VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment LIST	vcat reference Nos. P1072/2023 & P1218/2023
Permit Application no. MPS/2018/856/A 	
CATCHWORDS	
Application to amend existing permit, Multi-storey mixed-use building, Major Activity Centre, height and built form, amenity impacts, reduced car parking provision     	
 
P1072/2023		

APPLICANT	Ballarat Street Developments Pty Ltd	

RESPONSIBLE AUTHORITY	Merri-bek City Council	

RESPONDENT	10B Brunswick Pty Ltd	

P1218/2023		

APPLICANT	10B Brunswick Pty Ltd	

RESPONSIBLE AUTHORITY	Merri-bek City Council	
RESPONDENT	Ballarat Street Developments Pty Ltd	

SUBJECT LAND	10 Ballarat Street
BRUNSWICK VIC 3056	

HEARING TYPE	Hearing	

DATE OF HEARING	5, 6, 7, 8 and 9 February 2024	

DATE OF ORDER	4 April 2024	

CITATION	Ballarat Street Developments Pty Ltd v Merri-bek CC [2024] VCAT 267	

Order
1	Pursuant to clause 64 of Schedule 1 of the Victorian Civil & Administrative Tribunal Act 1998 (Vic), the permit application is amended by substituting for the permit application plans, the following plans filed with the Tribunal:
•	Prepared by:	Cox Architecture and Breathe	
•	Drawing numbers:	TP00-01 to TP97-17	
•	Dated:	22 December 2023	

Permit amended
2	In applications P1072/2023 and P1218/2023 the decision of the responsible authority is varied. 
3	Planning permit MPS/2018/856/A is amended and an amended permit is directed to be issued for the land at 10 Ballarat Street, Brunswick in accordance with the endorsed plans and the conditions set out in Appendix A. The amended permit allows:
•	Construction of a multi-storey mixed-use development over basement car parking and a reduction to the standard car parking requirement

K Birtwistle                                                             G Chase
Presiding Member                                                 Member	

Appearances
For Ballarat Street Developments Pty Ltd 	J Sharp of counsel instructed by Colin Biggers & Paisley.  Evidence was called from:
•	Professor R McGauran, urban designer of MGS 	
For 10B Brunswick Pty Ltd 	N Tweedie SC and E Peppler of counsel, instructed by L Choi of Norton Rose Fulbright Australia.  Evidence was called from:
•	J Walsh, Traffic Engineer of Traffix Group
•	S Jordan, Town Planner of Contour Consultants 
•	C Heggan, Urban Designer of Ratio Consultants
•	B Murphy, Landscape Architect of Barry Murphy Design	
For Merri-bek City Council 	D Vorcheimer, solicitor of HWL Ebsworth Lawyers	

Information
Description of proposal	Amendment to existing planning permit (MPS/2018/856/A) which allows the construction of a multi-storey mixed-use development over basement car parking.	
Nature of proceeding	Application P1072/2023
Application under section 82 of the Planning and Environment Act 1987 – to review the decision to grant a permit. 
Application P1218/2023 
Application under section 80 of the Planning and Environment Act 1987 – to review the conditions contained in the permit.	
Planning scheme	Merri-bek Planning Scheme	
Zone and overlays	Mixed Use Zone – Schedule 1 (‘MUZ1’)
Design and Development Overlay - Schedule 18 (‘DDO18’)
Parking Overlay - Precinct 1 (‘PO1’)
Environmental Audit Overlay (‘EAO’); and
Development Contributions Plan Overlay - Schedule 1 (‘DCPO1’).	
Permit requirements	Clause 32.04-6 - Construction of two or more dwellings on land in the MUZ1.
Clause 32.04-2 - Construct a building or construct or carry out works in the MUZ1.
Clause 43.02-2 - Construct a building or construct or carry out works in the DDO18. 
Clause 52.06 - Reduce the standard car parking requirement. The car parking rate in Column B in the table to Clause 52.06 applies, due to the PO1. 	
Land description	The site is located on the northern side of Ballarat Street, Brunswick and has an area of 4,247 square metres, with a 65 metre frontage to Ballarat Street. The site is largely vacant, having been previously occupied by a two-storey commercial building used for light industrial purposes. A drainage easement runs north-south through the centre of the site, which includes a Council asset.
To the immediate west of the site is the Upfield Shared Path and the Upfield Railway Corridor.  To the immediate east is No. 8 Ballarat Street. An eight-storey mixed use development is currently under construction on the land. To the immediate north of the site is No. 17-19 Hope Street, which has approval for a nine-storey mixed use development.  
Opposite the site, on the southern side of Ballarat Street, is a private car park. Along the southern side of Ballarat Street are several single storey dwellings at No’s 23, 25, and 27 Ballarat Street.  	
Tribunal inspection	Accompanied on Day 5 of the hearing   	

Reasons
What is this proceeding about?
1	On 14 July 2020, the then Moreland City Council (now Merri-bek City Council – the ‘Council’) issued a permit for land at 10 Ballarat Street, Brunswick for the construction of an eight-storey mixed-use development over basement car parking. An extension of time was granted to the permit in August 2022. The development must now commence by 14 July 2024 and be completed by 14 July 2026.
2	On 29 November 2022 the permit applicant lodged an application to amend this permit. The amendment proposal, in summary, seeks to revise the permitted mixed-use development, providing a different spatial configuration, increase the building height, provide fewer car parking spaces and additional bicycle parking spaces, and increase the number of dwellings.
3	On 31 July 2023, Council issued a Notice of Decision to grant (‘NOD’) an amendment to the permit, subject to conditions.  
4	In the matter of P1218/2023, this proceeding concerns an application under section 80 of the Planning and Environment Act 1987 (‘the Act’) by the permit applicant (10B Brunswick Pty Ltd) for the review of a number of conditions included in Council's NOD. In the matter of P1072/2023, this proceeding concerns an application under section 82 of the Act by Ballarat Street Developments Pty Ltd (objector and developers of No. 8 Ballarat Street to the site’s east) for a review of Council's decision to issue a NOD.
5	Prior to the hearing, the permit applicant prepared and circulated amended plans of the proposal.  Key changes from the original plans considered by the Council include:
•	Deletion of one storey whereby the overall building will consist of nine storeys.  This is consistent with Condition 1a of the NOD; 
•	Removal of the green roof over the driveway along the eastern side of the review site; and
•	Increase setback from eastern boundary at Levels 7 and 8 to 12 metres. The east facing apartments at these levels have been reconfigured accordingly.
6	On the basis of the amended plans, the Council and permit applicant reached agreement on revised permit conditions that they seek to be applied should an amended permit issue.
7	There being no objection, we allowed the amended plans to be substituted and these now form those on which our decision is reached.
8	Having regard to the submissions, in our view, the key matters for determination are:
•	Is the proposal an acceptable response to the site’s physical and strategic context?
•	Will the development provide appropriate amenity for future residents?
•	Will the development have an unacceptable impact on the amenity of the neighbouring dwellings?
•	Is sufficient car parking provided and will there be any unacceptable traffic impacts?
•	Any other matters.
9	The Tribunal must decide whether an amended planning permit should be issued and, if so, what conditions should be applied.  
10	Having considered the submissions, evidence, and relevant provisions of the Merri-bek Planning Scheme (the ‘planning scheme’), we are satisfied the proposed development is consistent with and seeks to implement the purposes of the zone and overlay, particularly those related to mixed use outcomes and housing at higher densities. It will result in a net community benefit.
11	We have determined to vary the Council’s decision and direct the issue of an amended planning permit. Our reasons follow.
The proposal
12	The proposal now before us is for a nine storey development, with two levels of underground carparking. The overall building height proposed is 30.76 metres. 

Figure 1: Source: Heggan evidence
13	As faces Ballarat Street, the ground level is set back approximately 2.95 metres from the southern boundary, with its street wall overhang sited on the boundary up to Level 4. From Level 4, the building is set back between 9.8 and 10.3 metres from the southern boundary providing a residential landscaped roof garden. This setback continues up to Level 7, where there is an additional setback of between 19.3 and 19.8 metres from the southern boundary, providing an additional rooftop garden area. 
14	As faces the Upfield rail corridor, at ground level there is a variable setback from the western boundary of between approximately 6.9 metres in the south-east corner of the site, to 10.5 metres in the north-west corner. Within this ground level it is proposed to provide an extensive park area (known as Upfield Park) available to the public, and a landscaped residential entrance.  The building above ground level is then set back between 8.4 and 12.6 metres up to Level 4. 
15	To the east elevation, which was the most contentious at the hearing, the four-level street wall in the south east corner of the site abuts the adjacent eight storey residential building at No. 8 Ballarat Street. The length of this abuttal approximates 10 metres up to Level 3. At Level 4, No. 8 Ballarat Street is setback further from Ballarat Street, and the abuttal approximates four metres. The remaining length of the main residential tower component to the proposal to this east elevation, is set off the east boundary 8.9 metres up to Level 6. Levels 7 and 8 are set off the eastern boundary by 12 metres. 
16	There is a narrow two metre drainage easement to the northern property boundary, separating the proposal on the subject site from No. 17-19 Hope Street to the immediate north. 
17	Level 9, the Rooftop Service Level to 10 Ballarat Street, is to be set back slightly to the east and west from Level 8 below, with the setback to the east boundary to the parapet being 14 metres.
18	There are a total of 226 apartments proposed comprising 52 studio apartments, 127 one bed apartments, 46 two bed apartments, and 1 three bed apartment. There is 274 square metres of retail space proposed at ground level, with 81 car spaces, including five share car designated spaces proposed for Basement 1 and lower ground level, with six motorbike spaces and 280 bike spaces proposed at lower ground and ground level.
19	The “H” shaped design concept proposed allows for a significant setback for the creation of a new Upfield Park adjacent the Upfield Train Line. The footprint for this “H” shaped concept, shows four open voids to the sky of various sizes providing daylight to the internal pedestrian walkways and residential entries on each level. The majority of apartments are one bedroom, with living areas orienting either east or west onto individual outdoor terraces, and bedrooms orienting internally towards the corridors and open voids. 
20	At Basement 1 there is provision for the lift lobby, resident storerooms/storage cages, and carparking. At lower ground there is a large bike parking area on the north side, carparking, service rooms on the south side, and communal space including a gym, yoga studio, and workshop facing a sunken garden courtyard in the north-eastern corner.
21	At the ground floor, vehicular entry for both carparking and loading is located at the south-eastern corner of the site, with retail space, a “co-work” office space, and 13 apartments which either have private enclosed terraces facing the proposed landscaped park and rail line beyond, or balconies.
22	At levels above the building comprises a mix of apartments. At Levels 4 and 7 there is a communal landscaped open space area. 
23	The proposed materiality includes concrete columns, black/grey metal vertical elements, metal powder coated balustrade/fences, lightweight coloured cladding, and red/grey brick. 
is the proposal an acceptable response to the site’s physical and strategic context?
24	Ballarat Street Developments are the developers of land to the immediate east of the review site at No. 8 Ballarat Street. An eight-storey mixed use development is currently under construction on this site. The site is developed in a reverse “C” shape with a centralised communal open space area which abuts the review site. A number of dwellings within the building look into this shared central open space area.  

Figure 2: Aerial view of the review site. Ballarat Street Development site is to right of the review site Source: Jordan evidence
25	To the immediate north of the review site is No. 17-19 Hope Street. Planning Permit Application (ref MPS/2022/701) was issued by the City of Merri-Bek on 8 November 2023 and allows the construction of a multi-storey mixed-use development, use of the land for dwellings, and a reduction to the standard car parking requirement. We were advised that the approved development consists of 282 dwellings comprised within five buildings (referred to as Buildings A to E) ranging in height between six storeys (22.5 metres) and nine storeys (30 metres). The approval provides for the construction of a shared communal open space corridor along the shared path/railway corridor.
26	To the immediate west of the land is the Upfield Shared Path and the Upfield Railway Corridor. 
27	More broadly, the site is located within an area of the Brunswick Activity Centre which is transitioning from its former industrial land uses to a mixed use, predominantly residential precinct. The award-winning Nightingale development is located further to the north, as are other similar developments along the Upfield rail corridor. Contextually, the precinct is one that is transitioning, has emerging built form in the range of eight storeys or so, and builds on its highly accessible location to provide diverse housing product.
28	This emerging physical change reflects the areas designation within the Brunswick Activity Centre, which together with Coburg and Glenroy, is designated in the Municipal Planning Strategy as one of the municipality’s larger activity centres, and one which is expected to accommodate the most significant change of all activity centres.
29	There is no dispute between the parties that the site’s redevelopment at some scale is consistent with both State and local planning policy by supporting the continued growth and diversification of a major activity centre and facilitating increased and diverse housing in a defined housing change area.
30	The imposition of the MUZ to the land supports more intensive development of the land. The purpose to this zone includes to provide for a range of uses which complement the mixed-use function of the locality, to provide for housing at higher densities, and to encourage development that responds to the existing or preferred neighbourhood character of the area. 
31	In summary, the site is within a part of the municipality identified for substantial change. The relevant policies and provisions encourage and facilitate a transition to a higher density mixed-use environment. An increased presence of residential development is sought, in a variety of forms to provide dwelling diversity to respond to differing household needs.  
32	While there was some peripheral debate about the altered housing typology mix now proposed, with a greater proportion of small studio apartments as compared with the existing approval, we are satisfied that the proposed housing stock will meet increasingly diverse needs, by more closely aligning with demographic data for the city and through the Build-to-rent model, providing the opportunity for a wider range of income groups to have access to housing in such a well-serviced location.
33	DDO18 applies to the Brunswick Activity Centre – Sydney Road and Upfield Corridor. The DDO18 contains a number of design objectives including:
•	To encourage a new mid-rise built form character with lower built form at the interfaces with the adjoining low rise residential areas.
•	To complement the valued built form and heritage character along Sydney Road and respect the form, design and context of buildings of individual heritage significance in the precinct.
•	To establish a new cohesive built form character in off-corridor locations to the east and west of Sydney Road to achieve an appropriate balance between a sense of enclosure and openness and to ensure new street walls reinforce the existing character of street walls in nominated off-corridor streets.
•	To protect the amenity of existing and proposed public open spaces and key pedestrian streets, and maintain reasonable amenity for residential properties within and adjacent to the activity centre.
34	With respect to building height the DDO18 provides that these should not exceed the preferred maximum building heights as shown in Overall Building and Streetwall Heights, Map 1A (North) and Map 1B (South). The applicable discretionary preferred maximum building height for the review site is 19 metres. The building exceeds this discretionary height by 11.76 metres.
35	With respect to street walls, DDO18 provides that buildings should have street wall heights on Ballarat Street and Hope Street of between 9 and 12 metres. The proposed street wall height is 15.45 metres.
36	DDO18 requires a setback of 5 metres (above the street wall), and the proposal provides a setback of 9.7 metres at level 6 increasing to 19 metres at level 7.
37	DDO18 requires a 1.0 metre setback of built form from the Upfield shared path, and the proposal provides a setback from the western boundary (Upfield shared path) of 6.89 metres at ground level (minimum) and extending up to 12.56 metres above the podium.   
38	As these DDO provisions are discretionary, a permit can be granted to exceed the street wall height, setbacks from the street wall and overall building height, where the application can demonstrate that the design objectives have been met. 
39	Much of the hearing time was spent comparing the existing approval versus the plans now before us. While there are many ways in which a site can be developed, our role is to consider whether what is before us, in its current format, is acceptable. We concur with the Tribunal’s reasoning in PT Capitol Development Partnership Pty Ltd v Stonnington CC:
[4]	Whether the current proposal is inferior to the previously approved development is a matter of opinion and it is irrelevant. It is not our role to adjudicate over a debate about the design merits of one proposal over another. Our role is to determine whether the proposal that is now before us is acceptable having regard to the relevant planning scheme policies and provisions.
40	In summary, the key differences between the existing approval and the amendment plans before us are:
•	An increase in the overall height of the building from 28.765 metres to 30.765 metres (excluding roof plant services). The approved development consisted of a part eight and part nine storey development, whereas the amended development consists of a total of nine storeys. 
•	An increase in the street wall height along Ballarat Street from 13.27 metres to 15.55 metres. 
•	An increase in the upper-level setbacks from the western boundary from between 2.2 metres and 2.4 metres to between 6.89 metres 12.565 metres.
•	An increase in the setbacks along the eastern boundary from Level 4 and above from 0 metres (walls on boundary) to a minimum of approximately 8.9 metres.
•	An increase in the number and composition of dwellings from 163 (31 x one-beds, 112 x two-beds and 20 x three-beds) to 226 (52 x studio, 127 x one-beds, 46 x two-beds, one x three-beds).
•	A reduction is car parking provision from 179 residential spaces and eight commercial spaces to 86 car parking spaces.
•	At ground floor, two retail tenancies totalling 215 square metres altered to three retail tenancies totalling 238 square metres.
41	The amended proposal now includes the provision of a publicly accessible communal open space along the western setback, alongside the Upfield Shared Path (referred to as Upfield Park). This approximately 1129 square metre publicly accessible open space has a minimum width of 6.89 metres, with the majority of this area having a maximum width of 12.565 metres. 
42	Other communal space is provided for residents in the form of two central courtyards, a sunken courtyard on the eastern boundary partially adjacent the respondents property and roof terrace areas across the development.
43	As 86 car parking spaces are proposed, a reduction of 174 car parking spaces is sought. Vehicle access will be provided via a crossover to Ballarat Street, on the site’s south-eastern corner.
44	However, it is largely the reconfiguration of the building format from the approved “C” shaped configuration with a centralised communal open space generally aligning with the respondent’s proposal, to a “H” shaped configuration that has given rise to the respondent’s concerns. This is because the proposal alters the overshadowing and overlooking impacts to the respondent’s property.
45	We agree with the applicant that the DDO is a critical guide in our assessment of this proposed development. This was not a view contested between the parties. We are satisfied these provisions in the DDO18 call for more intense and higher built form within this urban renewal precinct. We have given this planning control and objectives set within the schedule overlay due weight in our consideration of the proposed development.
46	While the dispute before us was largely related to matters of design detail, having regard to the principles of net community benefit, there are a number of ‘silent positives’ of the proposal with respect to the relevant planning provisions and strategic context of the land. These include:
•	that the proposal will deliver a large number of dwellings into one of three Major Activity Centres in Merri-bek, in which higher density and more diverse housing is sought.
•	the application now proposes the retention of an existing canopy tree on the western side of the site which is to be integrated into Upfield Park. Together with new landscaping, including deep soil planting to be established on the site, this is consistent with the schedule to the Mixed Use Zone which seeks building siting which maximises landscaping, including the retention of existing canopy trees and the planting of new canopy trees and vegetation.
•	that the development minimises the impact of vehicle access and car parking on the public realm by providing vehicle access to the side of the property away from the front façade as sought in DDO18.
•	the development incorporates active edges at street level fronting Ballarat Street and the Upfield Shared Path as sought by DDO18. 
•	there are no blank walls proposed that will be visible from the Upfield Shared Path.
•	the development incorporates windows and balconies in all upper-level facades facing Ballarat Street and the Upfield Shared Path.
•	the urban design experts all agree, as do we, that the architectural composition, including material and colour selection, suitably reflect the context of the site. 
•	the proposal is well articulated, achieving this through setbacks, fenestration, balconies and architectural features. It avoids the “wedding cake” appearance.
47	The parties generally agree that there is clear strategic planning support for substantial change to occur on the site, consistent with the guidance provided by the DDO18 and other policies of the scheme. The respondent’s own property also benefits from this level of strategic support as evidenced by the almost completed multi-level development on their site.
48	The detailed guidance on appropriate building envelopes within this precinct are largely satisfied by the proposal. While the DDO18 provides clear policy support for a proposal of 19 metres in scale, importantly this provision is a discretionary preferred building height, which the parties all agree has been exceeded in a number of sites in the immediate area.
49	The respondents largely do not oppose the proposed height increase. We are satisfied that the height increase proposed from that approved is acceptable in the context of the accrued rights. We find that the difference between the approved and proposed height would not be discernible from the public realm in near and longer-range views. We find that the proposed height change to be generally in accordance with the approved plans.
50	In our view, the building envelope which is proposed to be occupied by the proposal is an appropriate response to the requirements of the DDO18 and other relevant clauses of the scheme as it is generally consistent with existing and approved developments in the immediate area. The emerging character is one of buildings in the range of eight storeys or so.
51	We find that an approximately two metre height difference above what is already approved to be inconsequential in the broader physical context.  Moreover, it is a height difference contemplated by the DDO18 which nominates a lower preferred maximum building height for the 8 Ballarat Street property by two metres.  
52	It follows from the above, that we consider the proposal an acceptable response to its strategic policy and built form context. The proposal is consistent with the degree of change which is supported on this site by the planning scheme.
Will the development provide appropriate amenity for future residents?
53	The development is to be owned and managed by a single entity (using the Build-to-Rent model) and dwellings are to be rented out for mid to long term periods. This model provides a housing choice for the community that, it is asserted, provides more stable than traditional rental accommodation. 
54	The proposed apartments comprise a mix of studios, one bedroom and two bedroom dwellings with each dwelling consisting of open plan living spaces supplemented by private open spaces in the form of terraces, opening out from primary living zones.
55	The open to the sky central courtyards at the centre of the development provide sufficient built form separation within the site and also provides for mostly dual aspect dwellings with secondary daylight access and natural cross ventilation. All apartments with a separate bedroom will have direct access to natural light so no dwelling relies on borrowed or compromised light arrangements.
56	A significant proportion of the development (74 per cent) will have accessible habitable space and bathrooms, which exceeds the requirements of Standard D18 and responding to the policy at Clause 16.01-1L (Housing for people with limited mobility). Residents will also have access to more than 250 dedicated bicycle parking spaces.
57	The amenity for future residents is a relevant consideration in our assessment of the proposed plan changes. We are satisfied that the proposal will provide a high level of amenity for future residents, in the form of an on-site yoga studio, gym and workshop, facing out onto a sunken courtyard at lower ground level, a co-working area on the ground floor, a number of internal courtyards providing garden aspects and light, a dog wash room, as well as communal terraces on Levels 4 and 7.
58	There are aspects of the proposal which the respondents say fall short of the requirements of the scheme relating to internal amenity. Professor McGauran’s evidence is that more could be done to enhance amenity for apartments by maintaining greater privacy between habitable rooms and the shared walkway system. He says there should be less dependency on permanent screening of rooms with blinds and less walkways increasing the extent of atrium open to the sky and hence daylight to both the atrium and dwellings. 
59	For the reasons discussed below, we do not consider any of these matters give rise to unacceptable internal amenity outcomes which would warrant refusal of the application. Rather, having considered these matters as well as all of the requirements of clause 58 and other provisions of the scheme relating to internal amenity, we are satisfied that the proposal provides an acceptable level of internal amenity, subject to some minor modifications which we consider can be appropriately addressed by way of permit condition.
60	Importantly in our view, the proposal satisfies the daylight standards and cross ventilation standards of clause 58, with 72 per cent of the proposed dwellings achieving cross-ventilation requirements, exceeding the minimum of 40 percent compliance.
61	We sought details of the windows of bedrooms facing the internal atriums and common walkway areas, including whether they opened and how this may affect ventilation and noise. The windows are shown as double glazed and openable and unobscured. Given the windows are openable, the proposal complies with Standard D27 and, therefore, clause 58.07-4 in respect of natural ventilation.
62	Clause 58.04-3 contains objectives which seek to protect residents from noise sources. Standard D16 includes a requirement which provides that noise sensitive rooms should be located to avoid noise impacts from mechanical plants, lifts, building services, non-residential uses, car parking, communal areas and other dwellings. The windows are shown as double glazed and therefore offer acoustic protection from residents using the common walkway areas.
63	We consider that future residents will nonetheless be protected from noise consistent with the objective of clause 58.04-3 because of the proposed double-glazing treatment. Even if there was a possibility that a person passing one of these windows may be heard within the adjoining bedroom, given the limited number of apartments at each level, we do not consider this to be likely to result in significant amenity impacts in this case.
64	As to the screening of the windows facing the internal common walkways, we agree with the applicant that this can be addressed by permit condition that requires appropriate blinds be provided, or some other alternative method to achieve this purpose.
65	More broadly, we are satisfied that the amended plans provide apartment layouts that will achieve acceptable amenity in terms of outlook, daylight, functional spaces, balcony space and access to communal facilities for future occupants, subject to changes we set out below. We agree that the proposed balcony sizes are adequate for the associated apartment sizes and will contribute to a high amenity for future residents where a compact living environment is provided. The high degree of compliance with clause 58 standards was not disputed by the parties.
66	During the hearing, the Tribunal queried the layouts of some apartments that appeared to provide sub optimal internal amenity. Clause 58.07-1 has an objective of ensuring dwellings provide functional areas that meet the needs of residents. Standard D26 of that clause says that living areas (excluding dining and kitchen areas) should meet the minimum internal room dimensions specified in Table D12. For studios and one bedroom dwellings the minimum internal room dimension is 3.3 metres and minimum area of 10 square metres.
67	The applicant’s expert agrees that this standard is not achieved for the proposed studio apartments. Being a studio apartment, the bed is shown within the shared living space, and the dimensions do not satisfy the Standard. Meeting the Standard is not the end of the matter. Standard D26 is only one way of achieving the objective of clause 58.07-1. 
68	In considering whether these living areas meet the objectives of clause 58.07-1, the decision guidelines in that clause require us to consider the design response, as well as the useability, functionality and amenity of these rooms. 
69	The purpose of Standard D26 is not to provide a detailed future layout of an apartment which is to be locked in as part of the planning process. Rather, the purpose of Standard D26 is for plans to demonstrate that there is a sufficient envelope of space available for the reasonable needs of future occupants.
70	In this case and having regard to the decision guidelines set out in clause 58.07-1, we have some concern that the studio apartments provide a functional living space which will meet the needs of residents. 

Figure 3: Example Studio Apartment Concept Plan
71	The size of the studio apartments does not appear to allow for enough room for a dining area, including a table and at least two chairs. In the proposal before us, the plans (see Figure 3 example) detail a queen-sized bed, a two seater couch, and a small round table in the “living” space, together with the necessary fixed kitchen and laundry cabinetry and plumbing.  The Standard is clear that “dining” space should not be included within the “living” space and this is not achieved in the current plans.
72	While we accept that other indicative furniture layouts are capable of being provided within the overall space (i.e. residents may choose a single bed, two small chairs rather than a couch, and a drop-down dining table arrangement), we must be satisfied that spatially there is sufficient area to accommodate necessary and reasonable living and kitchen space.
73	On balance, we are not satisfied that sufficient space is available to achieve an acceptable level of internal amenity. We find that in a studio apartment in which space is already highly constrained that the space should meet the minimums specified in the Standard. This is also important as approximately 23% of the housing offer proposed are studio apartments.
74	Our concerns about the capacity for the studio apartments to accommodate a dining table can be addressed with either an alteration to the layout to increase the internal size of the apartments or to provide fixed ‘murphy’ beds into the existing studio apartment layout. This would allow opportunities for residents to hide away the bed and use the gained space as a dining area. In our view, either option would result in acceptable internal space and these options will be required by permit condition.
75	We find that any consequential changes to window and balcony arrangements arising from an increase in size of the studio apartments (if this course of action is adopted), in our view, can be accommodated within the existing architectural language.
Will the development have an unacceptable impact on the amenity of the neighbouring dwellings?
76	Clause 15.01-2L Apartment Developments in Merri-bek provides some relevant directions, in particular in relation to building setback and separation matters. For the circumstances of the shared boundary between the review site and the respondents land, the setback requirements are a minimum of six metres up to four storeys, a minimum of nine metres up to eight storeys, and 12 metres for nine or more storeys.
77	The adjoining development at No. 8 Ballarat Street has been configured as a reverse C shape perimeter block around a central courtyard. The development has a series of apartments facing the courtyard each with either a private terrace or balconies. 
78	As a general observation, Professor McGauran’s evidence largely constitutes a critique of the amended application using the approved development as the base and then seeks to compare the two. A departure from the approved development is generally regarded as a ‘lesser outcome’. There is limited analysis in the evidence focusing on the acceptability of what is now before the Tribunal.
79	Professor McGauran’s opinion is that there should be no additional overshadowing (beyond that currently approved) of the private open space terraces and balconies of the northern and western courtyard facing apartments of apartments at 8 Ballarat St between the hours of 12 noon and 3pm at the September Equinox and no net additional overshadowing of the communal courtyard open space of 8 Ballarat Street between the hours of 12 noon and 3pm at the September Equinox. 

Figure 4: Looking south towards north facing and west facing apartments on adjacent site at 8 Ballarat Street.  Review site to right of image Source: McGauran evidence
80	We agree with the applicant that the correct way to assess an application is not by requiring no change in amenity impacts from the current approved proposal. Further, it is not reasonable for purchasers/occupants of the adjacent site to expect that the existing approval as applies to the review site is the only one that should be approved for the site. Section 72 of the Act allows amendments to permits, and permits may also expire and new permits sought.
81	DDO18 design objectives seek to maintain reasonable amenity for residential properties within and adjacent to the activity centre. In our view, reasonable amenity expectations are derived from such matters as the zoning and any overlays that apply to the land, and its physical and strategic context.  We consider that amenity expectations in an area such as this should not be equivalent to amenity expectations in less intensely developed areas, or in the broader residential hinterland. 
82	There are no relevant overlooking or overshadowing standards anywhere in the Planning Scheme. The DDO18 does not raise amenity expectations in the private realm and clause 58 is silent on overshadowing and overlooking standards to abutting properties. 
83	We consider the degree of overshadowing of No. 8 Ballarat Street will not result in an unacceptable amenity impact. We consider that the shadow impact is consistent with that anticipated in an area identified for significant built form change. There is no overshadowing cast by the proposal across the communal open space of 8 Ballarat Street between 9am and 12pm.
84	Based on the analysis undertaken, prior to 2pm the shadow situation for the courtyard is actually improved when compared with the shadow situation that would be created by the existing permit.  It is only after 2pm that the proposal would result in more shadow on the courtyard than the existing permit. However, the amount of additional shadow being cast, after 2pm, in this activity centre context and having regard to the setbacks proposed for the subject land, is not unacceptable.
85	The additional overshadowing to the balconies is limited to around nine apartments (of 121 apartments), and these balcony spaces are largely enclosed and often overshadowed by its own development. The additional overshadowing arising from the proposal will occur after 2pm. In the context of an activity centre environment, this degree of shadow on a neighbouring site is not unacceptable.
86	In the middle of the day (12 noon and 1pm) the shape and size of any overshadowing to the communal open space of No. 8 Ballarat Street is improved by the proposal, and at 2pm the shadow cast by the amended development is only marginally increased by 7 square metres. The overshadowing to balcony spaces is limited to between the hours of 2pm and 3pm and only a limited number of balconies are affected.
87	In the absence of overshadowing standards applicable to apartment developments, we are satisfied that the limited degree of overshadowing of both the communal courtyard and into a small number of balcony spaces on the respondent’s property is marginal in its physical and strategic context. The shadow impacts after 2pm and leading up to 3pm represent a very confined period of the day overall. 
88	Overlooking into the adjacent courtyard is possible from within its own development, so there should be no reasonable expectation that the courtyard should not be overlooked from the review site. In any event, the east facing balconies are set back approximately 8.9 metres from the abutting site, which is only marginally below the 9.0 metre separation distance sought in clause 15.01-2L Apartment Developments in Merri-bek.
89	With respect to visual bulk concerns, during the hearing there was some discussion about the treatment of the eastern elevation as faces 8 Ballarat Street and we have included conditions as agreed by the permit applicant to clarify the material treatment along this elevation. We otherwise have no concerns from a visual bulk perspective about the eastern elevation of the building. While the balconies are setback 8.9 metres and not the 9.0 metres as sought by clause 15.01-2L, we find this marginal intrusion into a discretionary provision will be imperceptible in the visual appreciation of this elevation from the adjoining balconies and courtyard.
90	In our view, the proposed setbacks, together with the articulation of the built form as it presents to the east, will ensure that no unreasonable visual bulk impacts arise.
Is sufficient car parking provided and will there be any unacceptable traffic impacts?
91	Ballarat Street Developments acknowledges that there is planning policy that seeks to encourage a shift from private vehicles to walking, cycling and public transport, but it says that the proposal is not supported by adequate evidence to justify that the numbers of spaces provided is sufficient and a reduction is an acceptable outcome. It is concerned that overflow parking and those looking for car spaces will further add to the scarcity of on-street parking in the area and will add to the pedestrian and vehicle congestion of Ballarat Street and surrounding streets. 
92	The purpose of clause 52.06 is:
•	To ensure that car parking is provided in accordance with the Municipal Planning Strategy and the Planning Policy Framework.
•	To ensure the provision of an appropriate number of car parking spaces having regard to the demand likely to be generated, the activities on the land and the nature of the locality.
•	To support sustainable transport alternatives to the motor car.
•	To promote the efficient use of car parking spaces through the consolidation of car parking facilities.
•	To ensure that car parking does not adversely affect the amenity of the locality.
•	To ensure that the design and location of car parking is of a high standard, creates a safe environment for users and enables easy and efficient use.
93	Clause 52.06-7 specifies that an application to reduce the number of car spaces required must be accompanied by a car parking demand assessment. This assessment it to address specified matters including the availability of public transport, the convenience of pedestrian and cyclist access, the provision of bicycle parking, anticipated car ownership rates and any empirical study.
94	Before granting a permit to reduce the number of car spaces, consideration must be given to a number of matters. These include the car parking demand assessment, local policy, the availability of car parking in the locality, impact of fewer car spaces on local amenity and access to alternative transport modes.
95	The objective relating to car parking in State policy (at clause 18.02-4S) seeks to ensure there is an adequate supply of car parking with strategies that refer to consideration of other modes of access including public transport, road capacity, the potential for demand management of car parking and protecting the amenity of residential precincts from the effects of road congestion created by on-street parking.
96	Clause 52.02-7 sets out the matters that must be considered before granting a permit to reduce the number of car spaces required by the Planning Scheme. This clause effectively requires a two-step process. First an assessment of the likely demand for parking spaces and secondly, whether it is appropriate to allow fewer spaces to be provided.
97	In considering the matters pertaining to an assessment of the car parking demand we find as follows:
•	It is likely that customers of the retail floor spaces will include staff and residents of the building, residents of nearby apartments and staff and customers of surrounding commercial businesses. 
•	Multi-purpose trips within the locality are likely and this will reduce the parking demand associated with the retail tenancies.
•	The site has excellent access to a range of public transport with multiple tram and bus options close by and a train station approximately 200 metres to the south. The ready availability of public transport supports a reduced need for a private vehicle and associated car space.
•	The site is conveniently located for pedestrian and cyclist access with the Upfield shared path on its western boundary.
•	The site is proximate to a wide range of services and facilities that are within walking distance reducing the need for a private vehicle trip.
•	The proposal provides a substantial quantum of bicycle parking and end of trip facilities for cyclists in a manner that will encourage cycling as a mode of transport. 
•	Based on the 2021 ABS data for Brunswick there is a market demand for studio and one bedroom dwellings with no parking. The data shows that 92% of studio apartments, and 44% of one bedroom apartments have no car.
98	We consider that there is strong strategic support in the Planning Policy Framework, especially in local policy, for suppression of parking demand in a location such as this, which has excellent access to public transport and being within a major activity centre. The reduced provision of car parking is supported in the policies that seek to address traffic congestion, limit greenhouse emissions and encourage a modal shift to more sustainable transport options. 
99	While the proposed Build to Rent model manages car parking spaces by allocating them separately rather than being tied to an individual apartment, meaning car spaces are less likely to go unused, our decision about the acceptability of the reduced parking provision does not rely on this model.
100	We accept that the site has significant locational attributes that allows for application of the reduced rate of car parking. On-street parking in the vicinity of the site is sufficiently protected to discourage future residents without an onsite car space to own a motor vehicle. There is suitable short-term parking available in close proximity of the site for residential visitors and retail customers of the development. The provision of car share spaces within the development will support apartments without a car parking space. There is also generous provision for bicycle parking both for residents and patrons of the retail floorspace.
101	We agree that the provision for loading and waste collection are acceptable.
102	The evidence of Mr Walsh is that the proposal will generate 26 movements in peak hours and this level of traffic will have little impact on the operation of Ballarat Street and the broader road network, particularly considering motorists can use Ovens Street, Ballarat Street and Boase Street to/from the broader road network. Relevantly, the existing permit is premised on a provision of 145 car spaces and in this regard, the existing permit, if constructed, would generate a greater level of traffic than the current proposal. In the absence of any evidence to the contrary we are satisfied the projected traffic generation can be readily accommodated in Ballarat Street and the broader road network.
103	In summary, we consider the review site is well placed to fulfil the aspirations of the 20-minute access for everyday needs via means other than a private car. In the circumstances of this case, we find a reduced provision of car parking as proposed is acceptable for the reasons set out above.
104	Subject to some changes that can be achieved by permit condition, the design of the car park is appropriate.
are there any other issues?
105	Professor McGauran’s opinion is that there should be no additional overshadowing impacts (beyond that currently approved) to the southern side footpath of Ballarat Street. He recommends a reduction in the floor-to-floor heights of the Ground Level to Level 1, the Ballarat Street wall upstand parapet height, and the setback of perimeter screens to Level 4 and Level 7 terraces to eliminate overshadowing of the southern footpath of Ballarat Street between the hours of 10am and 2pm at the September Equinox.
106	DDO18 provides that development should not overshadow the opposite footpath of Sydney Road and Key Pedestrian Streets indicatively shown on Map 2A (North) and Map 2B (South) between 10.00am and 2.00pm at the equinox. Ballarat Street is not nominated as a Key Pedestrian Street in this provision. Nevertheless, the shadow analysis shows that there is a minor increase in shadow impact to the south side of the Ballarat Street pedestrian pavement in the morning, however at midday this shadow is largely confined to the kerb and channel on the south side. 
107	Although shadow impacts to the southern side of Ballarat Street would alter compared with shadows cast by the existing approval, we are satisfied that adequate solar access to the opposite footpath would be retained from 12pm on the equinox.  We agree with Council’s assessment that from 2pm, the proposal would actually cast less shadow compared to the existing approval.  
108	The additional overshadowing arising from the amended proposal is barely discernible and will not cause any appreciable additional off-site amenity impacts to the Ballarat Street footpath compared to what would occur from the approved plans. 
109	With respect to wind issues, we are satisfied that the potential wind impacts arising from the amendments proposed will be appropriately considered and addressed. We reach this view based on the fact that a permit condition will require Council to approve and endorse an updated version of the wind assessment for the amended plans. This condition requires implementation of any modifications required to ensure acceptable wind conditions to the satisfaction of Council.
110	Finally, the existing approved street wall height to Ballarat Street is 13.1 metres and the application now proposes a height of 15.45 metres. The DDO18 requirement specifies a street wall height of between 9 and 12 metres. Development that seeks to vary the street wall heights must demonstrate how the design objectives and requirements of this schedule will be met.
111	We are persuaded by the evidence of Ms Jordan and Ms Heggan that the street wall height proposed is acceptable. The adjacent development has a comparative street wall height (1.8 metres lower), so contextually the building will sit comfortably beside it. We also noted that there is already some variation in street wall heights emerging along this part of Ballarat Street and in this context, we consider some variation from the discretionary provision is acceptable and can be comfortably absorbed within the streetscape.
112	DDO18 also seeks any part of a building above the street wall height should:
•	Be setback at least 5 metres from the street boundary. Balconies and other architectural features may protrude into the setback by a maximum of 2 metres.
•	From ground level, achieve a 1:1 horizontal distance from the opposite street boundary.
•	Adopt the same street setback for at least 75% of the height of the upper levels to avoid ‘wedding cake’ built form outcomes.
113	Development that seeks to vary these setbacks must demonstrate how the design objectives and requirements of this schedule will be met.
114	We are persuaded by the evidence of Ms Jordan that the encroachment into this 1:1 street width ratio at the upper portion of the building is relatively minor and occurs at levels 4 and 7, with the majority of the building sitting comfortably within this line. The proposal does no adopt a “wedding cake” typology.
What conditions are appropriate?
115	We have had regard to submissions and evidence in relation to permit conditions. The conditions attached in Appendix A to this decision reflect our findings.
Conclusion
116	Integrated decision making is a balancing of competing objectives in favour of net community benefit. Clause 71.02-3 of the planning scheme requires that responsible authorities endeavour to integrate the range of planning policies relevant to the issues to be determined and balance conflicting objectives in favour of net community benefit and sustainable development for the benefit of present and future generations. 
117	We are satisfied that the proposal will deliver significant benefits to both future residents and the broader community, and minimal disbenefits, if any, to abutting residents.
118	For the reasons given above, the decision of the responsible authority is varied. An amended permit is granted subject to conditions.

K Birtwistle                                             G Chase
Presiding Member                                 Member	

Appendix A – Permit Conditions

Permit Application No	MPS/2018/856/A	
Land	10 Ballarat Street, Brunswick	

What the permit allowS	
In accordance with the endorsed plans:
•	Construction of a multi-storey mixed use development over basement car parking and a reduction to the standard car parking requirement	

Conditions
Amended Plans
1	Before the development commences, 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 generally accord with the plans prepared by prepared by Cox Architecture and Breathe (TP00-01 to TP97-17) dated 22 December 2023, but modified to show:
(a)	Studio apartments modified through either the provision of drop down (murphy) beds OR the living area internal dimensions increased to satisfy Standard D26 of clause 58.07-1 (with dining space to be shown outside the living area).
(b)	The provision of a dual set of internal holland blinds to habitable room winds that face the common walkways or other method to provide privacy for residents.
(c)	Improved connection from Ballarat Street to the Upfield Shared Path and improved pedestrian amenity adjacent to the southern boundary footpath, through:
i	Reduction of visitor bicycle spaces to 7 spaces repositioned, and direct connection provided to the Upfield Shared Path from the undercroft area;
ii	Removal or reduction of two circular concrete columns at south west corner; and
iii	Removal of the westernmost set of stairs adjacent to the retail tenancy to provide a larger at-grade entrance to the site’s south-western corner.
(d)	Detailed facade elevations (with dimensions) at a scale of 1:50 (or as otherwise agreed by the Responsible Authority) for the southern and western interfaces of the development (i.e. Ballarat Street and the western setback) for the lower three levels and for the eastern elevation. These elevations must include details relating to openings, services and external finishes & treatments. Any services on the facade must be treated to integrate with the building architecture.
(e)	At least one car parking space within the basement levels provided to each retail tenancy within the development.
(f)	An enhanced detailed design treatment of the substation wall/door at the south-eastern corner of the site’s Ballarat Street interface at ground-floor level, with the area west of the basement ramp identified to be provided with public art (or similar).
(g)	At least 20 per cent of the bicycle parking devices designed to park bicycles horizontally (i.e. 1.8m long) at ground level in accordance with the Australian Standard for Bicycle Parking (AS2890.3).
(h)	Notation added to Clause 58 drawings for the accessible apartments confirming that the shower will be step-free, or as otherwise agreed by the Responsible Authority.
(i)	The height and permeability of terrace fencing to the ground-floor, west-facing dwellings confirmed through agreed plan notations. Fence permeability must be at least 25 per cent.
(j)	Removal of ‘green wall treatment’ notations on east elevation where works would be located on the adjoining property at 8 Ballarat Street.
(k)	Replacement of ‘Retail’ notation on the ground-floor commercial tenancies with ‘Section 1 Retail Uses’
(l)	Bedroom windows associated with Apartment Type 1.A (for dwellings where windows are adjacent to the southern internal stairwell) relocated south in order to achieve an outlook to the southernmost courtyard/void.
(m)	Wayfinding signage provided at ground-floor level to improve the connection between Ballarat Street and the residential lobby.
(n)	A correction to the ramp grades, to be nominated at 1 in 5.4 rather than 1 in 5 (or as otherwise agreed with the responsible authority).
(o)	The provision of a convex mirror on the column immediately west of the site vehicle access.
(p)	Corrections to the plans such that the proposed eastern boundary treatment adjacent to the communal courtyard at 8 Ballarat Street is in accordance with the treatment depicted in the plan prepared by Cox Architecture dated 6 February 2024 titled ’10 Ballarat Boundary Wall Markup Based on PNPE9 Drawings’.
(q)	Additional details of the materials on the east elevation.  
(r)	Depiction of the planters on TP40-20 to have a minimum depth of 600mm.
(s)	For the ground floor internal central courtyard planting area and for the level 1 internal courtyard planting area, the depiction of a 250-300mm set-down in the slab.
(t)	Any changes required to align with the amended Sustainability Management Plan required by Condition 9 of this permit.
(u)	Any changes required to align with the amended Landscape Plan required by Condition 13 of this permit.
(v)	Any changes required to align with the Tree Management Plan required by Condition 12 of this permit.
(w)	Any changes required to align with the amended Waste Management Plan required by Condition 17 of this permit.
(x)	Any changes required to align with the amended Accessibility Report required by Condition 19 of this permit.
(y)	Any changes required to align with the amended Acoustic Report required by Condition 21 of this permit.
(z)	Any changes required to implement the amended Environmental Wind Assessment required by Condition 24 of this permit.
(aa)	A schedule of materials, finishes and colours, including physical samples of all external finishes.
2	The development as shown on the endorsed plans must not be altered without the written consent of the Responsible Authority. This does not apply to any exemption specified in Clauses 62.02-1 and 62.02-2 of the Merri-bek Planning Scheme unless specifically noted as a permit condition.
Retention of architect/s
3	The owner of the land must retain Cox Architects and Breathe to provide architectural oversight of the delivery of the detailed design, as shown in the endorsed plans and endorsed schedule of materials and finishes, during construction, unless with the prior written approval of the Responsible Authority.
Easements to be removed
4	This permit shall have no force or effect until such time as a separate permit or permits are issued in accordance with Clause 52.02 of the Merri-bek Planning Scheme for:
(a)	the removal of the carriageway easements identified on Plan of Subdivision PS503482A, and the carriageway easements are removed in accordance with section 23 of the Subdivision Act 1988; and
(b)	the relocation of the drainage easement identified on Plan of Subdivision PS503482A.
5	Prior to the issue of an occupancy permit for the development, the drainage asset and drainage easement must be relocated in accordance with section 23 of the Subdivision Act 1988.
Public Realm Works Plan
6	Prior to the commencement of any development works hereby approved, a Public Realm Works Plan and associated construction drawing specifications detailing the works to the land must be submitted to and approved by the Responsible Authority. When approved, the plan(s) will be endorsed and will then form part of the permit.  The plan(s) must be drawn to scale with dimensions. The plan must show the following, all to the satisfaction of the Responsible Authority and to Council’s standards as appropriate:
(a)	All construction details in accordance with the Moreland City Council Technical Notes July 2019 (or any updated version);
(b)	A detailed level and feature survey of the footpaths and roads;
(c)	Construction of the widened Upfield Shared Path a width of approximately 2 metres from the western property boundary (to the extent depicted on TP21-10), to the satisfaction of the Responsible Authority;
(d)	Reconstruction and widening of the Ballarat Street footpath along the entire southern frontage of the site, and extended west to the eastern boundary of 33 Ballarat Street;
(e)	Longitudinal plans of the road verge commencing 10 metres beyond the site boundary, together with cross-sections between the kerb and the building line at 5 metre intervals, with levels showing the slope of the public footpath and highlighting how the level difference between footpath and floor levels will be made up within the site to the satisfaction of the Responsible Authority;
(f)	The location and species of at least six new street trees to the Ballarat Street frontage;
(g)	Details of the location and type of all paved and sealed areas;
(h)	New or reconstructed footpaths, nature strips and other associated street furniture/infrastructure which is to be provided with graffiti-resistant surfaces;
(i)	Relocation of the drainage asset as required by Conditions 4 and 5 of this permit; and
(j)	Details of the timing for implementation/delivery of the Public Realm Works to Council’s satisfaction.
7	Prior to the issue of an Occupancy Permit or issue of a Statement of Compliance (whichever comes first), the works shown in the endorsed public realm works plan are to be constructed at the cost of the developer in accordance with engineering construction plans approved to the satisfaction of the Responsible Authority.
8	The public realm works plan approved under this permit must be implemented and complied with at all times to the satisfaction of the Responsible Authority unless with the further written approval of the Responsible Authority.
Sustainability Management Plan
9	Prior to the endorsement of plans, an amended Sustainability Management Plan (SMP) and plans must be submitted to the satisfaction by the Responsible Authority. The SMP must demonstrate a best practice standard of environmentally sustainable design and be generally in accordance with the SMP prepared by ADP Consulting dated May 2023, but modified to include the following changes:
(a)	Relating to the Green Star assessment:
i	Provide evidence that the project will be registered and approved by the Green Building Council of Australia, including contracts with ESD Consultants engaged to perform these tasks.
ii	Provide an updated Green Star assessment which confirms all targeted credits and confirms the methodology for achieving a minimum 5 star building. Preliminary NatHERS ratings for all thermally-unique dwellings demonstrating the 7.5 star average, performed by an accredited NatHERS assessor and containing complete cooling load, heating loads, star ratings and proposed building fabric.
(b)	The Responsible Authority must be provided with access to the MUSIC model which demonstrates that the Best Practice Environment Management Guidelines pollutant reduction targets are met.
When submitted and approved to the satisfaction of the Responsible Authority, the amended Sustainability Management Plan and associated notated plans will be endorsed to form part of this permit. No alterations to the plan may occur without the written consent of the Responsible Authority.  
Where alternative ESD initiatives are proposed to those specified in the conditions above, the Responsible Authority may vary the requirements of this condition at its discretion, subject to the development achieving equivalent (or greater) ESD outcomes in association with the development. 
10	Prior to the issue of an Occupancy Permit or issue of a Statement of Compliance (whichever comes first), a report from the author of the SMP approved pursuant to this permit, or similarly qualified person or company, must be submitted to the Responsible Authority. The report must be to the satisfaction of the Responsible Authority and must confirm (and include evidence) that all measures specified in the SMP have been implemented in accordance with the approved plan. This must include confirmation from the Green Building Council of Australia that the 5 Star Green Star rating commitment has either been met or sufficiently progressed to the satisfaction of the Responsible Authority.
11	All stormwater treatment devices (e.g., raingardens, rainwater tanks etc.) must be maintained to the satisfaction of the Responsible Authority to ensure water quality discharged from the site complies with the performance standard in the endorsed Sustainability Management Plan.
Tree Management Plan (TMP)
12	Prior to the endorsement of plans, a Tree Management Plan (TMP) must be submitted to the satisfaction of the Responsible Authority. The TMP must be prepared by a suitably qualified Arborist and make specific recommendations in accordance with the Australian Standard AS4970: 2009 - Protection of Trees on Development Sites to ensure that Tree 1 (existing eucalypt within the western setback) remains healthy and viable during construction. The TMP must include the following to the satisfaction of the Responsible Authority:
(a)	A tree protection plan to scale that shows:
i	All Tree Protection Zones and Structural Root Zones;
ii	All Tree Protection Fencing;
iii	Areas where ground protection systems will be used;
iv	The type of footings within any Tree Protection Zone;
v	The location of services within any Tree Protection Zone;
vi	The location and design of Tree Protection Fencing; and
vii	Details of appropriate footings within the Tree Protection Zone.
(b)	How surfacing and underground services will be installed within the TPZ (this must include annotation on the TPP for use of hydro-excavation under project arborist supervision for earthworks that cannot be relocated outside the TPZ) and which must include boring of any stormwater drain within the TPZ.
(c)	Details of how the root zone and canopy will be protected throughout the project.
(d)	A timetable outlining works requiring supervision by the Project Arborist (including supervision of removal of existing surfacing within the TPZ).
(e)	All remedial pruning works that are required to be performed on the tree during the development of the site. The pruning comments must reference Australian Standards 4373:2007, Pruning of Amenity Trees and a detailed photographic diagram specifying what pruning will occur.
(f)	That any excavation within the TPZ will be to the satisfaction of the project arborist. 
(g)	That paving should be porous within the TPZ. 
(h)	That there be no new retaining walls or strip footings within the TPZ unless approved by the project arborist. 
When submitted and approved to the satisfaction of the Responsible Authority, the TMP will be endorsed to form part of this permit.  The recommendations of the endorsed TMP must be implemented to the satisfaction of the Responsible Authority. No changes can be made to the plan without the written consent of the Responsible Authority.  
Landscape Plan
13	Prior to the commencement of development, an amended detailed Landscape Plan must be submitted to and approved by the Responsible Authority. The landscape plan must be generally in accordance with the plans prepared by Openwork Pty Ltd dated 23 December 2023 but provide for the following:
(a)	Planting schedule including quantities and locations suitable for Ecological Vegetation Class 55 (EVC55).
(b)	The location of relocated easements/drainage assets considered and shown.
(c)	A maintenance and planting schedule for the replacement of dead, diseased or damaged plants which anticipates the future low-light context of the area adjacent to the elevated rail, and nominates alternative planting in the event the original planting is no longer suitable.
(d)	Details of landscaping and planters at podium and balcony level.
(e)	Maintenance schedule and plan for the satisfactory upkeep and management of the publicly-accessible linear open space.
(f)	A Lighting Plan with LUX levels and tested against CPTED principles, including integrated lighting.
(g)	Detail and proposed heights of mounding in linear publicly-accessible open space.
(h)	How the design of the area takes into consideration the elevated rail project immediately adjacent to the site, with the linear publicly-accessible open space to be suitably integrated with the future open space beneath the elevated rail.
(i)	Suitably integrated water sensitive urban design, to the satisfaction of the Responsible Authority.
(j)	The species of any new street trees.
(k)	Removal of ‘green wall treatment’ on east elevation where works would be located on the adjoining property at 8 Ballarat Street.
(l)	The provision of planting on the trellis proposed for the eastern boundary, adjacent to the communal courtyard at 8 Ballarat Street, generally in accordance with the treatment depicted in the plan prepared by Cox Architecture dated 6 February 2024 titled ’10 Ballarat Boundary Wall Markup Based on PNPE9 Drawings, and which includes a 450mm wide strip for the ground level planting on 10 Ballarat Street, adjacent to a kerb, and a chain armature upon which a plant will climb up to the trellis. 
(m)	Reconsideration of the use of Cyathea cooperi in the sunken courtyard. 
(n)	The inclusion of appropriate tree species in the central northern ground floor courtyard, similar to the other ground floor courtyards. 
(o)	The inclusion of appropriate tree species in the northernmost ground floor courtyard, similar to the other ground floor courtyards.	
(p)	For the level 4 communal terrace, screen planting adjacent to the apartment windows, the inclusion of small trees, and an explanation of how the consideration of both the shade/sunlight conditions has been incorporated in the plant selection. 
(q)	For the level 7 communal terrace, reconsideration of the tree size, to ensure sufficient soil volume for the species selected. 	
When submitted and approved to the satisfaction of the Responsible Authority, the Landscape Plan will be endorsed to form part of this permit. 
14	Prior to the issue of an Occupancy Permit or issue of a Statement of Compliance (whichever comes first), all landscaping works must be completed and maintained in accordance with the approved and endorsed landscape drawing to the satisfaction of the Responsible Authority.
15	Prior to the issue of an Occupancy Permit or issue of a Statement of Compliance (whichever comes first), the street trees as shown on the landscape plan must be planted, subject to any site constraints as determined by Council. All street tree works must be undertaken by Council at the cost of the permit holder.
16	All landscaping and irrigation systems must be maintained to the satisfaction of the Responsible Authority in accordance with the endorsed landscape plans and/or the maintenance schedule, as applicable. Any dead, diseased or damaged plants must be replaced with a suitable species to the satisfaction of the Responsible Authority.
Waste Management Plan
17	Prior to the endorsement of plans, an amended Waste Management Plan (WMP) must be submitted to the satisfaction of the Responsible Authority. The plan must be generally in accordance with the advertised WMP prepared by Ratio Consultants but modified to reflect the development hereby approved.
When submitted and approved to the satisfaction of the Responsible Authority, the Waste Management Plan will be endorsed to form part of this permit. No alterations to the Waste Management Plan may occur without the written consent of the Responsible Authority.
18	The Waste Management Plan approved under this permit must be implemented and complied with at all times to the satisfaction of the Responsible Authority unless with the further written approval of the Responsible Authority.
Accessibility Report
19	Prior to the endorsement of plans, an amended Accessibility Report must be submitted to the satisfaction of the Responsible Authority.  The plan must be generally in accordance with the advertised Accessibility Report prepared by MGAC but modified to consider the development hereby approved, and to reflect the changes required by Condition 1 of this permit.
When submitted and approved to the satisfaction of the Responsible Authority, the Accessibility Report will be endorsed to form part of this permit. No alterations to the Accessibility Report may occur without the written consent of the Responsible Authority.
20	Prior to the issue of an occupancy permit for any dwelling approved under this permit, a report from the author of the accessibility report approved pursuant to this permit, or similarly qualified person or company, must be submitted to the Responsible Authority.  The report must be to the satisfaction of the Responsible Authority and must confirm that all measures specified in the accessibility report have been implemented in accordance with the approved report.
Acoustic report
21	Prior to the endorsement of plans, an amended Acoustic Report must be submitted to the satisfaction of the Responsible Authority. The report must be generally in accordance with the advertised Acoustic Report prepared by Acoustic Logic, and must:
(a)	Reflect the development hereby approved and the changes required by Condition 1 of this permit; and
(b)	Detail how construction methods and materials will mitigate noise impacts from the railway line (including from its future elevated position).
When submitted and approved to the satisfaction of the Responsible Authority, the Acoustic Report will be endorsed to form part of this permit. No alterations to the Acoustic Report may occur without the written consent of the Responsible Authority.
22	The building must be constructed and maintained in accordance with the recommendations contained within the approved Acoustic Report to the satisfaction of the Responsible Authority.  The Acoustic Report endorsed under this permit must be implemented and complied with at all times to the satisfaction of the Responsible Authority unless with the further written approval of the Responsible Authority.
23	Prior to the issue of an Occupancy Permit or issue of a Statement of Compliance (whichever comes first), a report from the author of the Acoustic Report approved pursuant to this permit or similarly qualified person or company must be submitted to the Responsible Authority.  The report must be to the satisfaction of the Responsible Authority and must confirm that all measures specified in the Acoustic Report have been implemented in accordance with the approved Acoustic Report.
Environmental Wind Assessment
24	Prior to the endorsement of plans, an amended Environmental Wind Assessment must be submitted to the satisfaction of the Responsible Authority. The report must be generally in accordance with the Environmental Wind Assessment prepared by MEL Consultants dated October 2022 but modified to:  
(a)	address the development layout as approved by this permit, including any changes required by Condition 1 of this permit;
(b)	Provide an assessment relevant to the requirements of Clause 58 Standard D17 (Wind impacts) of the approved development; and 
(c)	Clearly set out any modifications required to the approved development to achieve compliance with the objective of Clause 58 Standard D17 (Wind impacts),  
	all to the satisfaction of the Responsible Authority. 
When submitted and approved to the satisfaction of the Responsible Authority, the Environmental Wind Assessment will be endorsed to form part of this permit. No alterations to the Environmental Wind Assessment may occur without the written consent of the Responsible Authority.
The Environmental Wind Assessment approved under this permit must be implemented and complied with at all times to the satisfaction of the Responsible Authority unless with the further written approval of the Responsible Authority.
Melbourne Water
25	The ground floor of the building must be constructed with finished floor levels set no lower than 46.0 metres to Australian Height Datum (AHD), with the exception of that portion of the building located on the southern part of the site, identified  by Melbourne Water in the image titled ‘Graded Flood Level’ dated 7 April 2020 as having a flood level of 45.5 metres to Australian Height Datum (AHD), which must be constructed with finished floor levels set no lower than 45.8 metres to Australian Height Datum (AHD).
26	The Entry/Exit apex & all opening to the proposed basement carpark must be set no lower than 300mm above the flood level by Melbourne Water (in the image titled ‘Graded Flood Level’ dated 7 April 2020).
27	The building must be setback 3 metres from western boundary at ground floor to allow for the passage of overland flows. The set setback area must be set at current natural surface levels. If fencing is proposed along the western boundary, it must be 50 per cent open style fence to allow the passage of overland flows within 3 metre setback area.
28	Any new fencing/gates must be of an open style of construction (minimum 50 per cent open) to allow for the passage of overland flows.
29	Prior to the issue of an Occupancy Permit, a certified survey plan, showing finished floor levels (as constructed) reduced to the Australian Height Datum, must be submitted to Melbourne Water to demonstrate that the floor levels have been constructed in accordance with Melbourne Water’s requirements.
VicTrack
30	The permit holder must, at all times, ensure that the common boundary with railway land is fenced at the permit holder’s expense during construction.
31	The permit holder must not, at any time:
(a)	Allow any drainage, effluent, waste, soil or other materials to enter or be directed to the railway land; or
(b)	Store or deposit any waste, soil or other materials on the railway land.
32	The permit holder must not plant any plants or tree species that are likely to cause any future overhang onto the railway land or disturbance to the railway operations.
33	Entry onto railway land is at the discretion of the Rail Operator and is subject to the Rail Operator’s Site Access Procedures and conditions.  The rail operator contact is: metrositeaccess@metrotrains.com.au.
34	Prior to the commencement of works, including demolition and bulk excavation, the permit holder must enter into all necessary construction control and indemnity agreements as required by the Rail Operator to ensure that the disruption to train operation within the railway corridor is kept to a minimum during construction and in compliance with the Rail Operators Safety and Environmental requirements contained within the Rail Operators construction control and indemnity agreement.
35	The permit holder must not carry out, or allow to be carried out, any excavation, filling or construction on the common boundary between the subject land and the railway land unless it has obtained the prior written approval of VicTrack and the Rail Operator.
36	All works, including hoardings, must be undertaken within the subject land and must not encroach onto the railway land.
37	The permit holder must not at any time erect lighting (permanent or temporary) that spills light onto the railway tracks or which interferes with the visibility of signals and rail lines by train drivers.
38	Building materials (including glass/window/balcony treatments) or advertising signs likely to have an effect on train driver operations along the rail corridor must be shown by a reflectivity and or light study not to cause reflections or glare that may interfere with train driver operations and avoid using red, green or yellow colour schemes or shapes capable of being mistaken for train signals.
39	The permit holder must not install, or cause to be installed, any permanent or temporary ground anchors within the railway land.
40	No building or structure is to be erected that interferes with or restricts train driver lines of sign to train signals.
41	Before the development starts, detailed construction/engineering plans and computations for any construction or works likely to have an impact on railway operations, railway infrastructure assets or railway land are to be submitted and approved by VicTrack, and the Rail Operator (MTM).  The plans must detail all excavation design and controls of the site adjacent to the railway corridor having any impact on the railway land.  The Design Plans to ensure compliance regarding building clearances to aerial power lines as per the applicable Victorian Electrical Safety (Installations) Regulations (particularly Part 3 Division 2) and design loadings where within 20m of the nearest rail track in compliance with AS5100.2-2017 Design Loads.
42	Before development starts, including demolition and bulk excavation, Demolition and Construction Management Plans must be submitted to VicTrack, and the Rail Operator which must be to the satisfaction of VicTrack, and the Rail Operator.  The Construction Management Plan must include details of (but not limited to) management proposals to minimise impacts to VicTrack assets and the operation of the railway during construction and must set out objectives and performance and monitoring requirements for –
(a)	Access to the rail environment, including designation of any areas to be used under license during the construction process.
(b)	Approvals and permits required from VicTrack and the accredited Rail Operator prior to works commencing and prior to accessing the railway land.
(c)	Rail safety requirements that must be adhered to by the permit holder.
(d)	Protection of all rail infrastructure to ensure rail infrastructure is not damaged during demolition or construction.
(e)	Minimising disruption to train services and railway commuter access.
(f)	Management of drainage, effluent, material stockpiles, fencing, hoardings to ensure VicTrack land is not used for, or impacted on by these activities outside of the licence area.
(g)	Public safety, amenity and site security.
(h)	Operating hours, noise and vibration controls.
(i)	Air and dust management.
All demolition and construction works must be carried out in accordance with the approved Demolition and Construction Management Plan. The Demolition and Construction Management Plan must be implemented at no cost to VicTrack, and/or the Rail Operator.
43	Any damage to the Rail Operator’s infrastructure as a consequence of the construction works must be rectified to the satisfaction of the Rail Operator at full cost of the Building Permit Applicant.
Transport for Victoria
44	Before the endorsement of the planning permit plans, or such other time agreed in writing by the Head, Transport for Victoria, the permit holder must prepare and submit to TfV for approval, a safety audit/risk assessment that considers the safety aspects of the proposed design from the perspective of users of the Shared User Path (SUP).
45	Before the development starts, or such other time agreed to in writing by the Head, Transport for Victoria amended plans to the satisfaction of the Head, Transport for Victoria 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 digital copies must be provided.  The plans must be generally in accordance with the plans submitted with the application (dated 28/02/23 Revision 2 prepared by ‘COX Architects’ and ‘BREATHE’ - Project 2173) but modified to show:
(a)	Confirmation of the exit points to the bike track;
(b)	Provision of adequate sightline from the exits to the bike track;
(c)	There is no reliance on VicTrack land for the maintenance of the communication tower on the land;
(d)	Any modifications in accordance with the safety audit/risk assessment (refer to Condition 45 of this permit);
(e)	All buildings and works in compliance with the requirements in the Disability Discrimination Act 1992;
(f)	The external building materials (including glass/window treatments) visible from the railway track must not be reflective or of a red, green or yellow colour palette;
(g)	A notation specifying all walls abutting the railway land must be cleaned and finished with a graffiti resistant finish or identifying alternative measures to reduce the potential for graffiti on the walls abutting the railway land.
Engineering plans
46	Prior to the occupation of the development, the buildings and works shown on the endorsed plans must be completed and maintained to the satisfaction of the Head, Transport for Victoria.
47	Prior to construction of the development commencing (including excavation and demolition) the permit applicant must enter into a construction control and indemnity agreement with Head Transport for Victoria, Victorian Rail Track and the Rail Operator at the cost of the permit applicant.
Traffic Management Plan
48	Before development starts (including demolition and bulk excavation), a Traffic Management Plan must be submitted to and approved by the Head, Transport for Victoria. The Traffic Management Plan must provide for:
(a)	How public transport operations, traffic, walking and cycling movements will be managed during the demolition and construction; and
(b)	How any traffic impact on the railway land and associated infrastructure will be mitigated.
The Traffic Management Plan must be implemented and complied with to the satisfaction of the Head, Transport for Victoria. 
All costs associated with the preparation and implementation of the Traffic Management Plan will be at no cost to the Head, Transport for Victoria. 
The endorsed Traffic Management Plan must not be modified without the prior written consent of the Secretary, Department for Transport.
Demolition and Construction Management Plan
49	Before development starts (including demolition and bulk excavation), a Demolition and Construction Management Plan must be submitted to and approved by the Head, Transport for Victoria. When approved, the Demolition and Construction Management Plan will form a part of this permit.  The Demolition and Construction Management Plan must include (but not be limited to) details of:
(a)	The buildings, works and other measures necessary to:
i	Protect railway land, track, overhead power and associated infrastructure;
ii	Prevent/minimise disruption to the operation of the railway;
(b)	The remediation of any damage to railway land, track, overhead power and associated infrastructure;
(c)	Access to the railway land during demolition and construction of the development (if required);
(d)	Arrangements for:
i	Any hoarding associated with the construction of the development that encroaches onto or overhangs railway land;
ii	The excavation, filling, earthworks or construction associated with the development occurring on or next to the boundary of the railway land;
iii	The deposit or store of waste, fill or other materials associated with the development on the railway land;
iv	Air and dust management;
v	Operating hours;
vi	Noise and vibration controls;
vii	The security of the railway land and associated infrastructure; and
(e)	The safety requirements relevant to the railway land and associated infrastructure and the operation of the railway.
All demolition and construction works must be carried out in accordance with the approved Demolition and Construction Management Plan unless with the prior written consent of the Head, Transport for Victoria. The Demolition and Construction Management Plan must be prepared, implemented and monitored at no cost to the Head, Transport for Victoria. 
The Demolition and Construction Plan must be consistent with any Construction Management Plan required by the Responsible Authority.
Development Contribution Plan
50	 Prior to the issue of a Building Permit in relation to the development approved by this permit, a Development Infrastructure Levy must be paid to Merri-bek City Council in accordance with the approved Development Contributions Plan. The Development Infrastructure Levy is charged per 100 square metres of leasable floor space.
If an application for subdivision of the land in accordance with the development approved by this permit is submitted to Council, payment of the Development Infrastructure Levy can be delayed to a date being whichever is the sooner of the following:
(a)	a maximum of 12 months from the date of issue of the Building Permit; or
(b)	prior to the issue of a Statement of Compliance for the subdivision.
When a staged subdivision is sought, the Development Infrastructure Levy must be paid prior to the issue of a Statement of Compliance for each stage of subdivision in accordance with a Schedule of Development Contributions approved as part of the subdivision.
Environmental Audit
51	Before the construction or carrying out of buildings and works (other than demolition of existing buildings and structures, removal of vegetation, site investigation works necessary to determine the level of contamination on the land, and remediation works), the owner(s) must provide:
(a)	A Preliminary Risk Screen Assessment statement in accordance with the Environment Protection Act 2017 stating that an environmental audit is not required for the use or, if this permit authorises the construction or carrying out of buildings or works, is not required for the use for which the buildings or works are constructed or carried out; or
(b)	An environmental audit statement under Part 8.3 of the Environment Protection Act 2017 must be issued stating that the land is suitable for the use or, if this permit authorises the construction or carrying out of buildings or works, is suitable for the use for which the buildings or works are constructed or carried out; or
(c)	An environmental audit statement under Part 8.3 of the Environment Protection Act 2017 stating that the land is suitable for the use or, if this permit authorises the construction or carrying out of buildings or works, is suitable for the use for which the buildings or works are constructed or carried out, if the recommendations made in the statement are complied with.
52	Where an environmental audit statement is issued for the land, and any recommendation of that environmental audit statement requires any maintenance and/or monitoring of an ongoing nature, the Responsible Authority may require the Owner(s) to enter into an Agreement with the Responsible Authority pursuant to Section 173 of the Planning and Environment Act 1987 that provides for the undertaking of the ongoing maintenance and/or monitoring as required by the environmental audit statement.
53	Where a Section 173 Agreement is required, the Agreement must be executed prior to the commencement of the permitted use, the issue of an Occupancy Permit under the Building Act 1993 or the issue of a Statement of Compliance under the Subdivision Act 1988 (whichever occurs first). All expenses involved in the drafting, negotiating, lodging, registering and execution of the Agreement, including those incurred by the Responsible Authority, must be met by the Owner(s).
54	Prior to any remediation works (if required) being undertaken in association with the environmental audit, a ‘remediation works’ plan to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. The plan must detail all excavation works as well as any proposed structures such as retaining walls required to facilitate the remediation works. Only those works detailed in the approved remediation works plan are permitted to be carried out prior to the issue of an environmental audit statement.
55	No works to construct the development hereby approved (other than demolition of existing buildings and structures, removal of vegetation, site investigation works necessary to determine the level of contamination on the land, and remediation works) shall be carried out on the land and no building contract to construct the development hereby approved may be entered into, other than in accordance with a building contract that stipulates that works must not be commenced until such time as Conditions 52, 53 and 54 of this permit are satisfied.
56	Prior to commencement of the use, the issue of an Occupancy Permit under the Building Act 1993 or the issue of a Statement of Compliance under the Subdivision Act 1988 (whichever occurs first), written confirmation of compliance with all the recommendations of the environmental audit statement must be provided by an environmental auditor appointed under the Environment Protection Act 2017, including confirming that any requirements in the environmental audit statement recommendations regarding verification of works have been complied with. All the recommendations of the environmental audit statement must be complied with to the satisfaction of the Responsible Authority.
57	Where a preliminary risk screen assessment has satisfied Condition 51 (that an environmental audit is not required), the development and use must not deviate from the assumptions or limitations contained in the preliminary risk screen assessment, including but not limited to the layout and design of the development and use of the land without the written consent of the Responsible Authority.  The development and use must accord with any requirements and recommendations of the preliminary risk screen assessment to the satisfaction of the Responsible Authority.
General
58	The pump wet well for the basement is to be designed so that it can cater for 1 per cent AEP instead of 10 per cent as per Section (8) of AS/NZS 3500.3.2018.
59	Prior to the issue of an Occupancy Permit or issue of a Statement of Compliance (whichever comes first), a vehicle crossing must be constructed in every location shown on the endorsed plans to a standard satisfactory to the Responsible Authority (Merri-bek City Council, City Infrastructure Department).
60	Prior to the issue of an Occupancy Permit or issue of a Statement of Compliance (whichever comes first), any existing vehicle crossing not to be used in this use or development must be removed and the kerb and channel, footpath and nature strip reinstated to the satisfaction of the Responsible Authority (Merri-bek City Council, City Infrastructure Department).
61	All commercial parking spaces are to be marked with the associated commercial tenancy number or loading status to facilitate management of the car park to the satisfaction of the Responsible Authority.
62	Prior to the issue of an Occupancy Permit or issue of a Statement of Compliance (whichever comes first), all boundary walls must be constructed, cleaned and finished to the satisfaction of the Responsible Authority.
63	All stormwater from the land, where it is not collected in rainwater tanks for re-use, must be collected by an underground pipe drain approved by and to the satisfaction of the Responsible Authority (Note: Please contact Merri-bek City Council, City Infrastructure Department).
64	Prior to the issue of an Occupancy Permit or issue of a Statement of Compliance (whichever comes first), all telecommunications and power connections (where by means of a cable) and associated infrastructure to the land must be underground or installed to the satisfaction of the Responsible Authority.
65	Prior to the issue of an Occupancy Permit or issue of a Statement of Compliance (whichever comes first), any Council or service authority pole or pit within 1 metre of a proposed vehicle crossing must be relocated or modified at the expense of the permit holder to the satisfaction of the Responsible Authority and the relevant service authority.
66	All external lighting, other than balcony lighting, must be no higher than 1.2 metres above ground level (unless otherwise agreed by the Responsible Authority) with automatic or sensor-controlled lighting installed and maintained on the land to illuminate pedestrian access between dusk and dawn with no direct light emitted onto adjoining property, to the satisfaction of the Responsible Authority.
67	Lighting on each balcony must be designed to not emit light direct onto adjoining property to the satisfaction of the Responsible Authority.
Car-share
68	Five car parking spaces must be reserved for car-share operation at all times (‘Car Share Spaces’).
69	Car Share Spaces must be available to all members of the car-share scheme 24/7 and should be well-lit with safe pedestrian access, to the satisfaction of the Responsible Authority.
70	The car-share operation must be in place within two months of issue of an Occupancy Permit, to the satisfaction of the Responsible Authority.
71	At the request of the Responsible Authority, the car-share operator must report utilisation of the Car Share Spaces to Council (or in accordance with Council’s on-street reporting requirements). This report is to be sent by email to info@merri-bek.vic.gov.au with “Attention Development Engineering” in the subject line.
Section 173 Agreement
72	Prior to the issue of an Occupancy Permit or issue of a Statement of Compliance (whichever comes first) an agreement under Section 173 of the Planning and Environment Act 1987 must be entered into between the owner(s) of the land and the Responsible Authority in a form satisfactory to the Responsible Authority providing for the following:
Pedestrian access/indemnity
(a)	An annexed detailed drawing of the linear publicly-accessible open space area located at the Subject Site's western boundary immediately adjacent to the Upfield Shared Path, generally in accordance with the ground-level western setback marked ‘Upfield Park’ on TP21.10 (Upfield Park);
(b)	The owners of the land hold the responsibility for the on-going maintenance of Upfield Park, to the satisfaction of the Responsible Authority.
(c)	Unrestricted public pedestrian access through Upfield Park for 24 hours a day (364 days a year) unless otherwise agreed in writing to by the Responsible Authority.
(d)	Subject to condition 72(e) and 74(f), public access is to be provided to Upfield Park.
(e)	The owner(s) of the land may use part of Upfield Park for private functions by notifying the Responsible Authority in writing as to the details of the event (date, duration/time, the area to be used for the event) no less than 3 days ahead of the event, up to 5 times per calendar year.
(f)	Notice must be given in accordance with condition 72(e) for use of Upfield Park by the owner(s) of the land, and prior written approval from Council must be obtained for the use of any part of Upfield Park for any private functions which exceed 5 times per calendar year.
(g)	The owners of the land are to indemnify the Merri-bek City Council against any death, injury, damage, costs, or other losses (Claims) associated with the use of the publicly-accessible private land, except to the extent of any Claim arising from the negligent or wilful act or omission of Council, its employees, agents, or contractors;
The agreement must be registered on title. The owner(s) must pay the costs of the Responsible Authority in relation to the preparation, execution and registration of the agreement on title.
3D Model
73	Prior to the commencement of the development, a 3D digital model of the approved development which is compatible for use on Council’s Virtual Merri-bek tools and software for Council and community must be submitted to the satisfaction of the Responsible Authority. The model should be prepared in accordance with Merri-bek City Council’s 3D model submission guidelines. A copy of the 3D model submission guidelines and further information on the Virtual Merri-bek Project can be found at https://www.merri-bek.vic.gov.au/building-and-business/planning-and-building/planning/virtual-merri-bek/#autoAnchor1. In the event that substantial modifications to the building envelope are approved under an amendment to this planning permit, a revised 3D digital model must be submitted to, and be to the satisfaction of the Responsible Authority.
Expiry
74	This permit will expire if one of the following circumstances applies:
(a)	The development is not commenced within three (3) years from the date of issue of this permit;
(b)	The development is not completed within five (5) years from the date of issue of this permit; or
(c)	The use is not commenced within five (5) years from the date of issue of this permit.
The Responsible Authority may extend the period referred to if a request is made in writing before the permit expires; or
•	Within 6 months after the permit expires to extend the commencement date.
•	Within 12 months after the permit expires to extend the completion date of the development if the development has lawfully commenced.

– End of conditions –