeking to access short term car parking. It is the evidence of Mr Walsh that the peak demand for visitor car parking will be 20 spaces for the retail floor space, based on a combination of existing and new retail floor space totalling 1000 square metres. However, we note that 600 square metres of this retail floor space already exists, and so is not a new demand for short term car parking in the area, over that which has historically occurred.
5. We also note that as a result of the discussions that occurred towards the end of the hearing there may actually be less retail floor space on site than occurs at present. We are informed that a lease has been entered into with a firm that will occupy all of the office floor space on the site. Having regard to this, and the scenario where our requirement for additional setbacks from the residential interface reduces the extent of available office floor space on the upper levels, we anticipate it likely that there will be less retail floor space within the building. On this basis we find that there is likely to be no increase in retail floorspace on the site, and thus no increase in the demand for short term car parking to serve retail land uses.
6. There will be an increase in office floorspace of something less than 7432 square metres, due to the increased setbacks from the western boundary, even when accounting for the projected increase in office floorspace at ground level. It is the evidence of Mr Walsh that 10% of the car parking requirement for offices comprise visitors. Even based on the original area of office floorspace, this will result in a peak demand for 26 short term spaces in the surrounding streets.
7. It is the submissions of the Respondents, lead by Mr Vrahiotis, that the provision of additional office floorspace will result in three key impacts to the surrounding community:

1. A greater demand for short term parking by visitors to the site 2. A greater demand for long term parking by workers in the office building

1. A great level of traffic moving through the surrounding streets, looking for and at times finding car parking.

1. The additional demands for on street car parking created by the proposed development of the review site will cause detriment for residents who are seeking long term on street car parking.
2. In response to these submissions, it is our analysis, based on the evidence of Mr Walsh, that:

1. The surveyed peak demand for car parking during office hours was at midday on Friday, when 139 car parking spaces were available within a reduced survey area of 200 metres surrounding the review site. As such, there is significant capacity for the surrounding road network to accommodate the peak demand for the 24 car parking spaces that will be generated as a result of the proposed development on the review site. Significant capacity will also still exist for future developments in the surrounding precinct, which will also have different 200 metre radius catchments of surrounding streets to draw upon. Even if we adopt the figure of an additional 47 spaces put forward by Mr Vrahoistis, we note that the combination of retail and office visitors that comprise that number have peak demands at different times of the day and week. Therefore, the real peak will be much lower than that figure, and still comfortably accommodated within the current available supply. 2. Within the same reduced survey area, at the peak survey time there were only 15 long term car parking spaces available for office workers. While there is a much greater level of supply of unrestricted car parking spaces between 200 and 400 metres from the review site, these spaces are under heavy demand at present. It is therefore the evidence of Mr Walsh that the office workers who are not provided with on-site car parking will need to access the site via public transport. We will discuss this issue further below.

1. Due to the relatively low level of demand for short term parking, and relatively low supply of long term parking, the level of traffic added as a result of this proposed development can be comfortably and safely accommodated on the surrounding road network.

1. The demand for office car parking will not coincide with the peak demand times for resident car parking. The demand for parking for the office building will naturally occur during office hours. At the end of a day, when residents return looking for long term car parking, that is the time when office visitors and any workers will be departing the area.
2. We are persuaded by the evidence of Mr Walsh as we have summarised above.
3. Further, it is our finding that we should grant a permit for the large reduction in car parking sought for the workers of the office building. We make this finding for the following reasons. As we have already explored, policy at both a State and local level encourage the establishment of more commercial floorspace, including office floorspace, that provides for more jobs. Importantly, policy also seeks for such a use and development as this to be sited in activity centres, being precisely those locations which experience the highest degree of traffic congestion, and existing demand for on street car parking. The reason for such a policy intent is clear. It is the activity centres which provide a mix of uses which can support multi-purpose trips, where more than one activity can be accessed via one trip. As such, a synergy is achieved that reduces both the number of trips being made, and the overall demand for car parking.
4. Further, it is activity centres that often have the best access to transport options that provide a real alternative to the car. This activity centre is very well serviced in this regard, with a tram line running along Smith Street directly in front of the review site, a further tram line nearby in Brunswick Street, and a number of bus routes close by. The two tram lines accessible to the review site both provide convenient access to the city, and thus are convenient for office workers who could catch trains or trams to the city, and then a short tram ride out to the review site.
5. The level of accessibility of this area for workers is confirmed by census data, which shows that only 39.8% of people who work in Fitzroy travel to work by driving a car. This compares to the Melbourne Metropolitan average of 60.3%. We anticipate that a lower rate than 39.8% of workers to this part of Fitzroy will likely travel by driving a car, given the combination of a direct abuttal to a tram line, and the very restricted availability of off-site long term car parking in the surrounding neighbourhood.
6. We are persuaded that this office building on the review site is ideally located to take advantage of the high standard of nearby public transport, and provide for jobs in a location where they can be easily accessed by a range of transport options aside from the private car. As such, the proposed development will achieve a range of policy objectives that are central to shaping the desired future form of Metropolitan Melbourne. For these reasons, we find that a planning permit should issue for the reduction of car parking sought.
7. A further traffic related issue raised by Respondents is the adequacy of the provision for loading and waste storage and collection facilities on site. We agree with the submissions of Mr Vrahiotis that a full sized loading bay, as sought by Clause 52.06, should be provided on site, and that a separate waste storage area should also be provided, so that all loading activities, and waste collection, can be provided on site. We note that, at the conclusion of the hearing, the Applicant did not oppose conditions providing for such an outcome.
8. Mr Vrahiotis raised four further traffic related issues which we address as follows:

1. Clause 52.06 of the Yarra Planning Scheme does not make a requirement for motorcycle parking to be provided on site. As such, we cannot require the provision of dedicated motorcycle parking spaces, despite the persuasive arguments put forward. We did explore with Mr Walsh whether the existing car parking layout provides 'spaces' or spare room within the current layout that could be utilised by people wishing to park motorcycles. We are satisfied that, on the current layout, 'spaces' exist for at least five motorcycles, which we consider to be a more than adequate provision. 2. We are not persuaded that the laneway is likely to be used for deliveries and collection of waste, for the following reasons. Firstly, the conditions which we will apply to any permit issued ensures the provision of a fully functioning off-street loading bay and waste collection area on the review site. This loading bay will provide a high level of convenience. Secondly, as is the evidence of Mr Walsh, it is illegal for vehicles to stop or park in the laneway.

1. We note that the Council has requested that a condition of any permit issued requires the provision of hoops for the parking of bicycles on the Smith Street footpath. We consider this to be a far more convenient resource for visitors to the review site, rather than having to arrange to use part of the secure bicycle parking available for staff on site.

1. Finally, Mr Vrahiotis argues that pool cars should be required to be provided on site for staff, as any additional demand for share cars that are already provided in the surrounding neighbourhood will reduce the service available to residents. We are not persuaded that it is our role to reduce the competitive demand for a commercial service, such as share cars which are already available in this neighbourhood. We note that additional demand for such a service may require the provision of additional share cars. While we accept the submissions of Mr Vrahiotis that the additional supply of share cars will potentially take away car parking currently available for residents, we anticipate that is an inevitable outcome with a minimal impact, given the extent of development approved and encouraged in this activity centre location.

1. Prior to the hearing, Council had expressed concern that the proposed office floorspace would not receive an appropriate level of daylight. However, having reviewed the evidence of Mr Graham, the Council is now satisfied that an appropriate level of daylight will be received, so long as a condition on any permit issued requires the glass windows to have a minimum light transmittance of 32%. The Applicant agrees to such a condition. As none of the parties sought to cross examine Mr Graham, we need to give his evidence significant weight. Having regard to the Council's independent analysis and the agreed condition, we are satisfied that an appropriate level of daylight will be available to the office floors, to the extent it can be assessed at this time.
2. Mr Epstein raised a concern regarding the potential glare from the windowed elevations of the tower form. We have no guidance from the Yarra Planning Scheme as to how to assess the level of glare from a glass wall of these proportions. We note that the Council and Applicant have agreed to a condition to restrict the level of reflectivity to no greater than 15%, and that the oral evidence of Mr Alexander is that such a level is low. On this basis, we will accept the condition as agreed to between the Applicant and Council.
3. During the course of the hearing the Tribunal also raised a concern with the potential for noise from the part of the rooftop terrace immediately adjacent to the residential interface to impact on residential amenity. This is a matter which we will consider further if and when amended plans are received in response to this interim order.

1. For the reasons given above, we find that in many respects the proposed development represents an appropriate and reasonable outcome, for which a planning permit should be granted. However we are not persuaded that the proposal achieves an appropriate built form interface to four neighbouring residential properties to the west of the review site. While an appropriate outcome could be achieved by way of permit conditions, we have instead chosen to issue an interim decision to enable the plans to be amended, circulated for comment, and further considered to ensure that there are no undesirable built form or other consequences arising from the increased setbacks we seek from the residential interface. In amending the plans to provide the increased setbacks from the residential interface, as detailed at paragraph 95 of these reasons, the Applicant is also requested to:

1. Depict the same sightline as currently drawn on SD1.10.1 for 460 Gore Street; 2. Depict the additional parapet height to Levels 3/4 (as in that which extends above Level 3), in order to provide a 600mm depth to the planter box shown at Level 4, and a parapet that extends to the top edge of the planter box; and,

1. Depict the increased setback to the southern 'half' of Level 6 (being that part not further set back adjacent to the residential interface) to be 6.7 metres from the western boundary.
2. After the circulation of amended plans, and submissions from the parties, we will then issue our final decision in this proceeding.

[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 given at the hearing 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] Planning Permit PLN16/0700 issued on 22 November 2016.

[6] Clause 11.03-1 of the Yarra Planning Scheme.

[11] On the Strategic Framework Plan at Clause 21.03.

[17] Clause 22.03 (Floor Area Uplift and Delivery of Public Benefits).

[18] Richmond Icon Pty Ltd v Yarra CC (includes Summary) (Red Dot) [2011] VCAT 2175 [46]-[48].

[19] Pentas Property Investments Pty Ltd v Port Phillip CC [2005] VCAT 2196 [43].

[21] The smaller H0464 (Smith Street South Precinct) covers the southern section of Smith Street, almost the Victoria Parade.

[22] City of Yarra Review of Heritage Overlay Areas, 2007 (revised 2013). Inexplicably, the map in this study excluded the review site, but it is within the Heritage Overlay map.

[23] City of Yarra Review of Heritage Overlay Areas Appendix 8, 2007 (amended February 2017).

[24] City of Yarra Review of Heritage Overlay Areas, 2007.

[32] Clause 34.01-8 of the Yarra Planning Scheme.

[35] As dimensioned on the West Elevation.

[36] As calculated from the West Elevation and a top of wall of 32.8 AHD.

[37] The remainder of the heights are as scaled off Section B-B, and working off a laneway level of 22.15AHD, as shown on the Level 3 plan.

[38] As explained at Clause 55.04-1 of the Yarra Planning Scheme.

[39] Allowing for 4 metres for the ground floor, 3 metres for each floor thereafter, and a 1.3 metre high parapet.

[40] According to the evidence statement of Mr Walsh.