VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment LIST	vcat reference Nos. P1615/2023 & P212/2024
Permit Application no. 492/2017/P/D 	
CATCHWORDS	
Section 79 of the Planning and Environment Act 1987 (Vic) – section 81(1)(a) of the Planning and Environment Act 1987 (Vic) – Frankston Planning Scheme – Commercial 1 Zone – Design and Development Overlay (Schedule 14) – Parking Overlay (Schedule 1) – Frankston Major Activity Centre – Building height and scale – Interface with residential properties – Coastal and Kananook Creek impacts – flooding – street activation – Extension of time	

Applicant	OYOB Frankston Project Pty Ltd	
Responsible Authority	Frankston City Council	
Respondents		
P212/2024	Long Island Residents Group Inc.	
	Louise Ann Rawlings	
  	Margaret Howden	
	Port Phillip Conservation Council Inc.	
Referral AuthoritIES		
P212/2024	Department of Transport and Planning	
	Melbourne Water	
SUBJECT LAND	424-426 Nepean Highway
FRANKSTON VIC 3199	
HEARING TYPE	Hearing	
DATE OF HEARING	12, 13 & 15 August 2024	
DATE OF ORDER	13 November 2024	
date of correction	20 November 2024	
CITATION	OYOB Frankston Project Pty Ltd v Frankston CC (Corrected) [2024] VCAT 1018	

Order
Proceedings P1615/2023 and P212/2024
Amended Plans
1	Pursuant to clause 64 of Schedule 1 of the Victorian Civil and 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:	Bruce Henderson Architects	
•	Drawing numbers:	TP-112, TP-200, TP-201, TP-202, TP-203, TP-204, TP-205, TP-206, TP-207, TP-208, TP-208.1, TP-208.2, TP2-08.3, TP-209, TP-210, TP-211, TP-212, TP-213, TP-300, TP-301, TP-302, TP-303, TP-401, TP-402, TP-403, TP-600, TP-601, TP-607, TP-701, TP-702, TP-704, TP-706, TP-708, TP-800, TP-801	
•	Dated:	4 June 2024 (Revision 9)	
PROCEEDING P1615/2023
Permit extension granted
2	In application P1615/2023 the decision of the responsible authority is set aside.
3	Pursuant to section 85(1)(f) of the Planning and Environment Act 1987 (Vic), the development is directed to commence by 13 November 2027 and be completed by 13 November 2029.
proceeding P212/2024
Permit amended 
4	In application P212/2024 the decision of the responsible authority is set aside.   
5	Planning permit 492/2017/P is amended and an amended permit is directed to be issued for the land at 424-426 Nepean Highway Frankston VIC 3199 in accordance with the endorsed plans and the conditions set out in Appendix A.  The amended permit allows: 
•	Buildings and works pursuant to clause 34.01-4 (Commercial 1 Zone); 
•	Buildings and works pursuant to clause 43.02-2 (Design and Development Overlay); and  
•	Reduction in the statutory car parking requirement relating to the commercial tenancies pursuant to clause 52.06-3 (car parking).

Cassandra Rea
Presiding Member		Lorina Nervegna
Member	

Appearances
For OYOB Frankston Project Pty Ltd 	Mr Peter O’Farrell SC and Mr Alex Gelber of Counsel instructed by HWL Ebsworth Lawyers. 
The following witnesses were called:
•	Mr Craig Czarny, Urban Designer from Hansen Partnership Pty Ltd
•	Mr Marco Negri, Urban Planner from Contour Consultants Australia Pty Ltd
•	Mr Russell Fairlie, Traffic Engineer from Ratio Consultants Pty Ltd
•	Ms Leanne Dowey, Landscape Architect from Hansen Pty Ltd
The following witness statement filed and served were relied upon:
•	Mr Chris Goss, Architect and Visual Amenity from Orbit Solutions Pty Ltd	
For Frankston City Council 	Mr Terry Montebello, Partner at Maddocks	
For Long Island Residents Group Inc. 	Ms Jenny Faulkner	
For Louise Ann Rawlings 	In person	
For Margaret Howden 	No appearance	
For Port Phillip Conservation Council Inc. 	Ms Jenny Warfe	
For Department of Transport and Planning 	No appearance	
For Melbourne Water 	No appearance	

Information
Description of proposal	Extend the time associated with the existing planning permit 
Amend an existing permit to allow the construction of a mixed-use apartment building of 14 storeys in the Frankston Metropolitan Activity Centre comprising 105 dwellings with ground level retail premises facing Nepean Highway and Beach Street of 768.2m2 and 318m2 of food and drink premises facing Kananook Creek Boulevard. 	
Nature of proceedings	P1615/2023: Application under section 81(1)(a) of the Planning and Environment Act 1987 (Vic) – to review a refusal to extend the planning permit
P212/2024: Application under section 79 of the Planning and Environment Act 1987 (Vic) – to review the failure to grant an amended permit within the prescribed time.	
Planning scheme	Frankston Planning Scheme	
Zone and overlays	Commercial 1 Zone 
Design and Development Overlay – Schedule 14
Parking Overlay – Schedule 1	
Permit requirements	Clause 34.01-4 to construct a building or construct or carry out works.
Clause 43.02-2 to construct a building or construct or carry out works.
Clause 52.06-3 to reduce car parking requirements (for the retail component of the development)	
Key scheme policies and provisions	Clauses 02.03, 02.04, 11, 12, 13, 15, 16, 17, 18, 19, 34.01, 43.02, 52.06, 58, 65, 71.02 and 74.  	
Land description	The subject land is located on the west side of Nepean Highway and the east side of Kananook Creek Boulevard with frontage to Beach Street in the Frankston Metropolitan Activity Centre. 
It is rectangular in shape with an overall frontage of approximately 42.65 metres to Nepean Highway, a frontage to Beach Street of 66.73 metres and a frontage of approximately 42.47 metres to Kananook Creek Boulevard, totalling an overall area of 2,668m2. 
The subject land is currently vacant and has a fall of approximately three metres generally from east to west.
To the east is the Nepean Highway, which is a 40 metres wide major arterial road with commercial development opposite. 
To the west is Kananook Creek Boulevard which is an 11.5 metres wide road reserve with one-way carriageway with the estuary of Kananook Creek and a mix of generally single storey and some double storey residential dwellings beyond on the Long Island isthmus before the foreshore reserve of Port Phillip Bay.
To the north is Beach Street.  Further to the north is a service station, with frontage to Nepean Highway.  To the west of the service station, with frontage to Beach Street and the Kananook Creek reserve is a double storey motor inn.   
To the south is a row of double storey retail premises with at grade car parking accessed via Kananook Creek Boulevard. 
The surrounding area comprises a diverse building stock including a mix of commercial and residential development. The built form character of the area is beginning to change with mid-rise and taller built forms emerging.	
Tribunal inspection	An unaccompanied site inspection of the site and surrounding area was conducted on day two of the hearing.  	

  Reasons
What ARE these proceedings about?
1	There are two separate, but interrelated, proceedings:
a	P1615/2023 – Review a refusal to extend time; and
b	P212/2024 – Review the failure to grant an amended permit within the prescribed time.
2	Planning permit 492/2017/P (‘permit’) was issued by Frankston City Council (‘council’), at the direction of the Tribunal, on 18 September 2018.  
3	The permit allowed the use and development of the land for a ten to eleven storey building with a maximum height of 33.8 metres comprising of ground floor retail, 63 dwellings and 46 serviced apartments.  Accommodated on-site is 143 car parking spaces.  
4	The permit was not acted upon and expired on the 18 September 2023.  
5	An extension of time has been sought within the prescribed time.  Council refused the extension of time to the permit on the basis of change in relevant planning policy.
6	An amendment application was also submitted in April 2022 which sought changes to the endorsed plans and permit.  The changes before the Tribunal include the removal of the serviced apartments, increase of the number of dwellings to 105, provision of two food and drink premises facing Kananook Creek Boulevard, increase in building height, changes to tower and podium setbacks, and changes to the architectural detailing of the building.  
7	Council has subsequently advised that subject to the amendment application being granted in its form that is before the Tribunal, the council would be supportive of the extension of time request.  Council is also supportive of the amendment application on the basis of the amended plans before the Tribunal.
8	There are four respondents to the amendment application including Port Phillip Conservation Council (‘PPCC’), Long Island Residents Group (‘LIRG’) and two individuals. Melbourne Water and Department of Transport and Planning (‘DTP’) are referral authorities associated with the amendment application.  
9	For the purposes of this decision, the submissions from the respondents have been reported collectively, however each individual’s statement of grounds or submission has been considered individually.  Additionally, the Tribunal had received seven statements of grounds from others that have elected to be a non-party.  These grounds have been taken into account in this decision.  

Figure 1: TP-701.  East (Nepean Highway) Façade Render

Figure 2: TP-702. North-west Render showing the north elevation (Beach Street) and west elevation (Kananook Creek Boulevard)

What is the strategic and policy context?
10	The site is within a Commercial 1 Zone (‘C1Z’) of the Frankston Planning Scheme (‘the scheme’).  The following purposes are relevant:
To create vibrant mixed use commercial centres for retail, office, business, entertainment and community uses.
To provide for residential uses at densities complementary to the role and scale of the commercial centre.
11	Provision of car parking is considered under clause 52.06 (Car parking) of the scheme. Additionally, the site is subject to Parking Overlay (Schedule 1 - Frankston Metropolitan Activity Centre) (‘PO1’) of the scheme which sets out alternative car parking rates associated with food and drink premises, and shops.  The purposes of clause 52.06 are:
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.
12	The site is also included within the Design and Development Overlay - Schedule 14 (‘DDO14’).  
13	Clause 1.0 of the DDO14 contains the following design objectives:
To encourage high quality built form along Nepean Highway that is responsive to its role as a gateway to the Frankston MAC and maintain a pedestrian scale at street level with taller building elements set above and behind.
To ensure development respects sensitive amenity and environmental interfaces including residential interfaces, Kananook Creek and the Frankston Foreshore.
To maintain adequate sunlight access to the public realm and public open spaces at key times of the year.
To encourage built form that creates a high quality backdrop when viewed from the foreshore reserve and Kananook Creek.
To minimise the visual dominance of development when viewed from the foreshore reserve and Gould Street residences.
14	The overlay contains requirements for building height and street wall height, building setback and separation, tower elements, sustainable and adaptive design, solar access, pedestrian links, landscaping and open space, access, car parking, loading area and services. There are also a series of general design requirements and decision guidelines that should also be considered where relevant.
15	The history of structure plans have been outlined in the recent and nearby decision Pace Development Group Pty Ltd v Frankston CC (‘Pace Development decision’) which will not be repeated.
16	Since the hearing, an updated Frankston Metropolitan Activity Centre Structure Plan, September 2024 (‘FMAC SP 2024’) and draft Amendment C160fran has been adopted by council.     
17	The FMAC SP 2024 identifies the site as being within Precinct 4 – ‘Promenade’. This area is envisaged to accommodate a thriving hospitality and entertainment precinct focused on Kananook Creek and Nepean Highway.  Ground level uses will include hospitality, entertainment, and retail, with residential, office, accommodation, and other uses on upper levels.
18	Relevant to the matters in dispute, the FMAC SP 2024 includes objectives relating to matters, including:
•	Encouraging economic investment in the FMAC.
•	Strengthening the FMAC as a regional employment hub.
•	Providing a diversity of housing.
•	Providing high quality built form across the FMAC.
•	Strengthening visual and physical connections to the water.
•	Protecting streets and public places from wind and overshadowing impacts.
•	Ensuring built form contributes to active and people-focused streets and responds to sensitive interfaces and protecting the amenity of existing and future residents.
19	With respect to the application before the Tribunal, there are not significant changes between the Frankston Metropolitan Activity Centre Structure Plan, June 2023 (‘FMAC SP 2023’) and the newly adopted FMAC SP 2024.  It is the FMAC SP 2023 that the preferred height and setback requirements for each precinct has been translated into DDO14 that now forms part of the scheme.
20	In addition to the specific controls outlined above, the application is subject to a suite of State and local policies that broadly encourage intensification, housing diversification and design excellence in and around activity centres and strengthen Melbourne's competitiveness for employment and investment.
21	Clause 02.03-1 (Settlement) in the Municipal Planning Strategy (‘MPS’) describes the strategic directions for the Frankston Metropolitan Activity Centre (‘FMAC’):
The Frankston Metropolitan Activity Centre (MAC) is one of nine Metropolitan Activity Centres for the metropolitan area of Melbourne. It provides a key transport hub and attracts large scale developments, including those of a commercial, residential, health, entertainment and sporting nature that serve a wide catchment. In addition, residential development in and around the centre is increasing.
22	Council outlined the relevant objectives and strategies of the Planning Policy Framework (‘PPF’) at clauses 11, 15, 16, 17 and 18 that provide guidance about the type, location, and anticipated density of new housing in the municipality. 
23	Key policies in the MPS and PPF that are relevant to our consideration include:
•	Clause 02.03-5 (Building form and design) which acknowledges the municipality is undergoing land use and density change such as large scale development in the FMAC. It says council is seeking to facilitate development that is sympathetic to neighbourhood character, environmental and heritage values;
•	Clause 02.03-6 (Housing) which identifies the FMAC as a location for significantly higher density residential development;
•	Clause 02.03-7 (Economic development) which seeks to encourage diversification of the employment base to encourage economic activity to employ residents;
•	Clause 11.01-1L-02 (Frankston Metropolitan Activity Centre) which includes a strategy to enhance the image of the FMAC by building on its unique bayside location. Other strategies are to encourage high density housing and accommodation throughout the FMAC, particularly on vacant or under-utilised sites and buildings and to encourage the provision of focal points and pedestrian circulation through the FMAC; 
•	Clause 15-01-1S (Urban design) and 15.01-2S (Building design) which seeks urban environments and buildings that are safe, healthy, functional, sustainable and enjoyable, and that contribute to a sense of place and cultural identity; and
•	Clause 16.01-1L (Housing supply) which contains a strategy to encourage higher density in and around the FMAC.
24	Given the site’s proximity to Port Phillip Bay and Kananook Creek, we consider the following policies relevant:
•	Clause 02.03-2 (Environmental and landscape values) which has an objective to manage the competing demands between environmental protection, landscape amenity and facilitating development;
•	Clause 02.03-3 (Environmental risks and amenity) which states that careful planning is needed for all major developments proposed in coastal waters, along the foreshore, close to Kananook Creek in terrestrial and riparian ecosystems, and in low lying areas of the Frankston municipality including the FMAC;
•	Clause 12.02-1S (Protection of the marine and coastal environment) which contains strategies including to protect coastal and foreshore environments and improve public access and recreation facilities around Port Phillip Bay by focusing development in areas already developed or in areas that can tolerate more intensive use;
•	Clause 13.01-1S (Natural hazards and climate change) which has an objective to minimise the impacts of natural hazards and adapt to the impacts of climate change through risk-based planning; and
•	Clause 14.02-1S (Catchment planning and management) which has an objective to assist the protection and restoration of catchments, waterways, estuaries, bays, water bodies, groundwater, and the marine environment.
25	In addition to the above policies, peripheral issues of employment, business and transport are addressed, as follows:
•	Clause 17.02-1S (Business) which seeks to encourage development that meet’s the community’s needs for retail, entertainment, office and other commercial services; and
•	Clause 18.01-1S (Land use and transport integration) which seeks to integrate land use and transport and seeks to make jobs and services more accessible by taking advantage of all available modes of transport.  
Procedural issues and rulings 
Kananook Creek Association
26	A request was made for joinder from Kananook Creek Association on day three of the hearing.  We refused to join the Kananook Creek Association as a party of the proceeding, but accepted its statement of grounds and submission under section 98(1)(c) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (‘VCAT Act’).  
Additional submissions
27	After the hearing, the Tribunal was advised by the applicant that council considered at its meeting of the 16 September 2024 the adoption of the FMAC SP 2024 and consideration of the Planning Panel Report for Planning Scheme Amendment C160fran.
28	The Tribunal invited the parties, should they wish, to address the implications of the adoption of the updated structure plan and consideration of the planning panel report.  
29	These additional submissions have been taken into account.
What are the key issues?
30	Firstly, the Tribunal must be satisfied that an extension to the time of the permit is appropriate, and secondly must consider whether the proposed amendments to the permit are appropriate.   
31	This proceeding raises issues regarding the future impacts of significant built form changes along part of the Frankston bayside area.  There is strong community sentiment against the proposal for a 14-storey mixed-use building with 105 dwellings close to Kananook Creek that will clearly be visible from the bayside shoreline and nearby residential properties.
32	Despite this sentiment, the scheme identifies the site within the FMAC. These areas are identified and promoted in the scheme for not only substantial change, but significant intensified development.
33	However, there is tension between a substantial built form change and a sensitive location adjacent to the Kananook Creek and nearby Port Phillip Bay.
34	Having considered the submissions and the evidence, and having inspected the site and the surrounding area, we have concluded that the principal issues in this case can be categorised as follows:
•	Is the extension of time to the existing permit appropriate?
•	Is the proposal acceptable having regard to the site’s physical and strategic contexts?
•	Is the proposed built form an acceptable design response?
•	Does the proposal provide an acceptable response to clause 58?
•	Will the development have an unacceptable impact on the environment?
•	Are the proposed car parking and vehicle access arrangements acceptable?
35	We must decide whether the proposal will produce an acceptable outcome having regard to the relevant policies and provisions in the scheme.  We note that many of the submissions from the respondents were critical of the structure and content of the planning controls with reference to the DDO14, and the intensity of development within an activity centre in an area that is influenced by the sensitive coastal and creek environs.  
36	However, it is important to distinguish that it is not our role to question what the scheme says, but rather to apply it in our decision making as we find it.
37	Net community benefit and sustainable development is central in reaching a conclusion. Clause 71.02-3 (Integrated decision making) of the scheme requires the decision-maker to integrate the range of 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.
38	With this proposed development we must decide whether a permit should be granted and, if so, what conditions should be applied.
39	Having considered all submissions and evidence presented with regard to the applicable policies and provisions of the scheme and assisted by our inspection, we find that it is appropriate to extend the time of the permit, and that the amended permit can be supported.  Our reasons follow.  
Is the extension of time to the existing permit appropriate?
40	Council assessed the extension of time request in accordance with the Kantor principles and determined to refuse the extension of time request.  At the time of the decision (December 2023) council recognised that ‘there has been significant changes to the controls and planning policy applying to the site since the original issue of the permit.’ Since this decision, there have been the adoption of FMAC SP 2024 and Planning Scheme Amendment C160fran on 16 September 2024.
41	With respect to the current controls contained within DDO14, the height of the approved development is in accordance with DDO14 but does not meet the three metre ground floor setback to Kananook Creek Boulevard which is a preferred requirement.  There are also preferred minimum side and rear setback requirements above the street wall that the approved development does not comply on the northern and southern sides.  
42	We agree with council’s observations that ‘there is strong public policy considerations at play.’ The FMAC has been included within the Victorian Government Activity Centres Program that is part of the Victorian Housing Statement for the Decade Ahead 2024-2034 (‘the housing statement’).   
43	There is also the Amendment C160fran Panel Report that was released on 30 August 2024.  
44	All parties to the extension of time proceeding agree it is relevant to have regard to the current planning controls relevant to the site.  But newly adopted strategic policy may weigh in favour of the extension of time, particularly when the focus of the further strategic documents seeks to facilitate development, rather than restrict development.   
45	The applicant relies on Mondib Pty Ltd v Coral Rise Pty Ltd (‘Mondib’).  In particular, at paragraph 53 which states:
In our view, the mandatory consideration which arises by implication under the Peko-Wallsend principles from a consideration of the subject-matter, scope and purpose of the Act, in the context of the discretion in s 69, is the current state of the relevant planning scheme at the time when the extension application is determined. This is consistent with s 60(1)(a) and (b) of the Act which provide for the relevant planning scheme and the objectives of planning in Victoria to be mandatory considerations when applications for a permit are considered. By contrast, strategic plans, policy statements, codes or guidelines adopted by a Minister, government department, public authority or municipal council are only relevant considerations. We can see no reason why the mandatory considerations in extension applications made under s 69 should extend to strategic plans, policy statements, codes or guidelines not found in the planning scheme.
46	Both parties agree that the Tribunal can also consider the amended proposal before the Tribunal in determining the extension of time request.  This is on the basis of the Tribunal’s decision Coburg Quarter Holdings Pty Ltd v Moreland CC and sections 97 and 98(1)(c) of the VCAT Act which allows the Tribunal to act fairly and according to the substantial merits of the case, whilst informing themself on any matter as it sees fit.  
47	Council submits that support for the extension of time ought to be on the basis of the amended proposal that is currently before the Tribunal and that a relevant mechanism should be employed to provide certainty that this occurs.  It says this on the basis that the applicant made submissions at the panel hearing associated with Amendment C160fran to the scheme that sought significant changes to the proposed planning controls that would potentially facilitate a more intense, and different built form outcome on the site.
48	Firstly, we observe that planning scheme amendments and panel processes are not before the Tribunal.  We acknowledge the panel report recently released and are mindful that the planning scheme amendments are not yet finalised.    
49	Secondly, we find that it is beyond the power of the Tribunal to tie the extension of time to the amended permit concurrently before the Tribunal.  
50	We say this on the basis that there is already an obligation on the permit holder to conform with the endorsed plans, if they decide to act on this permit.  We are also mindful that it is unlawful for the Tribunal to take away a right to apply for modifications to a permit where the PE Act and the scheme provides for an application or amendment to be made.  There may be unforeseen circumstances that necessitates changes.  Alternatively, it may be strategic policy that encourages further amendments. 
51	If changes are necessary or desired to the plans following approval, it is appropriate for the council to make an informed decision whether changes are appropriate and undertake an appropriate process to consider those changes.  As such, we also do not consider there to be any advantage in this instance to use section 85(1A) of the PE Act to direct no amendments to the permit by the responsible authority under Division 1A, or any of the other mechanisms suggested by council.
52	In determining the extension of time, we find it appropriate to grant an extension of time to the permit on the following basis:
i	The approved development is generally in accordance with the DDO14 that currently applies to the site.  We say ‘generally in accordance’ on the observations that the preferred height of the development is met, however there are variations to the preferred Kananook Creek Boulevard setbacks and upper podium setbacks.
ii	Recent and current strategy and policy is actively seeking to facilitate development within this major activity centre.  We observe that any change in planning controls will seek to facilitate development, rather than restrict development.  
iii	Great effort has been undertaken to ensure that the amended proposal before the Tribunal has obtained the approval of council and other relevant authorities.
iv	We are able to afford weight to the amended proposal before the Tribunal in determining the extension of time.  The merits of this amended proposal will be considered below.  
v	If there are any changes to the amended proposal before the Tribunal, appropriate assessment of the proposed changes will be necessary. 
53	Given the permit expired on the 18 September 2023, the Tribunal orders will reflect three years to commence development from the date of the Tribunal’s order, and five years to complete the development.  
Is the proposal acceptable having regard to the site’s physical and strategic contexts?
54	It was commonly accepted that the proposed land uses located on the site were appropriate.  The main issue in dispute related to what building scale would be appropriate having regard to the physical site and the strategic policy that applies. 
55	There is a strong community sentiment that Precinct 4 within the FMAC SP 2023 or 2024 will result in too much intensity and density.  The respondents are particularly concerned with the proximity of Precinct 4 (including the site) from the foreshore and creek, and the potential environmental risks including climate change, flooding and shoreline recession.  These concerns largely relate to visibility of the tower elements from notable landmarks and nearby residential properties.  
56	We find that the site enjoys significant strategic support for redevelopment with a mixture of land uses and of a robust scale.  
57	In particular, the locational attributes within the FMAC and policy at clause 02.03-6 encourages a higher density development that provides housing diversity in an area that is well serviced by alternative modes of transport.  The site has excellent connections to services, facilities and employment opportunities.  The recreational and scenic qualities of the foreshore and Kananook Creek will provide additional amenity to future occupiers of the building.
58	The site at present is vacant and therefore its redevelopment will provide a contribution to strengthening the FMAC.  
59	The physical features of the site with frontages to Nepean Highway, Beach Street and Kananook Creek Boulevard allows for ground floor retail, including food and drink premises to provide street activation and surveillance.  These commercial premises will strengthen the vision of Precinct 4 FMAC SP 2023 or 2024 that seeks to enhance offerings in relation to hospitality, entertainment and retail.
60	The generous preferred heights and scales outlined in DDO14 will accommodate a sizeable building in this location.  DDO14 manages the interface between the FMAC and nearby residential properties through the implementation of additional setbacks at upper levels.  DDO14 and relevant policies require a high standard of urban design, to promote urban design excellence which contributes positively to the local context and to respect and enhance sensitive landscape settings especially in activity centres.  More detailed analysis of the acceptability of the urban design response will follow. 
61	Whilst there are some variations to requirements contained within DDO14, we are persuaded that they can be comfortably accommodated on the site.  We say this due to existing and emerging built form of similar height and scale, but also due to the proposed design presented to us.  
62	We agree with the applicant’s submission that it is our role to facilitate development, particularly when strategic policy specifies that activity centres are a preferred location for growth.  
Is the proposed built form an acceptable design response?
63	Council submits that the amended plans are generally consistent with the objectives of the existing DDO14 and the FMAC SP 2023. They say the building now responds in an appropriate manner to the urban context of the subject land, subject to the implementation of council’s conditions in relation to any amendments to the permit.
64	The respondents disagree saying the proposal is too high and will jeopardise the success of the revitalisation of the precinct for outdoor dining, events, and activities with an overbearing shade and wind generating tower. They say the proposed high-rise tower will dominate skyline vistas and mar the panoramic views from the iconic Olivers Hill. It will be seen from across the bay, forever altering the picturesque coastal landscape and views beyond to the Dandenong Ranges.
65	The applicant says the proposal is consistent with the policy expectations of the scheme and the FMAC SP 2023. The subject land is located at the northern end of Precinct 4 in the FMAC. They say that substantial, transformative growth is expected in the FMAC generally, and Precinct 4 specifically.  The Planning and Urban Design Assessment (Tract 2022) and Kananook Creek Built Form Review (September 2022), both of which underpinned the FMAC SP 2023, recognises that development within Precinct 4 will be highly visible from key viewpoints and should be of significant quality to enhance views to the precinct.
66	Mr Negri’s evidence is that: 
At the northern edge of the precinct, the review site is positioned at the forefront of the gateway to Precinct 4. It provides the opportunity for a landmark building to herald the entry into the commercial precinct.’
67	Similarly, Mr Czarny states that the site is a gateway location.  Despite this, it is noted that the Panel Report (Planning Panels Victoria) did not agree that this should be a designated gateway site.  
What is proposed?
68	The proposal is a 14-storey mixed-use development comprising dwellings and retail and commercial space.  The building design is a podium and tower arrangement, with a tiered approach incorporating setbacks at the upper levels.
69	The architecture is contemporary, with a curvilinear façade expression of solid and void elements facing the beach, and a more rectilinear arrangement along the Nepean Highway facade. The materials palette adopts light sandstone tones, which the applicant says reflects the coastal character. Planter boxes above the podium define the street wall expression and upper levels to level nine are set back from property boundaries. The uppermost four levels are further set back from the tower receding from the tower element below. 
70	The architectural details on other elevations respond to the commercial location on which the site sits and is expressed as a more rectilinear form.  
71	Mr Czarny says that in addition to the stepping, the tower has also been designed with clear glazed balustrades that curve at the northern and southern edges.
72	There are 105 dwellings proposed comprising:
•	40 x one-bedroom apartments
•	31 x two-bedroom apartments
•	34 x three-bedroom apartments.
73	The proposal contains 1086.3 sqm of commercial floor area, with tenancies ranging from 123.2 sqm to 620.2 sqm. The podium level of the development is proposed to encompass a range of amenities, including a gym, cinema, private dining facilities, swimming pool and outdoor areas and landscaping.
74	Two food and beverage tenancies are located at basement 1 with a direct interface to Kananook Creek Boulevard and include areas set aside for outdoor dining.
75	Car parking is provided within six levels (basement 1 and 2, ground, mezzanine and level one and two) and bicycle parking is provided at basement 1 and ground level. 
Building height and street wall 
What the DDO14 says
76	Clause 2.1 of the DDO14 recommends a preferred maximum height of 41 metres (12 storeys) above natural ground level and a preferred street wall height of 12 metres.
What the proposal seeks
77	Mr Czarny’s evidence is that the proposal rises 14 storeys to 44.2 metres Australian height datum 49.32 to the roof as measured from the Nepean Highway frontage. Council submits the building has an overall height of approximately 47.1 metres to the top of the rooftop services.
78	The street walls to Nepean Highway, Kananook Creek Boulevard and Beach Street is approximately 12 metres (three storeys) consistent with DDO14. 
79	At Kananook Creek Boulevard council submits that the proposal rises to 43 metres above natural ground level.
What the parties say
80	Council supports the proposed height saying the exceedance is acceptable. Mr Negri states that the nominated heights in DDO14 are not mandatory, and reference is made to heights greater than the preferred 41 metres in table three (i.e. where reference is made to building heights above 42 metres). His evidence is that this indicates that buildings above the preferred height are contemplated by DDO14. 
81	The respondents are strongly opposed to the proposal being higher than the preferred height by 15%. They cite a recent previous Tribunal decision at 438-444 Nepean Highway where the Tribunal in that decision found that preferred heights should be more closely adhered to. They say this development along with other recently approved towers in the precinct will create a wall of towers that will change the character of Frankston forever. 
The Tribunal’s findings
82	We are persuaded that there is strategic policy support for the building and street wall heights proposed in this location. The building proposed here differs in architecture and scale to what was proposed on the site 438-444 Nepean Highway. In that proposal, a connected twin tower expression with a greater site width were adopted and ultimately refused by the Tribunal for a variety of reasons, of which height was just one. In this proposal, the tower form is significantly narrower and upper levels are recessed sufficiently to warrant support. We find the tower and street wall heights acceptable. We are also cognisant of the Panel’s findings that this is not a gateway site and our findings of the acceptability of the height exceedance has not been based on whether the site is, or performs as, a gateway site. 
Building setback and building separation
What the DDO14 says
83	From table 2 of DDO14, the preferred minimum building setback is 3 metres to Kananook Creek Boulevard between Wells and Beach Streets.  The site is in this location. 
84	The site is identified under DDO14 within sub precinct A.  The preferred upper-level setback for the site is five metres from a street wall where the street wall abuts a pedestrian link.  
85	Elsewhere, the preferred upper-level setbacks are: 
•	Five metres from the street wall where it fronts Beach Street, Wells Street and Nepean Highway. 
•	Development above 35 metres or 10 storeys should be set back so it has minimal visibility from the Gould Street properties opposite.  The level of visibility should be measured 10 metres from the rear boundaries of the Gould Street properties.  This is shown in diagram one of DDO14 (refer to figure three).

Figure 3: Diagram one from DDO14.
86	Further setback requirements include: 
Where development shares a common boundary with an adjoining site, provide side and rear setbacks above the street wall height in accordance with the requirements in table three.
Where sites are separated by a laneway, apply side and rear setbacks above the street wall height from the centre of the laneway.
…..
Ensure that sufficient setbacks are provided as needed to allow for vehicle access, car parking and servicing.
87	Table three from DDO14 requires the following setbacks:

What the proposal seeks
88	The proposal is for a tower and podium arrangement in the amended plans that differ from the previously approved development in both architectural expression (and heights) and setbacks. In this proposal, setbacks and building separation dimensions are greater than previously approved. 
89	There is a significant slope in the land which results in one level that sits below ground level to the eastern side of the review site at the Nepean Highway and is elevated above natural ground level on the western side along Kananook Creek Boulevard, where it essentially forms a lower ground level (referred to as basement one). 
90	The preferred upper-level setbacks of five metres required from the street wall along the Nepean Highway and Beach Street is generally satisfied along the Beach Street elevation, with the exception of a small encroachment in the north-eastern corner at level three. Along the Nepean Highway frontage, the setbacks of both the balconies and the external walls to the boundary vary, including encroaching into the five metre setback in some places.
91	A preferred minimum three metres setback to Kananook Creek Boulevard is provided at basement 1 (lower ground level), which street level interface along Kananook Creek Boulevard. There are three steps (at the north-west corner) that encroach into this setback. This is provided to comply with Melbourne Water flooding requirements. Above, parts of the external walls of the mezzanine level and level 1 encroach slightly into this setback, while the balconies of these levels and the communal outdoor area of level two extend to the boundary in some sections in a curvilinear arrangement tapering in and out (i.e. the encroachment is not linear).
92	Above the podium/ street wall, upper-level setbacks to the south/ shared boundary are met in accordance with DDO14. 
93	At Kananook Creek Boulevard, the proposal incorporates a ten metre setback for levels three to eight from the podium below, resulting in a total 13 metres setback to the boundary. Setbacks of the levels above progressively step in, from 15 metres to the level nine balconies to 23 metres to the level 12 balconies. The upper four levels culminate in a 23-metre setback, or an additional ten metres to the lower levels of the tower.

Figure 4: View of south and east elevations looking north along Nepean Highway

Figure 5: View of north (Beach Street) and west (Kananook Creek Boulevard) facades

What the parties say
94	The respondents oppose the setbacks and say the proposal will be highly visible from properties in Gould Street and that the setbacks do not mitigate this visibility. 
95	Mr Negri’s evidence is that the encroachment into the five metre setback in some places on the Nepean Highway façade is acceptable for the following reasons: 
•	The alignment of the building does not follow the angled alignment of the Nepean Highway boundary. 
•	The external walls step in and out rather than sitting on the one plane. Consequently, their setbacks to the front boundary vary, resulting in some sections that exceed the 5 metre setback requirement and some sections that encroach into it. 
•	These sections of encroachment are relatively minor. 
•	Similarly, some sections of the balconies encroach into the setback, but the balustrade are of a lightweight material and of relatively low height. 
•	The distinction between the podium and tower elements remains readily apparent. 
96	Council acknowledges that the building is larger than what was permitted in the previous permit for this site and says it is also large in comparison to the dwellings on Long Island. However, they submit that it is the clear intent of the FMAC SP 2023 to transform Precinct 4 and in particular Precinct 4A provided that the built form addresses the issues identified in the built form assessment that underpinned the FMAC SP 2023 and the current, albeit interim, DDO14. They say this proposal does that and that they would have issued a notice of decision to grant an amended permit had the opportunity arisen. 
The Tribunal’s findings
97	We find the proposal to have largely complied with the setback and building separation requirements in DDO14. We are persuaded by Mr Czarny and Mr Negri’s evidence that encroachments into the preferred (and not mandatory) requirements are inconsequential and that what is now proposed is acceptable and worthy of support. 
98	The applicant has now provided upper-level setbacks to Kananook Creek Boulevard in excess of what is required and demonstrates that the notion of providing minimal visibility has been acknowledged. 
99	In relation to the visual prominence of upper levels presenting to the west (Kananook Creek Boulevard), the current DDO14 includes a ‘minimal visibility’ test. The Panel recommended that the concept of ‘minimal visibility’ should be replaced with an objective for ‘recessive’ upper-level elements. Council has adopted that recommendation in full. 
100	The applicant’s proposal provides upper-level setbacks that are consistent with the exhibited ‘minimal visibility’ envelope, so there should be no doubt that it complies with the objective for ‘recessive’ upper-level elements as adopted by council.
Tower element
What the DDO14 says
101	Clause 2.3 requires the building to have a maximum tower width of 45 metres, with slender forms to reduce visual impact and allow for the sharing of views.  All facades of the tower component are to be articulated.  The general design requirements include the following:
Towers should be designed with slender forms, narrower than 45m width, that maximise spaces between built form elements and minimise detrimental visual impacts to sensitive interfaces including of the foreshore reserve and Gould Street.
What the proposal seeks
102	Council submits that the maximum building width viewed from the Nepean Highway or Kananook Creek Boulevard is in the order of 32 metres. 
What the parties say
103	Mr Czarny says the width is well below the maximum of 45 metres in DDO14 and is not in contention between council and the applicant.
104	The respondents say the tower width measured from east to west is arguably greater than 45 metres and should also be a consideration. Mr Czarny’s evidence is that the intention of the tower width requirement was to enable possible view sharing from the east over Nepean Highway and not from the north. In other words, the width along Beach Street (east to west) is not to be assessed in this part of the requirement, but rather north to south (i.e. the Kananook Creek Boulevard and Nepean Highway tower elevations).
The Tribunal’s findings
105	We agree with Mr Czarny that the tower width requirement is specific to the Nepean Highway and Kananook Creek viewing of the tower elements and not the Beach Street façade. The wording in the DDO14 and FMAC are expressed in a way that points to view sharing from the town centre out to the possible sharing of views to the bay. For this reason we find the tower width acceptable.  
Sustainable and adaptive design 
What the DDO14 says
106	The relevant requirement is to design buildings to support a high level of internal amenity and adaptation over time, including through the provision of minimum floor to floor heights in accordance with the requirements in table four of DDO14.
107	Table four sets out the following preferred minimum floor to floor heights:
•	Preferred minimum floor to floor heights at ground level: 4m
•	Preferred minimum floor to floor heights above ground level to street wall height: 3.5m
•	Preferred maximum street wall height: 
•	3.5m for non-residential uses
•	3.2m for residential uses
What the proposal seeks
108	The proposal does not meet the requirement of floor to floor height set out in DDO14. Rather, at ground level to level three, generally three metre floor to floor heights are provided with the exception of the mezzanine level portion of a retail tenancy showing a ceiling height of four metres. 
What the parties say
109	Council says the proposal does not comply with the floor to floor heights due to car parking being provided for in above ground levels. They say that they are satisfied with what is proposed due to the complexities of site topography, flooding requirements and the location of the site at the edge of the precinct. 
110	Mr Negri’s evidence is that ground floor heights are met for the entries of the retail premises along Beach Street and for the majority of the Nepean Highway frontage. The floor heights are lower where the mezzanine car parking sits above. There is also a retail premises in the south-eastern corner with two floors (ground and mezzanine) that does not have the required heights at either level. Along Kananook Creek Boulevard, the food and beverage premises have only 3.62 metres floor to floor. He says this is a necessary consequence of raising the finished floor levels of these premises to Australian height datum 3.0 to satisfy Melbourne Water requirements, some 800mm above the natural ground level of the footpath. 
111	Mr Negri says that the floor to floor heights for the residential levels in the podium are three metres. Despite this, the heights comply with clause 58 requirements for apartments and are acceptable. The floor to floor heights are acceptable in the context of the complexity of the site (topography, inundation), the design response (internal stepping) and the policy guidelines (12 metre high street wall), providing an acceptable level of adaptability to the commercial premises.
The Tribunal’s findings
112	We find that in this site specific location what is proposed is acceptable and agree that a number of competing complexities of the site topography and building layout restricts a simple and strict application of the requirement.
Solar access
What the DDO14 says
113	The applicable requirements are that new development should not overshadow:
•	The eastern edge of Kananook Creek between 10.00am and 2.00pm on 22 June (winter solstice). 
•	All of the Kananook Creek Trail between 10.00am and 2.00pm on 22 September (spring equinox)
•	Within 7.0 metres of the eastern property boundary of Nepean Highway between 10.00am and 2.00pm on 22 September (spring equinox).
What the proposal seeks
114	The building generally complies with the DDO14 requirements except for some shadow cast over the eastern edge of Kananook Creek up until 10.06am at the winter solstice and a slight encroachment into the seven metre distance along the Nepean Highway at 2:00pm at the spring equinox. 
What the parties say
115	The respondents say that high rise towers would significantly overshadow public spaces including the foreshore, beach, footpaths and walking paths and permanently reduce access to sunlight at the waterway affecting aquatic ecologies and native flora and fauna species.
116	Council and the applicant say that the building largely complies with the DDO14 requirements and that the minor exceedance of overshadowing cast at the winter solstice over the eastern edge of Kananook Creek up until 10.06am is only approximately for six minutes is acceptable. They say that the slight encroachment into the seven metre distance along the Nepean Highway at the 2:00pm spring equinox is also minor.
The Tribunal’s findings
117	We agree that the shadow exceedances are minor at the times and dates specified and are acceptable. We acknowledge the broader concerns of respondents about greater shadowing that will occur in the winter months at different times earlier in the morning, however, these times and dates do not form part of our assessment. The DDO14 is clear about what times and dates are to be assessed and we find what is proposed acceptable. 
Street activation, access, car parking, loading area and services
What the DDO14 says
118	The DDO14 has a set of design requirements regarding the location and height of rooftop services and the way they are to be integrated into the overall design.
119	Basement car parking is encouraged, and where not possible, sleeved car parking arrangements should be provided in street wall levels with active uses. 
120	Clause 2.7 of DDO14 includes that vehicle access to basement car parking should be from Beach Street and Wells Street rather than from Nepean Highway or Kananook Creek Boulevard where possible.  Where vehicle access cannot be provided from laneways and secondary streets, access points should be minimised to reduce disruption to the footpaths and existing on-street car parking, and located to avoid street trees.
121	In terms of street activation, design requirements include activated spaces along Kananook Creek Boulevard and the creek and to discourage a lack of active frontages detrimental to pedestrian activity.
What the proposal seeks
122	From Mr Negri’s evidence the proposal incorporates the following elements:
•	Services and utilities are integrated into the design to achieve a cohesive architectural outcome. 
•	Ground floor utilities and services in the principal facades are minimised and where required are integrated into the overall design. 
•	Rooftop services are recessed from the sides and provided appropriate height screening that has minimal visibility. 
•	Part of the car parking is included in a basement, otherwise it is sleeved within the building and these levels do not present to any of the street frontages as parking. 
•	Access to the car park is from Beach Street.
What the parties say
123	Council and the applicant submit that the requirements for street activation, access and car parking have been successfully integrated in the proposal. Council is satisfied that the proposal will be a positive addition to the FMAC and activate an area on the edge of the precinct that is currently stark and lacking a pedestrian friendly environment. 
124	Mr Czarny says the design of the proposal and the public interfaces to threes sides is high quality architecture designed by experienced and award winning architects. He says the transformation of the Kananook Creek Boulevard that will be enabled by the outdoor cafes and landscaped planters in this development will enhance the local environment for the benefit of the wider community, not just residents in the future apartments and office workers. 
125	He says the above ground car parking is ‘sleeved’ within floor levels so that they will not be visible from the public realm, satisfying the design requirements. 
126	The respondents are concerned that the development will result in exclusive rather than inclusive patronage for the wider community, particularly at the street level interfaces and that the benefits do not outweigh the impact the development will have on the local area. 
The Tribunal’s findings
127	We find that in this proposal a number of positive merits arise from the design of the public/ street interfaces. The Melbourne Water flood level requirement is confined to a small portion of the Kananook Creek Boulevard interface, resulting in a setback area set aside for landscaping and public activation for people of all abilities. 
128	The car park entrance located on Beach Street is the logical location so that potential conflicts with street activation at Kananook Creek Boulevard can be avoided. The sleeved and concealed car parking at levels above ground have been positioned so that the facades do not express above ground car parking and further activation from apartments are possible. 
129	We take no issue with the location and treatment of screening of the rooftop services and as well as the ground level service cupboards and agree these have been designed and located well. 
130	We find the requirements for street activation, access and car parking to be well designed and worthy of support. 
Landscaping and open space
What the DDO14 and clause 58 landscaping objectives say
131	The DDO14 sets out qualitative and quantitative requirements for landscape and open space treatments in terms of what is sought to contribute to the local character and sense of place, as well as metrics for extent of landscaping and where it is to be located.  The DDO14 requirements are as follows:
Provide landscaping throughout sites particularly in ground floor setbacks to provide amenity and attractiveness and contribute to local character and sense of place.
Incorporate landscaping areas that comprise a minimum of 60 per cent of the total front setback area.
Maximise deep soil planting areas in front and rear setbacks to incorporate canopy trees.
Encourage the use of green roofs, walls and balconies to provide additional landscaping and soften the visual impact of buildings particularly in areas that where ground level landscaping would be difficult to accommodate.
Encourage planting themes that use a minimum of 40 per cent indigenous and 40 per cent native species to respect the coastal character of the local area.
Encourage the provision of communal garden spaces at podium and rooftop levels to create amenity for residents, workers and visitors.
132	The landscaping objectives in clause 58.03-5 are dealt with here for clarity and consistency with DDO14.  The objectives are:
To provide landscaping that supports the existing or preferred urban context of the area and reduces the visual impact of buildings on the streetscape.
To preserve existing canopy cover and support the provision of new canopy cover. 
To ensure landscaping is climate responsive, supports biodiversity, wellbeing and amenity and reduces urban heat.
133	Standard D10 under clause 58.03-5 calls for a number of measures to be met and the following have been extracted for those that are relevant to the proposal:
Development should:
•	Provide the canopy cover and deep soil areas specified in Table D2. …
•	Provide canopy cover through canopy trees that are:
•	Located in an area of deep soil specified in Table D3. Where deep soil cannot be provided trees should be provided in planters specified in Table D3.
•	Consistent with the canopy diameter and height at maturity specified in Table D4. 
•	Located in communal outdoor open space or common areas or street frontages.
•	Comprise smaller trees, shrubs and ground cover, including flowering native species.
•	Include landscaping, such as climbing plants or smaller plants in planters, in the street frontage and in outdoor areas, including communal outdoor open space.
•	Shade outdoor areas exposed to summer sun through landscaping or shade structures and use paving and surface materials that lower surface temperatures and reduce heat absorption.
•	Be supported by irrigation systems which utilise alternative water sources such as rainwater, stormwater and recycled water.
•	Protect any predominant landscape features of the area.
•	Take into account the soil type and drainage patterns of the site.
•	Provide a safe, attractive and functional environment for residents.
•	Specify landscape themes, vegetation (location and species), irrigation systems, paving and lighting.
134	For sites greater than 2500 square metres, table D2 specifies 350 square metres of canopy cover is to be provided plus 20% of site area above 2,500 square metres, with a deep soil zone comprising 15% of the site area.  The soil requirements for trees are given in table D3, which we do not replicate here.
What the proposal seeks
135	Ms Dowey’s evidence is that landscaping is proposed on four levels:
•	Basement 1 Level (planting addressing Kananook Creek and Kananook Creek Boulevard).
•	Level 2 Communal Area to the west (predominantly addressing Kananook Creek and Kananook Creek Boulevard). 
•	Level 3 Private terraces/balconies (landscaping to all interfaces). 
•	Level 12 two light courts
136	A total of ten indigenous trees of varying sizes are proposed on the subject site augmented with a palette of indigenous and native shrubs, ornamental grasses, ground covers/cascades and climbing species. A small number of drought tolerant exotic species (aloe, dwarf bay and ground cover rosemary) have been included within the upper floor residential landscaping. Proposed species respond to the proposed built form, local context and adjoining land.
What the parties say
137	The respondents say that the only provision for landscaping at the ground floor setbacks is within planters. They say the lack of ground level vegetation and provision for canopy trees does not provide amenity and attractiveness and contribute to the local character and sense of place. The high site coverage and the basement allows for no deep soil planting areas in front and rear setbacks to incorporate canopy trees.
138	Council say that it wasn’t intended in the FMAC SP 2023 to provide canopy trees in the Kananook Creek Boulevard frontage/ setback and they support the low level planters proposed. 
139	Ms Dowey’s evidence is there is a strong indigenous planting schedule responding to the local environment and DDO14. Her opinion is that the emphasis on tree planting as part of the streetscape is for canopy trees to be located in footpaths and green pockets shown in the Structure Plan. 
140	The deep soil requirement in her opinion is not possible with the basement layout but the proposed landscaping seeks to strike a balance between providing appropriate landscaping (including canopy trees) within the proposed development and the opportunity to deliver a well designed higher density development that makes optimum use of the site, local facilities and services. From her evidence Ms Downey’s opinion is:
The proposed landscape scheme recommends a planting palette that incorporates a mix of predominantly native and indigenous species to all boundaries in keeping with the broader precinct. Indigenous species are best suited to local conditions and in turn will assist with strengthening the landscape character of Kananook Creek and the coastal setting. Furthermore, the use of native and indigenous species will contribute to the broader ecological values of Kananook Creek and the role this waterway plays as a wildlife corridor.
The Tribunal’s findings
141	We are persuaded by Ms Dowey’s evidence that the landscape response is suitable for this development in this specific location and what is proposed will provide a positive landscape response to what is currently a hardscape environment with no landscape contribution.
142	We understand the concerns of respondents in seeking a more generous at grade/ street level deep soil planting zone, however, we find what is proposed is acceptable and will enhance the local environment. 
General design requirements
143	DDO14 contains a comprehensive list of general design requirements which we do not repeat here. The Tribunal is satisfied that the proposal has responded well to what is an exhaustive list of requirements covering architectural responses to façade treatments, materials palette, façade articulation, environmental wind effects and noise influences, landscape treatments and urban design interfaces with the public realm. 
144	A materials board was provided to the Tribunal post hearing and we are satisfied that the quality, tones and textures of the development materials will be a positive response to the local environment and agree with Mr Czarny that they are selected and intended to respond to a coastal character. 
145	We also agree with Mr Negri and council that this proposal is far more preferable than the previous approved permit and that the relationship with west interface, at Kananook Creek Boulevard is an outcome sought by the Structure Plan.
146	Council officers sought to include further curved elements around the building at Beach Street and Mr Czarny supported this suggestion. On the other hand Mr Czarny says that it is unclear why there needs to be consistency in the façade around the corner and the design is acceptable as it is. The architects provided sketches showing how these could be incorporated. However, we find that these changes are unnecessary and agree with Mr Czarny that the architecture is acceptable as is. 
147	One general design requirement is to:
Avoid presenting blank walls to the public realm.
148	During the hearing the Tribunal raised questions on the extent of exposure of a portion of blank walls visible from Nepean Highway on the south façade. An additional submission was made by the applicant during the hearing to incorporate more glazing at this location on upper levels. We accept the submission as a positive change and will require it via a permit condition.
Does the proposal provide an acceptable response to Clause 58?
149	The proposal is subject to the objectives and standards of clause 58 (Apartment developments) of the scheme. Clause 58 of the scheme outlines various elements including urban context, site layout, amenity impacts, on-site amenity and facilities, detailed design and internal apartment amenity.
150	There are a couple of areas of non-compliances of the layout with some individual apartments, identified by Mr Negri.  These matters can be readily resolved through conditions imposed to secure compliance with the relevant clause 58 standards of the scheme.
151	We are satisfied that the proposal will meet the following purposes contained within clause 58 of the scheme:
•	To encourage apartment development that provides reasonable standards of amenity for existing and new residents.
•	To encourage apartment development that is responsive to the site and the surrounding area.
Will the development have an unacceptable impact on the environment?
Coastal Setting
152	It was undisputed that the site is located in proximity of Port Philip Bay.  Many of the respondents raise issue with the potential impact that the intensity of the use and development will have on the more sensitive coastal environment.  They say that the location provides stunning views and this will be compromised by the high density proposed.  Many of the respondents consider the existing controls relating to the FMAC have not had sufficient regard to the coastal environment and nearby residential amenity.
153	It is beyond the role of the Tribunal to comment upon the suitability of including the FMAC within the Victorian Government Activity Centres Program, with it’s proximity to the more sensitive coastal environment.  We also do not agree that objectives seeking to protect coastal locations should outweigh other objectives contained within the scheme that seeks important matters such as business vitality, employment or housing opportunities.
154	The site’s location within the FMAC will result in a more intense redevelopment, and there will be change to the appearance of the area from the beach and other landscape areas.  
Flooding
155	Potential flooding from Kananook Creek was raised by a number of the respondents.  Firstly, we note that Melbourne Water as the relevant floodplain authority offers no objection to the proposal, subject to a minimum floor level being implemented and design of the openings to avoid floodwaters entering the basement.  
156	Whilst we understand that potential flooding has been recognised by the recent published panel report, the Melbourne Water flood mapping project for the local area is in its infancy.  We do not consider it fair, or necessary, to delay this project.  This is the same approach taken by the planning panel.  We say this particularly in light of Melbourne Water having no objection to the proposal before the Tribunal.
Impact upon Kananook Creek
157	A number of the respondents were concerned about the impact that the development would have upon Kananook Creek health and ecology, including:
•	shadowing on various species of seagrass
•	quality and quantity of stormwater runoff
•	climate change, sea rise and impact of shoreline recession   
•	reduction in the aesthetic quality of the creek
•	hampering of efforts to rehabilitate the creek 
•	Night light spill on ecosystems.
158	With respect to the potential impact upon seagrass, we adopt the decision in Pace Development:
Concerns around the effects on seagrasses present within Kananook Creek from overshadowing are not considered significant when considering that solar access and access to daylight will remain accessible for the plants to maintain biological processes. In this regard, we find the impacts from overshadowing of Kananook Creek are acceptable.
159	Conditions will be imposed that requires the provision of a stormwater detention system, construction detailed design plans and drainage computations for stormwater drainage and the incorporation of water sensitive urban design principles to address soil percolation, erosion, stormwater harvesting, and water quality.  The implementation of these conditions meets requirements under clause 53.18 (Stormwater Management in urban development) of the scheme.  
160	This section of Kananook Creek is already in an urban setting.  The proposal will not change the aesthetics of the creek itself given its prime location within the FMAC.  We find that the proposal does not impinge on objectives of clause 12.03-1S (River and riparian corridors, waterways, lakes, wetlands and billabongs) and clause 14.02-1S (Catchment planning and management) of the scheme, as the proposal will not have significant impacts on the maintenance and drainage function of Kananook Creek.  
161	There will be no impact upon the recreational function of Kananook Creek, including the path on the formal side of the creek, and it will remain a pedestrian friendly environment.  
162	With respect to climate change, Melbourne Water, as the drainage authority and floodplain manager has now been satisfied that the proposed development will provide a suitable response to natural hazards and climate change as outlined by clause 13.01-1S (Natural Hazards and climate change) and clause 13.01-2S (Coastal inundation and erosion) of the scheme.   We do not consider this a scenario where new development will be put into harm’s way.  This is because Melbourne Water has considered what flood levels may be anticipated by the year 2100.  We accept Melbourne Water’s approach in this instance using flood predictions based on 76 years in advance.   
163	While there will be light spill onto Kananook Creek, we do not consider that it is necessary to mitigate against any potential light spill from the building.  We find that the building will be located within a highly urbanised area.  We have no evidence that there is any sensitive wildlife nearby that could be potentially harmed by light spill arising from the building.  
164	In fact, urban design principles supports lighting of the public realm to assist in safety and usability of spaces.
Acid Sulfate Soil Risk
165	The PPCC expresses concerns about acid sulfate soils being exposed due to the excavation on the site. They were concerned about the potential for exposure and what assessment and management should be provided to avoid the risks from generating acid sulfate soils and the hazards these types of acidic soils can have on the environment and on any buildings constructed on the site.
166	Clause 12.02-1S and clause 5.0 of DDO14 requires the avoidance of disturbing acid sulfate soils and managing any potential for acid sulfate soils.
167	We consider it sufficient to demonstrate compliance with the above scheme references through a condition imposed on the amended planning permit issued that requires a geotechnical report that specifically addresses the soil conditions and protection techniques from adverse effects consistent with the Victorian Coastal Acid Sulfate Soils Strategy, July 2009.
Wind
168	An updated wind assessment report did not accompany the plans before the Tribunal.  Council suggests a condition that requires a wind assessment report that requires wind tunnel testing, compliance with clause 58.04-4 (Wind impacts) of the scheme in relation to sitting, standing and walking criteria, and necessary modifications to the built form which would assist with wind mitigation.  We consider it appropriate for the final design to demonstrate that the development does not generate unacceptable wind impacts within the site or on surrounding land through the wind assessment report.  
Urban heat island effect and pre-cautionary principle
169	The respondents raise that the development will contribute to urban heat island effect.  Urban heat island effect is a relevant matter addressed in the scheme at clauses 02.03-3 and 15.01-2L-01.  Mr Negri states that the structure plan allocates landscaping elsewhere in the activity centre to combat urban heat island effect.  Council say it is acceptable to consider the urban heat island effect on a precinct wide basis in this case as the matter was considered in the structure planning process and areas have been set aside for greening. We accept Council’s submission in this case.  
Are the proposed car parking and vehicle access arrangements acceptable?
170	Overall, the proposed development provides a surplus of 15 car parking spaces however only 14 spaces have been provided for the staff of the food and drink premises and retail premises, despite having a requirement of 32 spaces.  
171	We accept Mr Fairlie’s analysis that car parking for customers associated with the food and drink premises, and retail premises is not required on the basis that:
•	The site is located within an activity centre which encourages multi purpose trips. 
•	There is a range of public transport options.
•	Sufficient bicycle provision is provided on-site and six spaces.
•	There is demonstrated short-term car parking availability in proximity of the site. 
172	Mr Fairlie has recommended some changes to improve the layout and functionality of the car park and internal access arrangement and to meet requirements contained within clause 52.06 of the scheme.  The changes include:
•	A revised ramp profile between the ground floor level and the mezzanine floor level
•	Provision of 300mm wide kerbs along both sides of the ramps
•	Provision of a pedestrian sightline on the west side of the Beach Street access point at least 50% clear of visual intrusions, measuring 2.0 metres along the street frontage and a depth of 2.5 metres
•	Widen splays at the top of the ramps to accommodate two way movement
•	Widen car space 16 on basement level 1 to a minimum of 2.7 metres wide
•	Increase the westernmost triple garage on basement level 2 to a minimum of 9.2 metres wide on basement level 2 car park
•	A revised ramp profile between level 1 and level 2 car parks
•	Widen the splay on level 1
•	Provide two motocycle spaces 1.2 metres wide by 2.5 metres long
•	Delete motorcycle spaces adjacent to car parking space 11 on level 1
•	Widen car parking space 21 on level 1 to a minimum of 2.9 metres wide
•	Widen car parking spaces 22, 23 and 24 on level 1 to a minimum of 2.7 metres wide
•	Widen the splay on level 2
•	Widen car parking space 21 on level 2 to a minimum of 2.9 metres wide
•	Tandem spaces on level 2 to be provided with 0.5 metres length between each space
•	Relocate car space 1 and 2 on level 2 0.25 metres to west to clear column.  
173	These changes were uncontested by other parties.  We will impose the conditions accordingly.  
174	We also accept the evidence of Mr Fairlie in relation to traffic generation, bicycle provision, loading/ unloading and waste collection will all be adequately accommodated by the development.  
Are there any other issues?
Impacts on views
175	The respondents submit that the proposed development will impact on views to Dandenong Ranges, and views from Olivers Hill and Frankston pier.   
176	If development occurs within the FMAC in accordance with strategic vision within structure plans and planning policy there will be an inevitable change to currently available views to and from landmarks.  However, as new development is introduced, new notable features and views will arise.
177	Specifically, DDO14 includes two design objectives related to views.  They are:
To encourage built form that creates a high quality backdrop when viewed from the foreshore reserve and Kananook Creek. 
To minimise the visual dominance of development when viewed from the foreshore reserve and Gould Street residences.
178	There are two design requirements that also address views.  They are:
Section 2.3: Design buildings with a maximum tower length/width of 45 metres to reduce visual impact and allow for sharing of views
Section 2.8: Design buildings to enhance views from Kananook Creek and Foreshore Reserve.
179	The maximum tower length/ width matter has been addressed above.  
180	Our observations regarding the built form controls relating to the site is that there is no policy encouragement to protect views or reduce views from landmarks available to the building as suggested by the respondents.  
181	In relation to views to and from the Gould Street properties, Diagram 1 of section 2.2 (Building setback and building separation requirements) of DDO14 addresses the interface between the Long Island properties and the potential built form within the FMAC.  While the FMAC will accommodate higher built form, the separation from the Long Island properties by Kananook Creek and Kananook Creek Boulevard, plus additional setbacks to the podium and tower will reduce the dominance of the building as viewed from the Gould Street properties, and conversely reduce views from the new building into established properties.   
Height is not needed to fulfil the predicted population growth
182	Whilst we have heard various submissions regarding the potential for the building to provide additional dwellings, we have not allowed additional height of the building above the preferred height on the basis of need to provide additional dwellings.  We have allowed the additional height above the preferred height on the basis that the design of the building in the context results in an acceptable outcome.  
183	The question of need is often raised in planning matters.  We refer to BAMFA Properties v Manningham CC that states:
There is no policy within the Scheme that calls for need to be demonstrated and there are a number of cases where the Tribunal has considered the relevance of the question of need. The primary finding has been a demonstrated need for a facility or use may be a relevant factor in a decision but lack of a need will rarely, if ever, be a ground for refusing to grant a planning permit.
Precedent 
184	The Tribunal is required to consider each application on its merit and each site will have its own opportunities and constraints.  Whilst there have already been a number of other applications made within proximity to this amendment application, we have applied the facts and circumstances as they appear before us.
What conditions are appropriate?
185	There were only a couple of conditions in dispute between council and the applicant.  
Impact of Melbourne Water’s conditions
186	Council seeks further amended plans to show requirements outlined in Melbourne Water’s conditions.  The elevations at present show most of the ground floor setback to Kananook Creek Boulevard at grade.  We do not consider it necessary to impose a condition that necessitates no steps or ramps within the three metre setback to the Kananook Creek Boulevard, particularly given that this area is to be punctuated by built-in planter boxes.  The steps in the north-west corner will provide practical access to the outdoor dining area associated with food and drink premises 01, whilst also respecting the architectural theme of the building.  
Shadow to Kananook Creek
187	We have omitted the condition to require the applicant to demonstrate there is no shadow cast by the proposed building after 10:06am on Kananook Creek on 22 June which was contested by the applicant.  
188	Shadow to the creek was a matter there were raised by the respondents.  It is relevant to the Tribunal’s determination that the shadow was only six minutes – a minuscule amount.  However, since the preparation of the shadow diagrams and the hearing, the Panel Report and the subsequent adoption of proposed controls under Amendment C160fran have recommended that the shadow to the creek remain as a discretionary control based upon shadow at equinox. 
189	Given the potential change to relevant controls, we do not consider it necessary to require demonstration that there will be no shadow on the creek on the 10:06am on June 22.
Additional glazing to south façade at the Nepean Highway
190	We will include a condition that further glazing to the south façade be provided generally in accordance with the sketches provided by Henderson Architects on day three of the hearing.
Updated wind report
191	It is appropriate to include a permit condition for an updated wind report to demonstrate that environmental wind effects can be managed and or mitigated. 
Conclusion
192	For the reasons given above, the decisions of the responsible authority are set aside.  The permit is extended by three years to commence development from the date of the Tribunal’s order, and five years to complete the development.  An amended permit is also granted, subject to conditions.

Cassandra Rea
Presiding Member		Lorina Nervegna
Member	

Appendix A – Permit Conditions

Permit Application No	492/2017/P/D	
Land	424-426 Nepean Highway
FRANKSTON VIC 3199	

What the AMENDED permit allowS	
In accordance with the endorsed plans:
•	Buildings and works pursuant to clause 34.01-4 (Commercial 1 Zone); 
•	Buildings and works pursuant to clause 43.02-2 (Design and Development Overlay); and  
•	Reduction in the statutory car parking requirement relating to the commercial tenancies pursuant to clause 52.06-3 (car parking).	

Conditions
1	Before the development starts, amended plans to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the plans will be endorsed and will then form part of the permit. The plans must be drawn to scale with dimensions and three copies must be provided. The plans must be generally in accordance with the plans submitted with the application Bruce Henderson Architects, Drawing Nos. TP-200-TP213, TP300- TP303 and TP401-TP403, Revision 9, dated 04 June 2024, but modified to show: 
(a)	Deleted; 
(b)	Deleted; 
(c)	Deleted; 
(d)	Deleted; 
(e)	Deleted; 
(f)	Location of any cooling or heating unit for each dwelling/serviced apartment; 
(g)	Deleted; 
(h)	Building service locations and screening; 
(i)	Deleted; 
(j)	Allocation of car spaces to dwellings, retail space and visitors; 
(k)	Habitable room walls adjacent to communal space/roof garden, lifts or service area to be acoustically treated; 
(l)	Detailed materials, finishes and colour schedule in accordance with condition 21; 
(m)	Deleted; 
(n)	Any changes arising from the Landscaping Plan in accordance with condition 3; 
(o)	Deleted; 
(p)	Deleted; 
(q)	Shadow diagrams and any changes to built form to ensure that the proposal complies with clause 58.03-3 (Solar access to communal open space) which requires ‘at least 50 per cent or 125 square metres, whichever is the lesser, of the primary communal outdoor open space should receive a minimum of two hours of sunlight between 9am and 3pm on 21 June’; 
(r)	Changes to the building including the provision of dimensioned plans and nomination of rooms/spaces demonstrating compliance with standard D18 of clause 58.05-1 (Accessibility), standard D19 of clause 58.05-2 (Building entry and circulation), standard D20 of clause 58.05-3 (Private Open Space), standard D21 of clause 58.05-4 (Storage), standard D22 of clause 58.06-1 (Common property), standard D23 of clause 58.06-2 (Site Services), standard D26 of clause 58.07-1 (Functional layout), standard D27 of clause 58.07-2 (Room depth) and standard D29 of clause 58.07-4 (Natural ventilation) of the Frankston Planning Scheme; 
(s)	A more unified, consistent design expression across the building by incorporating key design elements of the west elevation along the north, east and south elevations; 
(t)	Round off the corner of the ground level planter in north-west corner to replicate curvature of the podium and awning above and delete the handrail; 
(u)	Deletion of the platform lift along the west interface in association with a reconfiguration of level changes within the building to improve integration with, and equitable access between the building and the public realm; 
(v)	Provision of DDA access from the basement 01 car park; 
(w)	Curve the corners of the north-east podium level as presented to Beach Street / Nepean Highway for greater design consistency; 
(x)	Plans to denote all windows at ground level (Basement 01 and Ground Floor) interfacing with the Nepean Highway, Beach Street and Kananook Creek Boulevard as having 75% clear glazing between the heights of 0.5m – 2.0m above the footpath/public realm; 
(y)	Plans to denote all windows within the podium levels above ground level (Ground Floor, Mezzanine, Level 01, 02 and 03) as being clear and free of tinting/obscured glazing; 
(z)	Elevations to accurately denote all proposed materials and finishes; 
(aa)	The street awning to cover the entirety of the north section and extended south to property boundary where it adjoins 428-430 Nepean Highway; 
(bb)	Provision for more fine grain coastal-inspired materials (e.g. stone or weathered timber) within the podium at ground level; 
(cc)	Any changes arising from the Tree Protection Management Plan in accordance with Condition 14; 
(dd)	Any changes arising from the Sustainable Management Plan in accordance with Condition 15; 
(ee)	All ESD initiatives included in the endorsed BESS Report and the Sustainable Management Plan must be identified on the architectural plans including Lighting initiative, WESL star rating for water fixtures, IEQ initiatives and EV charging station; 
(ff)	Any changes arising from the Green Travel Plan in accordance with Condition 17; 
(gg)	Any changes arising from the A Reflected Glare Assessment in accordance with Condition 18; 
(hh)	Any changes arising from the A Wind Assessment Report in accordance with Condition 20; 
(ii)	Nomination of the use/delineation of the two tandem residential parking spaces shown on the Level 02 Plan; 
(jj)	Pedestrian visibility splays at the proposed new crossover; 
(kk)	Address the requirements of Melbourne Water in accordance with Conditions 52, 53 and 54 to the satisfaction of Melbourne Water and the Responsible Authority. 
(ll)	The level 1 corridor accessing apartments 105 and 106 must be widened to at least 1.6 metres; 
(mm)	Adjustments to the basement car parking arrangements as per the recommendations detailed at section 6.1 of Mr Russell Fairlie’s expert evidence statement dated 25 July 2024 and generally in accordance with the drawings attached at Appendix B of the expert evidence statement; 
(nn)	Modification of nooks at ground level on Nepean Highway frontage to mitigate potential unsocial outcomes;
(oo)	Modification of the east end of the south-facing wall including additional glazing generally in accordance with the sketch prepared by Bruce Henderson Architects dated 15 August 2024 (Drawing SKD-401); 
all to the satisfaction of the responsible authority.  
No Alteration or Changes 
2	The development as shown on the endorsed plans must not be altered without the prior written consent of the Responsible Authority. 
Landscaping 
3	Before the development starts, a detailed Landscape Plan consistent with Frankston City Council’s Landscape Plan Guidelines (2020) must be submitted to and approved by the Responsible Authority. When approved, the plan will be endorsed and will then form part of the permit. The plan must be to the satisfaction of the Responsible Authority and prepared by a suitably qualified landscape designer, drawn to scale with dimensions. The plan must be generally in accordance with the landscape plans prepared by Leanne Dowey drawing nos. LCD-000 – LCD-005 (Rev A dated July 2024), but modified to show: 
(a)	Address the plans to be endorsed under Condition 1; 
(b)	Provision of planter boxes within west facing balconies of the Mezzanine Level and Level 01; 
(c)	Plans to identify the location of public, ambient and feature lighting including street lighting, signage illumination, lighting of architectural features such as uplighting/down-lighting etc; 
(d)	A plant species to the north-west planter at ground level to ensure that it is of a height that it does not pose a trip hazard; 
(e)	A Public Realm Plan detailing the following: 
i.	Identification of works for all ‘public realm’ areas within or directly integrating with the development site including for example pedestrian links, footpath connections and extensions, outdoor dining, public seating and parks and recreation areas; 
ii.	The location of lighting including street lighting, pedestrian lighting and feature lighting (including external lighting on the building itself the building itself), bollards, signage and wayfinding, seating, bike hoops, retaining walls, planter boxes, public art, paving, glazing, garden beds/planting areas, bins and balustrades. 
All species selected must be to the satisfaction of the Responsible Authority. 
The landscaping as shown on the endorsed Landscape Plan must be carried out and completed to the satisfaction of the Responsible Authority before the occupation of the development or at a later date for the landscaping of the Public Realm Plan as approved and agreed with the payment of a ‘Incomplete Landscape Works’ bond by the Responsible Authority in writing. 
4	Concurrent with the submission of the amended plans, a landscape management plan must be submitted to and approved by the Responsible Authority. When approved, the plan will be endorsed and will then form part of the permit. The plan must include: 
(a)	Details of the initial Plant Established period; 
(b)	Long term maintenance regime for all landscaped areas including balcony planter boxes and roof garden to include detail on but not limited to the following: maintenance schedule including inspections, weeding, watering and inspection of any irrigation systems, pruning and replacement of any plants that fail, mulching, pest and disease control; 
(c)	Maintenance responsibilities for landscaping.  
5	The landscaping as shown on the endorsed landscape plan must be carried out and completed to the satisfaction of the Responsible Authority before the occupation of the development and/or commencement of the use or at such later date as is approved by the Responsible Authority in writing.  
S173 Agreement 
6	Prior to the commencement of the any building and works, the owner of the land must enter into an agreement with the responsible authority under Section 173 of the Planning and Environment Act 1987 (Vic) in respect to canopy encroachments and to provide for: 
(a)	Public Liability Insurance; 
(b)	Indemnity for City of Frankston and Crown; 
(c)	Continuity of appropriate maintenance to sure the continued safety of the structure and ensure any risk to Public Safety is minimised. 
The Owner must pay all reasonable costs for the preparation, execution and registration of the Section 173 Agreement. 
The section 173 Agreement must be registered in accordance with the provisions of Section 181 of the Planning and Environment Act 1987 (Vic). 
Serviced Apartments 
7	Deleted.
8	Deleted. 
9	Deleted. 
10	Deleted. 
11	Deleted. 
12	Deleted. 
13	Deleted. 
Tree Protection Management Plan 
14	Before works start (including any demolition, levelling of the site, excavations, tree removal, delivery of building/construction materials and/or temporary buildings), a Tree Protection Management Plan (TPMP) prepared in accordance with Frankston City Council’s ‘Arboricultural Report Writing Guide’ must be submitted to and approved by the Responsible Authority. When approved, the plan will be endorsed and will form part of the permit. The TPMP must be prepared by a suitably qualified and experienced Arborist in relation to the management and maintenance of street trees. The TPMP must make specific recommendations in accordance with AS4970: 2009 - Protection of Trees on Development Sites and detail the following where relevant but not limited to ensuring that the trees remain healthy and viable during and following construction: 
(a)	A site plan showing tree protection zones (TPZ) and structural root zones (SRZ), tree protection fence locations and any tree protection fence relocations required where ground protection systems will be used; 
(b)	A clear photograph of each tree; 
(c)	Any specific damage/faults evident within each tree prior to demolition or construction. These photographs must be supplied within the TPMP as a preliminary dilapidation report; 
(d)	Restricted activities in the TPZ; 
(e)	Key supervision and monitoring stages of the development including pre-demolition, pre-construction, and post construction stages. 
(f)	Details of any TPZ encroachments including if necessary.  
i.	details of exploratory root investigation; 
ii.	alternative construction techniques; 
iii.	root pruning; 
(g)	Methods for installation of services e.g., sewerage, storm water, telecommunications, electricity etc.; 
(h)	Remedial pruning works as required including a detailed photographic diagram specifying what pruning will occur; and
(i)	Final Certification of Tree protection template. 
Before the development is occupied or at such later date as is approved by the Responsible Authority in writing, the Final Certification Report Template as required in the Tree Protection Management Plan must be completed and submitted to the satisfaction of the Responsible Authority. 
The provisions, recommendations and requirements of the endorsed Tree Protection Management Plan must be implemented and complied with to the satisfaction of the Responsible Authority. 
Sustainable Management Plan 
15	Before the development starts, an amended Sustainable Management Plan to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the Sustainable Management Plan will be endorsed and will then form part of the permit. The Sustainable Management Plan must be generally in accordance with the Sustainability Management Plan (SMP) prepared by GIW Environmental Solutions and dated 7 June 2024, but modified to: 
(a)	Reflect and address the plans to be endorsed under Condition 1 with no reduction in the commitments and rating nominated under the BESS assessment in the Sustainable Management Plan. 
The provisions, recommendations and requirements of the endorsed Sustainable Management Plan must be implemented and complied with to the satisfaction of the Responsible Authority. 
No alterations to the Sustainable Management Plan may occur without the written consent of the Responsible Authority. 
16	Before the occupation of any building approved under this permit, a report from the author of the Sustainable Management Plan, 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 Sustainable Management Plan have been implemented in accordance with the approved Plan. 
Green Travel Plan 
17	Before the development commences, a Green Travel Plan to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the Green Travel plan will be endorsed and will form part of this permit. The Green Travel Plan must include, but not be limited to, the following: 
(a)	Address the plans to be endorsed under Condition 1; 
(b)	Promote travel alternatives such as public transport, cycling, and walking, 
(c)	Reduce car dependency and greenhouse gas emissions; 
(d)	Manage car parking demands; 
(e)	Improve information and opportunities for those without access to a car, and 
(f)	Include a management and implementation plan. 
The provisions, recommendations and requirements of the endorsed Sustainable Management Plan must be implemented and complied with to the satisfaction of the Responsible Authority.  
Reflected Glare Assessment 
18	Prior to commencement of buildings and works, a Reflected Glare Assessment to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the Reflected Glare Assessment will be endorsed and will form part of this permit. The Reflected Glare Assessment must include, but not be limited to, the following: 
(a)	Address the plans to be endorsed under Condition 1; 
(b)	The applied method used for the reflected glare assessment; 
(c)	Any assessment assumptions; 
(d)	Identification of potential observers receiving glare; 
(e)	Review of materials, finishes and reflectors; 
(f)	Assessment of the proposed development's disability and discomfort glare; 
(g)	Mitigation measure for reflected glare. 
The provisions, recommendations and requirements of the Reflective Glare Assessment must be implemented and thereafter complied with to the satisfaction of the Responsible Authority.  
Geotechnical Report 
19	Prior to the commencement of the development, a geotechnical report prepared by a suitably qualified person must be submitted to and approved by the Responsible Authority. When approved, the Geotechnical Report will be endorsed and will then form part of the permit. The Geotechnical Report must identify the potential for acid sulfate soils and any management recommendations having regard to: 
(a)	Address the plans to be endorsed under Condition 1; 
(b)	The condition of the soil on the site and in the surrounding area; 
(c)	How the development will mitigate detrimental impacts to the soils in the area; 
(d)	How the development will protect itself from any adverse affects from the soils and ground conditions in the area; and
(e)	How the development accords with the Victorian Coastal Acid Sulfate Soils Strategy 2009.
The provisions, recommendations and requirements of the endorsed Geotechnical Report must be implemented and complied with to the satisfaction of the Responsible Authority. 
Wind Assessment Report 
20	Before the development starts, an amended Wind Assessment Report to the satisfaction of the responsible authority must be submitted to and approved by the responsible authority. When approved, the Wind Assessment Report will be endorsed and will then form part of the permit. The Wind Assessment Report must be generally in accordance with the Pedestrian Wind Environment Statement prepared by Windtech, dated 22 May 2023 but modified to: 
(a)	Address the plans to be endorsed under Condition 1 including consideration of any necessary modifications to the built form which would assist with wind mitigation; 
(b)	Include Wind Tunnel Testing; 
(c)	Address the sitting, standing and walking criteria specified in Clause 58.04-4 (Wind Impacts) of the Frankston Planning Scheme.
The provisions, recommendations and requirements of the endorsed Wind Assessment Report must be implemented and thereafter complied with to the satisfaction of the Responsible Authority.  
Materials, finishes and colour schedule 
21	Concurrent with the submission of the amended plans, a colour schedule and sample panel of all external materials and finishes showing materials, colours and finishes, roof and glazing treatments including colour copies suitable for endorsing, must be submitted to the satisfaction and approval by the Responsible Authority. When approved, the schedule will form part of the permit. 
22	No equipment, services, architectural features or structures of any kind, including telecommunication facilities, other than those shown on the endorsed plans shall be permitted above the roof level of the building unless otherwise agreed to in writing by the responsible authority. 
Tree Protection 
23	The development must be undertaken in accordance with Australian Standard AS 4970-2009 Protection of trees on development sites to ensure that the development does not adversely impact on the health, life expectancy and structural stability of any street trees, to the satisfaction of the Responsible Authority.  
24	Prior to the commencement of the development (including vegetation removal), a Tree Protection Fence defined by a 1.8 metre high (minimum) temporary fence constructed using steel or timber posts fixed in the ground or to a concrete pad, with the fence’s panels to be constructed of cyclone mesh wire or similar strong metal mesh or netting with a high visibility plastic hazard tape, must be installed at a radius of not less than the Tree Protection Zone for all street trees adjacent to the site, to the satisfaction of the Responsible Authority. A fixed sign is to be provided on all visible sides of the Tree Preservation Fencing, stating “Tree Preservation Zone – No entry without permission from Frankston City Council”. Fencing must be inspected by a suitable qualified and experienced arborist prior to commencement of construction works. The requirements below must be observed within this area – 
(a)	No vehicular or pedestrian access; 
(b)	The existing soil level must not be altered either by fill or excavation; 
(c)	The soil must not be compacted or the soil’s drainage changed; 
(d)	No fuels, oils, chemicals, poisons, rubbish or other materials harmful to trees are to be disposed of or stored; 
(e)	No storage of equipment, machinery or material is to occur; 
(f)	Open trenching to lay underground services e.g.: drainage, water, gas, etc. must not be used unless approved by the Responsible authority to tunnel beneath; 
(g)	Nothing whatsoever, including temporary services wires, nails, screws or any other fixing device, is to be attached to any tree; 
(h)	Tree roots must not be severed or injured; 
(i)	Machinery must not be used to remove any existing concrete, bricks or other materials. 
Drainage 
25	Provision of a Stormwater Detention System with a volume capable of retarding the 10 year ARI flow from the development site back to a 5 year ARI pre-development value to the satisfaction of the Responsible Authority.  
26	Prior to commencement of development construction detailed design plans and drainage computations of the internal stormwater drainage system including the method of connection to the existing Council drainage infrastructure are to be submitted and approved to the satisfaction of the Responsible Authority. 
27	Water Sensitive Urban Design principles (WSUD) are to be incorporated into the drainage design, which may include but not be limited to the following components or a combination thereof: 
(a)	On-site stormwater detention and rainwater tanks. 
(b)	Soil percolation 
(c)	Stormwater harvesting and Re-use of stormwater for garden watering, toilet flushing, etc 
(d)	On-site ‘bio-treatment’ to reduce dissolved contaminants and suspended solids. 
Vehicles
28	New vehicle crossing shall be constructed to Frankston City Council's standards and specifications to the satisfaction of the Responsible Authority. 
29	All disused vehicle crossing shall be removed and are reinstated to kerb and channel and landscaped to the satisfaction of the Responsible Authority. 
30	Prior to the occupation of the building, areas set aside for parking vehicles, loading bays, bicycles, access lanes and paths as shown on the endorsed plans must be: 
(a)	Constructed to the satisfaction of the Responsible Authority; 
(b)	Properly formed to such levels that they can be used in accordance with the plans; 
(c)	Surfaced with an all-weather sealcoat; 
(d)	Drained and maintained to the satisfaction; 
(e)	Line marked to show the direction in which vehicles are to travel; 
(f)	Sign marked identifying the allocation of car spaces; and 
(g)	Properly lit,
to the satisfaction of the responsible authority.  
Car spaces, access lanes, bicycle facilities, loading areas and driveways must be kept available for these purposes at all times. 
Security Gate 
31	Any security boom, barrier or similar device controlling vehicular access to the premises must be located a minimum of six metres inside the property to allow vehicles to prop clear of Beach Street.  
32	Where the development involves work on or access to Council controlled land including roads, reserves and right of way, the owner, operator and their agents under this permit must at all times take adequate precautions to maintain works to the highest public safety standards, to the satisfaction of the Responsible Authority. 
Precautions must include, appropriate signage to AS 1743 Road Works Signing Code of Practice, the provision of adequate barricading of works, including trenches of Service Authorities and any other road openings, sufficient to ensure public safety. 
All relevant permits must be obtained from Council for works within the existing road reserves, in addition to the planning permit. 
Waste Management conditions 
33	Before the development starts, an amended Waste Management Plan to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the Waste Management Plan will be endorsed and will then form part of the permit. The Waste Management Plan must be generally in accordance with the Waste Management Plan prepared by Leigh Design, dated 7 June 2024 but modified to: 
(a)	Address the plans to be endorsed under Condition 1; 
(b)	Base waste generation rates in Table 1.2 on Sustainability Victoria’s Guide Waste Management and Recycling in Multi-unit Developments; 
(c)	Provide chutes for all waste streams; 
(d)	Apply full generation rates for organic waste; 
(e)	Delete reference to allowing “certified compostable liners” to be used; 
(f)	Ensure that the bin schedule and capacity of bins collection in Table 2 is sufficient for the waste generation of the residential properties based on Sustainability Victoria’s Guide Waste Management and Recycling in Multi-unit Developments; 
(g)	Provide an area for e-waste in the bin store for at least a 120L-240L MGB for residents in addition to the hard waste area allocated. 
The provisions, recommendations and requirements of the endorsed Waste Management Plan must be implemented and complied with to the satisfaction of the Responsible Authority. 
34	All waste generated by the development must be collected by a Private Waste Management Agency to the satisfaction of the responsible authority. 
35	No goods must be stored or left exposed outside the building so as to be visible from any public road or thoroughfare. 
36	No bin or receptacle or any form of rubbish or refuse shall be allowed to remain in view of the public and no odour shall be emitted from any receptacle so as to cause offence to persons outside the land. 
37	The loading and unloading of goods from vehicles must only be carried out within the designated loading bay area on site. 
38	Air-conditioning and other plant and equipment installed on or within the buildings must be so positioned and baffled that any noise emitted complies with the appropriate Australian Standards and EPA requirements. 
Construction and Environment Management Plan 
39	Prior to the commencement of the development, a Construction Management Plan must be submitted to and approved by the Responsible Authority. When approved the plan will be endorsed to form part of the permit. Any plans submitted must be consistent with all other documents approved as part of this permit. The information must be drawn to scale with dimensions and three copies must be provided. The Plan is to include details of the following: 
(a)	Contact Numbers of responsible owner/contractor including emergency/24 hour mobile contact details; 
(b)	Identification of possible environmental risks associated with development works; 
(c)	Response measures and monitoring systems to minimise identified environmental risks, including but not limited to creek protection, vegetation protection, runoff, erosion, dust, litter, noise and light; 
(d)	Location and specifications of sediment control devices on/off site; 
(e)	Location and specification of surface water drainage controls; 
(f)	Proposed drainage lines and flow control measures; 
(g)	Location and specifications of fencing for the protection of trees and/or vegetation as required by the permit; 
(h)	Location of all stockpiles and storage of building materials; 
(i)	Location of parking for site workers and any temporary buildings or facilities; 
(j)	Details to demonstrate compliance with relevant EPA guidelines; 
(k)	Target of recycling and re-using a minimum of 80% of construction and demolition waste by weight; 
(l)	Hours during which construction activity will take place; 
(m)	Traffic management plans that show proposed traffic control measures during construction, the heavy vehicle route to and from the site, loading bay/works zone and access and egress from the site; 
(n)	An Acid Sulphate Management Plan to manage any soil conditions identified in the Geotechnical Report endorsed under Condition 19.
The provisions, recommendations and requirements of the endorsed Construction Environmental Management Plan must be implemented and complied with to the satisfaction of the Responsible Authority. 
Urban Design 
40	All works on or facing the boundaries of adjoining properties must be finished and surface cleaned to a standard that is well presented to neighbouring properties in a manner to the satisfaction of the Responsible Authority. 
41	Mailboxes must be provided within the development to the satisfaction of the Responsible Authority and Australia Post. 
42	All plumbing work, sewer pipes etc. associated with the building must be concealed from general view.  
43	Power and telephone lines to the development must be placed underground from the main points of service outside the boundaries of the site. 
44	All roof plant and equipment must be screened so as not to be visible from public areas. 
45	Outdoor lighting must be provided, designed, baffled and located to the satisfaction of the Responsible Authority to prevent any adverse effect on neighbouring land. 
Amenity 
46	The amenity of the area must not be detrimentally affected by the use or development through the:- 
(a)	Transport of materials, goods or commodities to or from the land; 
(b)	Appearance of any building, works or materials; 
(c)	Emission of noise, artificial light, vibration, smell, fumes, smoke, vapour, steam, soot, ash, dust, waste water, waste products, grit or oil; 
(d)	Presence of vermin; 
(e)	In any other way, 
to the satisfaction of the Responsible Authority.  
47	Unless with the prior written consent of the Responsible Authority, the outdoor dining areas must only operate between the hours of: 
(a)	Monday to Thursday: 		8.00 am to 10.00 pm.
(b)	Friday and Saturday: 			8.00 am to 11.00 pm. 
(c)	Sunday and public holidays: 	8.00 am to 10:00 pm. 
Noise 
48	Noise emissions from the premises must comply with the requirements of EPA Publication 1826/4 ‘Noise limit and assessment protocol for the control of noise from commercial, industrial and trade premises and entertainment venues Part II’ to the satisfaction of the Responsible Authority.  
49	No external sound amplification equipment or loudspeakers are to be used for the purpose of announcement, broadcast, playing of music or similar purpose, except for emergency broadcast, announcement, alarm and siren (including testing). 
Completion of Buildings and Works 
50	Once the development has started it must be continued and completed to the satisfaction of the Responsible Authority. 
Completion Prior to Occupancy 
51	Unless with the further written consent of the responsible authority, the building must not be occupied until all buildings and works as shown on the endorsed plans have been completed to the satisfaction of the responsible authority. 
Melbourne Water 
52	The Finished Floor Levels (FFLs) of all ground floor areas, including all lift and stair lobbies, must be set no lower than 3.0 metres to Australian Height Datum (AHD) (with the exception of transitional areas containing landings, steps or ramps to the satisfaction of Melbourne Water), which is 600mm above the applicable flood level of 2.4m to AHD.  
53	All doors, windows, vents, openings and access points to the basement that could allow entry of floodwaters to the basement levels, must be set no lower than 3.0 metres to Australian Height Datum, which is 600mm above the applicable flood level of 2.4m to AHD. 
54	Prior to the commencement of works a separate application to Melbourne Water must be made and approved of any new or modified storm water connection to Melbourne Water's drains or watercourses. Prior to accepting an application, evidence must be provided demonstrating that Council considers that it is not feasible to connect to the local drainage system. 
Permit Expiry 
55	This permit will expire if: 
(a)	The development has not started within three (3) years of the date of this permit; 
(b)	The development is not completed within five (5) years of the date of this permit. 
In accordance with Section 69 of the Planning and Environment Act 1987 (Vic), an application may be submitted to the Responsible Authority for an extension of the periods referred to in this condition. 
– End of conditions –