VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
administrative DIVISION
planning and environment LIST	vcat reference No. P1959/2018
Permit Application no. MV/958/2017	
CATCHWORDS	
Section 77 of the Planning and Environment Act 1987; Moonee Valley Planning Scheme; Commercial 1 Zone; Heritage Overlay; Multi-level development; Residential hotel; Retail; Policy; Built form; Height; Heritage; Amenity; Car parking; Traffic.	

APPLICANT	Pin Oak Property Holdings Pty Ltd	
responsible authority	Moonee Valley City Council	
Referral Authority	Transport for Victoria	
RESPONDENTs	D Robinson, P Spano and others, R Seifert, Flemington Association Inc., M Milankovic,
J Gallivan	
SUBJECT LAND	320-322 Racecourse Road, Flemington	
WHERE HELD	Melbourne	
BEFORE	Bill Sibonis, Presiding Member
Ann Keddie, Member	
HEARING TYPE	Hearing	
DATEs OF HEARING	6, 7 and 8 March, 2019	
DATE OF ORDER	29 April, 2019	
CITATION	Pin Oak Property Holdings Pty Ltd v Moonee Valley CC [2019] VCAT 541	

Order
1	Pursuant to section 127 and clause 64 of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998, the permit application is amended by substituting for the permit application plans, the following plans filed with the Tribunal:
•	Prepared by:	CHT Architects Pty Ltd	
•	Drawing numbers:	TP000, TP004, TP008, TP009, TP010, TP011, TP012, TP013, TP014, TP015, TP016, TP017, TP021, TP022, TP023, TP024, TP030, TP031, TP034, TP040, TP050, TP051, TP060	
•	Revision	D	
•	Dated:	22/01/2019	
2	In application P1959/2018 the decision of the responsible authority is set aside.
3	In planning permit application MV/958/2017 a permit is granted and directed to be issued for the land at 320-322 Racecourse Road, Flemington, in accordance with the conditions set out in the Appendix.  The permit allows:
•	Demolition;
•	the construction of a six-storey building, plus basements, accommodating residential hotel, shops and associated car parking;
•	the construction and carrying out of works; and
•	use of the land for residential hotel
in accordance with the endorsed plans.
•	Reduction of the car parking requirement associated with the use of the land for shops.

Bill Sibonis
Presiding Member		Ann Keddie
Member	

Appearances
For Pin Oak Property Holdings Pty Ltd	Mr M Naughton, Solicitor of Planning and Property Partners Pty Ltd.  Evidence was called from:
•	Mr M Sheppard, Urban Designer of David Lock Associates (Australia) Pty Ltd
•	Mr A Biacsi, Town Planner of Contour Consultants Australia Pty Ltd
•	Mr B Raworth, Conservation Consultant and Architectural Historian of Bryce Raworth Pty Ltd
•	Mr J Walsh, Traffic Engineer of Traffix Group Pty Ltd
The written evidence of Mr B Watson of Pointilism (photomontages) was tendered.  Mr Watson was not called to give oral evidence.	
For Moonee Valley City Council	Ms L Stupak, Town Planner of LS Planning Pty Ltd	
For P Spano and others	Mr P Spano	
For Flemington Association Inc.	Ms R Iser	
Mr D Robinson, Ms R Seifert and Ms M Milankovic	All in person	

Information
Description of proposal	The construction of a seven-storey building (plus basements) accommodating retail, residential hotel and associated car parking.	
Nature of proceeding	Application under section 77 of the Planning and Environment Act 1987 – to review the refusal to grant a permit.	
Planning scheme	Moonee Valley Planning Scheme	
Zone and overlays	Commercial 1 Zone (C1Z)
Heritage Overlay – Schedule 25, Racecourse Road (HO25)	
Permit requirements	Cl. 71.03-2 and Cl. 34.01-2 (use of land in C1Z for residential hotel)
Cl 34.01-4 (the construction of a building and the construction and carrying out of works on land in C1Z)
Cl 43.01-1 (demolition, the construction of a building and the construction and carrying out of works on land in HO25)
Cl. 52.06 (reduction of the car parking requirement)	
Key scheme policies and provisions	Cl. 11, 15, 17, 18, 21, 22.01, 22.03, 34.01. 43.01, 52.06 and 65	
Land description	The subject land is located on the north side of Racecourse Road in Flemington, between Wellington Street and Pin Oak Crescent.  It is an irregular, L-shaped property with a frontage of 9.65 metres, a maximum depth of 53.96 metres and an overall area of approximately 925 square metres.  It is occupied by a single-storey building accommodating four commercial tenancies and an at-grade car park for 14 vehicles which is accessed from a right-of-way (ROW) connecting to Pin Oak Crescent.  To the north, beyond an intervening ROW are four residential properties which have frontage to Norwood Street.	
	To the east and west are a single-storey and two-storey commercial premises, respectively.  That section of the review site occupied by the car park partially adjoins a ROW, beyond which are commercial properties fronting Pin Oak Crescent.  These properties are occupied by single-storey and two-storey buildings.  On the opposite side of Racecourse Road are a mix of buildings ranging between one and three storeys, used for various retail/commercial purposes.	
Tribunal inspection	An inspection of the review site and surrounds has been undertaken.	

Reasons
What is this proceeding about?
1	In December 2017 an application was made to the Moonee Valley City Council (‘the Council’) to demolish the existing building on the review site and construct a seven-storey building, plus basements, to accommodate retail and residential hotel uses, and associated car parking.  Notice of the application was given and objections were received.  The Council’s officers prepared a report which assessed the proposal against the Moonee Valley Planning Scheme (‘the Planning Scheme’).  The report recommended the grant of a planning permit, subject to conditions.  Contrary to this recommendation, the Council resolved to refuse a permit on grounds which refer to matters of built form, heritage, amenity, car parking, vehicle access and traffic.
2	This is an application to the Tribunal for a review of the Council’s decision.
3	Based on the submissions, the key issues for determination may be summarised as follows:
•	Is the built form an acceptable response to the site’s strategic and physical context, including its location in a Heritage Overlay?
•	Will the proposal result in any unacceptable impacts on the amenity of neighbouring properties?
•	Is an adequate number of car parking spaces provided?
•	Are the vehicle access arrangements and traffic impacts acceptable?
4	Having considered the submissions and evidence, with regard to the relevant policies and provisions of the Planning Scheme, assisted by our inspection, we have determined to set aside the Council’s decision and grant a permit, subject to conditions.  Our reasons follow.
what is the relevant planning context?
Activity centre
5	According to the Council officer’s report, the Council’s submission and Mr Biacsi’s evidence, the site is within the Racecourse Road Activity Centre, identified as a Major Activity Centre in Plan Melbourne.  The land is in the C1Z.  Relevant purposes of the zone are:
•	To implement the Municipal Planning Strategy and the Planning Policy Framework.
•	To create vibrant mixed use commercial centres for retail, office, business, entertainment and community uses.
6	Clause 11.03-1S details planning policy for activity centres.  Its objective is to encourage the concentration of major retail, residential, commercial, administrative, entertainment and cultural developments into activity centres that are highly accessible to the community.  Relevant strategies are:
Build up activity centres as a focus for high-quality development, activity and living by developing a network of activity centres that:
•	Comprises a range of centres that differ in size and function.
•	Is a focus for business, shopping, working, leisure and community facilities.
•	Provides different types of housing, including forms of higher density housing.
•	Is connected by transport.
•	Maximises choices in services, employment and social interaction.
Encourage economic activity and business synergies.
Improve the social, economic and environmental performance and amenity of activity centres.
7	The objective of clause 17.02-1S, Business, is to encourage development that meets the community’s needs for retail, entertainment, office and other commercial services.  Amongst the strategies are locating commercial facilities in planned or existing activity centres.
8	Clause 21.03 of the Municipal Strategic Statement (MSS) sets out the strategic planning vision for the municipality.  For activity centres, the vision is:
To develop economically, environmentally and socially sustainable community places that provide for a range of goods, services, facilities, and diverse housing and transport options to meet the needs of the community now and into the future.
For each activity centre to be a vibrant community place, with commercial, civic, cultural and community value, whilst retaining its own unique identity and character.
9	The objectives and strategies for the municipality’s activity centres are detailed at clause 21.07.  The clause focuses on the implementation of the respective structure plan for each activity centre identified in Plan Melbourne.  It states that ‘Racecourse Road’, along with ‘Union Road’, is identified as an activity centre in Plan Melbourne, but does not set out any objectives, strategies or a Structure Plan for it.
10	Clause 21.08 provides the objectives and strategies for economic development.  Objective 1 is to ensure that new commercial development maximises investment and employment opportunities in activity centres.  Objective 2 is to ensure that new commercial development and uses satisfies the community’s retail, commercial services, entertainment and leisure needs.
Built form
Urban Design
11	Clause 15.01-1S sets out urban design policy.  Its objective is to create urban environments that are safe, healthy, functional and enjoyable and that contribute to a sense of place and cultural identity. The objective of clause 15.01-2S is to achieve building design outcomes that contribute positively to the local context and enhance the public realm.  Related strategies include:
•	Ensure development responds and contributes to the strategic and cultural context of its location.
•	Minimise the detrimental impact of development on neighbouring properties, the public realm and the natural environment.
•	Ensure the form, scale, and appearance of development enhances the function and amenity of the public realm.
•	Ensure buildings and their interface with the public realm support personal safety, perceptions of safety and property security.
12	Similar themes are found in the MSS.  An objective of clause 21.06-4 is to achieve contemporary development that is innovative, legible and designed in a manner that responds to its location and context.  Related strategies refer to:
•	encouraging development that provides an appropriate degree of visual interest and design articulation, and a high standard of amenity for residents;
•	ensuring the siting of new development responds to the opportunities, constraints and features of the site;
•	ensuring development minimises off-site impacts;
•	encouraging new development to apply design techniques (including façade variation, contrast/repetition, colour, texture and detail) that will integrate with its surroundings and create attractive and interesting forms.
13	A further objective of clause 21.06-4 is to ensure that new development of five or more storeys is designed and located to complement the surrounding neighbourhood, and is considerate of off-site impacts.  The related strategies include:
•	Ensure that all new development of five or more storeys makes a positive contribution to an area's character, protecting and contributing to its valued natural, built and community qualities.
•	Ensure that all new development of five or more storeys reinforces the character of the area. Building height, scale and massing are to be derived from the local context, street conditions and local character objectives.
•	Ensure that all new development of five or more storeys provides an appropriate relationship with adjoining buildings, separation between buildings to maximise light, air and outlook.
•	Encourage new development of five or more storeys to achieve the highest architectural standards possible. Design should give careful consideration of building scale and form, movement patterns, and external spaces and their interrelationships.
•	Ensure that new development of five or more storeys contributes to the creation of private and public open spaces that are accessible, attractive, safe and comfortable for their users.
Heritage
14	The land is within HO25.  The purpose of clause 43.01 includes:
To implement the Municipal Planning Strategy and the Planning Policy Framework.
To conserve and enhance heritage places of natural or cultural significance.
To ensure that development does not adversely affect the significance of heritage places.
15	Clause 43.01-8 provides the decision guidelines which must be considered, as appropriate, before deciding on an application. Amongst these are:
The significance of the heritage place and whether the proposal will adversely affect the natural or cultural significance of the place.
Any applicable statement of significance (whether or not specified in the schedule to this overlay), heritage study and any applicable conservation policy.
Any applicable heritage design guideline specified in the schedule to this overlay.
Whether the location, bulk, form or appearance of the proposed building will adversely affect the significance of the heritage place.
Whether the location, bulk, form and appearance of the proposed building is in keeping with the character and appearance of adjacent buildings and the heritage place.
16	Policy in relation to heritage is found at clause 15.03-1S.  The objective of this clause is to ensure the conservation of places of heritage significance.  The related strategies include:
Encourage appropriate development that respects places with identified heritage values.
Retain those elements that contribute to the importance of the heritage place.
Ensure an appropriate setting and context for heritage places is maintained or enhanced.
17	An objective of clause 21.06-2, Heritage, is to protect and conserve places of cultural heritage significance including buildings, streetscapes, gardens and archaeological sites.  A strategy is to ensure the significance of heritage precincts is not diminished by:
•	New development that is inappropriate due its scale, siting or design.
•	Incremental loss of buildings and other features including in the public realm that contribute to its significance.
18	The Local Planning Policy Framework includes a local heritage policy at clause 22.01.  Relevant objectives of this policy are:
To encourage conservation of heritage places in accordance with the principles and procedures set out in the Burra Charter.
To ensure accurate restoration or reconstruction of heritage places.
To maintain the integrity, intactness and significance of heritage places.
To maintain the distinctive historic character and visual cohesion of streetscapes within heritage precincts.
To ensure that alterations and additions and new buildings respect and complement the heritage place.
To avoid alterations, additions or demolition that would result in the incremental or complete loss of significance of a heritage place.
To maintain an appropriate setting for a heritage place including the historic public realm.
19	It is policy to allow complete or partial demolition of non-contributory buildings in a heritage precinct.  In respect of new buildings, it is policy to:
Encourage contextual contemporary design that respects and complements the form, scale, colours, materials, rhythm, siting and spacing of Significant and Contributory buildings.
Discourage new buildings that would be visually dominant.
Discourage new buildings that copy historical styles in detail.
20	According to clause 22.01-5, decision guidelines, it is policy to consider as appropriate the following matters (amongst others) when deciding an application:
•	The significance of the heritage place.
•	The intactness or integrity of the heritage place.
•	For alterations or additions to a building or a new infill building within a precinct, as appropriate:
•	The visibility of the alteration, addition or infill building within the streetscape.
•	The intactness of the streetscape.
•	The form, materials, height and setbacks of Significant and Contributory buildings on surrounding sites.
•	The suitability of the proposed colours and materials.
Transport
21	Strategies in respect of the Principal Public Transport Network (PPTN) are at clause 18.02-2R and include maximising the use of existing infrastructure and increasing the diversity and density of development along the PPTN, particularly at interchanges, activity centres and where principal public transport routes intersect.
22	Policy for car parking is detailed at clause 18.02-4S, the objective of which is to ensure an adequate supply of car parking that is appropriately designed and located.  The related strategies include:
Allocate or require land to be set aside for car parking subject to the existing and potential modes of access including public transport, the demand for off-street car parking, road capacity and the potential for demand management of car parking.
Design and locate local car parking to:
•	Protect the role and function of nearby roads.
•	Enable easy and efficient use.
•	Enable the movement and delivery of goods.
•	Achieve a high standard of urban design and protect the amenity of the locality, including the amenity of pedestrians and other road users.
•	Create a safe environment, particularly at night.
•	Facilitate the use of public transport.
Protect the amenity of residential precincts from the effects of road congestion created by on-street parking.
23	An objective of clause 21.09-3 of the MSS is to increase the numbers of residents and visitors who use public transport.
Is the built form an acceptable response to the site’s strategic and physical context, including its location in a heritage overlay?
24	The Council and the respondents oppose the development’s overall height and its presentation to Racecourse Road, Pin Oak Crescent and the neighbouring residential area to the north.  Put simply, they consider that the development is too tall, and that its height, massing and overall appearance fail to respond acceptably to the site’s context.  The submissions variously referred to the building needing to be reduced to four or five storeys to achieve an acceptable outcome.
25	The review site and the properties extending along Racecourse Road are within HO25.  There is no built form control, such as a Design and Development Overlay, to specify parameters such as height and setbacks to be observed by new development.  We were advised by the parties that a structure plan for the activity centre was prepared by the Council but both the structure plan and the related Amendment C118 were abandoned by the Council in July 2013.  There is no structure plan in place for this activity centre to provide guidance on anticipated land use and built form outcomes.
26	Mr Robinson’s submission, we consider, succinctly expressed the planning principles that are relevant to these proposals.  After observing that the site’s location within a C1Z and major activity centre provides a context where urban consolidation and higher density development is encouraged, he went on to submit (in part):
•	the area can be expected to undergo change, and the relevant criterion of acceptability is not whether the proposal is in keeping with the existing character but whether it sets an appropriate and positive benchmark for future character
•	in the absence of an approved or seriously entertained structure plan or any applicable controls which set out specific built form expectations, the assessment of built form essentially comes down to ‘first principles’, taking into account the existing and future context and character, heritage values and general principles of good urban design.
27	To this we would add the acceptability or otherwise of impacts on the amenity of neighbouring properties and consideration of equitable development opportunities for adjoining sites.
28	The relevant purpose statements and decision guidelines of the Heritage Overlay were set out in the earlier section of these reasons.  In broad terms, what is sought within a heritage context is built form that does not affect the significance of the heritage place.  In this instance, in addition to being within HO25, the land abuts heritage precinct HO24, which encompasses the residential neighbourhood extending to the north.
29	In assessing whether the proposal will adversely affect the significance of the heritage place it is necessary to consider the relevant Statement of Significance.  This was provided by the Council and also reproduced in Mr Raworth’s evidence statement.  According to that Statement, the Racecourse Road precinct is of historic and aesthetic significance to the City of Moonee Valley.  It is of historic significance as the main commercial centre of Flemington and Kensington since the 1880s.  With respect to its aesthetic significance, the Statement reads:
Aesthetically, it is significant as a fine collection of single and double-storey shops characterised by masonry construction embellished with rendered ornamentation.  The form, finish and general ornament allows each period to express its differences from within the basic form and this illustrates a series of milestones in commercial development of the precinct through the Victorian, Edwardian and Inter-War periods (Criterion D & E).
30	The redevelopment of the land to provide a commercial building comprising shops and residential hotel is consistent with the precinct’s historic significance as the main commercial centre of Flemington and Kensington.  The demolition of the existing non-contributory building is consistent with local policy and is not opposed by any party.  We agree with Mr Raworth that the existing single-storey post war structure is of little architectural note and its demolition will not have an adverse impact on the significance of HO25.  Having inspected the site and surrounds, and having considered the submissions and evidence, we also agree with Mr Raworth’s evidence that:
36.	The design of the streetwall is consistent with the surrounding built form in both its siting and scale.  The zero setback from the street follows the typical pattern of surrounding commercial buildings, while the two storey height of the new façade matches the height of the terrace row at 324-330 Racecourse Road to the west, which is appropriate.
37.	The brick materials are in keeping with the masonry materiality of the streetscape, while the tonal variation is interpretive and distinguishes the building as contemporary infill.  The canopy form and position is in line with those to nearby buildings, while the glazed shopfront windows beneath are set in brick plinth, which is a common feature of retail heritage buildings.  At first floor level the two symmetrically placed and vertically oriented windows are respectful of the typical Victorian pattern of fenestration to shop buildings.  The parapeted form of the street wall is also interpretive of a feature that was common to historic commercial buildings, and will conceal the terrace at level two behind.
31	The Flemington Association Inc. is concerned about the asymmetrical placement of the brickwork and windows in the streetwall.  The Council’s Heritage Adviser did not raise any concerns regarding this treatment.  Mr Raworth says that even with some asymmetrical elements it is a reasonable balance between an interpretive approach and consistency with the heritage streetscape.  However, he went on to say that if the brickwork was to be symmetrical, as suggested by the residents, it could also be an acceptable outcome.
32	The City of Moonee Valley Heritage Guidelines (‘the Heritage Guidelines’) prepared by the Council are a reference document to clause 22.01.  The guidelines include:
•	Commercial infill design should be consistent with the scale, building height, historic shopfront design, parapet heights and ornamentation and verandah type (as well as form and height).  In addition, new fenestration details such as window sill and lintel levels and architrave design should be consistent with the patterns of adjacent heritage buildings.
•	Buildings in commercial precincts are often very similar in terms of their scale, siting, and/or architectural detailing.  Shopfronts have typical zero front setbacks and are attached.  Often a regular pattern of parapets and detailing is present.  When a mix of architectural periods is represented, then the adjacent historic buildings’ context should prevail in designing new infill buildings.
33	We consider that the street façade as proposed is acceptable.  In coming to this view, we were assisted by our site inspection, where we observed a variety of façade arrangements in those original buildings that remain.  Whilst the window openings are consistent with nearby older examples, the asymmetry assists in identifying the building façade as a contemporary insertion into the heritage streetscape, as sought by policy to distinguish it from heritage buildings.
34	The Council’s Heritage Adviser did not raise any concerns regarding the impact of the upper levels on the Racecourse Road streetscape.  Rather, her concerns are in respect of the relationship of the building with the ‘historic fabric’ in Norwood Street and Pin Oak Crescent.
35	In Mr Raworth’s opinion, the visual impact of the proposal on Racecourse Road is moderated by the stepped profile of the building, described as a ‘cascading arrangement’, where the upper floors display increasing setbacks as the building rises in height.  He referred to the 10 metre setback at Level 2, increasing to a ‘generous’ 26 metre setback at Level 6.  As a consequence of these setbacks, Mr Raworth observed that in sightlines from directly opposite the site, the levels above the parapet occupy one-quarter of the viewcone.  He considers that, in combination with the lightweight appearance of the glazed wall treatment, the setbacks will mean that the upper levels will read as secondary elements.
36	Mr Raworth acknowledged that the building will have greater visibility in oblique views along Racecourse Road.  In his opinion, the appearance from the west is acceptable as it incorporates a lightwell, and the use of contrasting material gives this elevation an articulated appearance which fragments the mass and adds visual interest.  With respect to the east elevation, Mr Raworth says that the unarticulated wall anticipates future development behind the heritage shopfronts to the east, but that a textured or patterned finish to the precast concrete wall could add visual interest.  Mr Raworth considers that, over time, there will be future development of this scale along Racecourse Road which will act to reduce the relative impact associated with the scale of the development.  He referred to other similar activity centres where multi-storey development is sited to the rear of traditional shopping strips.
37	Mr Sheppard considers that the proposed streetwall integrates successfully into the established streetscape having regard to such consideration as its position on the front boundary for the width of the lot; the parapet height; the proportion of solid to void; the masonry cladding; and the levels and vertical proportions of upper level windows.  He also referred to the shopfront and arcade occupying some 80% of the frontage, and described it as providing good street activation.
38	Mr Sheppard also supports the proposed seven-storey height.  This support is partially based on policy which directs more intensive use of land in higher-order activity centres.  His assessment is that the proposed upper form has been positioned toward the rear of the site to limit the impact on the low-scale streetscape.  Like Mr Raworth, Mr Sheppard referred to the upper levels as occupying approximately one-quarter of the view from the opposite side of Racecourse Road.  He considers that the setbacks from the frontage will reduce the visual presence of the building in oblique views.
39	In respect of the building’s side elevations, Mr Sheppard is satisfied that the treatment (colour and patterning) of the western boundary wall in conjunction with the incorporation of light wells achieves an acceptable outcome.  However, he holds a different view in relation to the blank eastern boundary wall.  He considers it to be too prominent in views along Racecourse Road from the east.  To address this, Mr Sheppard recommended that Level 6 be set back approximately 1.5 metres from the eastern boundary and be finished in a different material, nominating grey metal as an example.  The applicant tendered elevations and photomontages showing Mr Sheppard’s recommendations.
40	The overall height of the proposed development and the appearance of the eastern boundary wall were the subject of substantial criticism by the Council and the respondents.  They consider the building to be too tall in the context of an environment that is characterised by a prevailing scale of between one and three storeys.  The criticism was not confined to the appearance within the Racecourse Road streetscape, but also encompassed the presentation of the building to the neighbouring residential area on rising ground to the north of the activity centre.  This is an issue to which we return below.  The Council’s and respondents’ submissions acknowledged the policy context associated with the site’s location within one of the municipality’s higher order activity centres.  This acknowledgment extends to recognition that taller and more intensive development is anticipated.  While not opposing multi-level development, they submitted that the development should be of a lower height and the presentation of the eastern boundary wall should be modified as it does not represent an acceptable urban design outcome.
41	The Heritage Guidelines include a section addressing ‘development in close proximity to the Heritage Overlay’.  It states that such new development should provide built form transitions in its scale, massing and setbacks that reference the significant characteristics of the heritage place or precinct to ensure a smooth transition between building scales and that surrounding heritage places are not unduly dwarfed or reduced in significance.  Although there was some debate about the applicability of this guideline, we consider it provides useful guidance in our consideration of the acceptability or otherwise of the built form from a heritage perspective.
42	We have not been persuaded that the proposed seven-storey height manifests an acceptable built form in the strategic and physical context of the review site.  At this height, the building will be too tall.  It will not respond in a satisfactory manner to the low-scale and heritage character of the activity centre and will sit as an unduly prominent element within its surrounds.  It will have an unacceptable impact on the adjacent low scale residential neighbourhood under HO24.  There are two changes that we consider should be made to moderate the building’s height to an extent that it introduces the more intensive form contemplated by activity centre policies, but at the same time responds to the modest scale and heritage character of the centre.
43	One level of the building should be deleted.  An overall six-storey height together with the substantial setbacks proposed will represent, we consider, a scale of development that can be accommodated without undue prominence.  This can be achieved by the deletion of Level 4.  We acknowledge that it will be higher than the existing built form, but further multi-level development is likely to occur within the activity centre, particularly to the east where the properties proximate to the site do not support buildings of heritage significance.  Council and the respondents sought a greater reduction in the height, but we do not consider this is warranted or justified in the circumstances of the review site’s location in a higher-order activity centre.
44	The appearance of the eastern boundary wall is a key concern of the Council and respondents.  It is a concern that is to some extent shared by Mr Raworth and Mr Sheppard.  We, too, share this concern.  As proposed, the wall represents a poor urban design outcome and is unacceptable.  It is an unadorned, utilitarian element whose precast concrete construction and grey colour at the upper levels manifests as an unattractive building element.  The changes outlined above will have the consequential effect of reducing the wall’s visual impact.  However, this does not satisfactorily address our concerns regarding the wall’s appearance.  Treatment of the wall surface is required.  To this end, we agree with Mr Raworth and Mr Sheppard that a textured finish of legible depth and articulation should be incorporated to improve the appearance of the concrete wall.  We have not been persuaded that the setback of the top level from the eastern boundary as recommended by Mr Sheppard is necessary, having regard to our requirement that the building be reduced in height by one level.  This modification reduces the extent of the wall and with the treatment suggested by the witnesses will assist in achieving a visually acceptable outcome.
45	Although the proposed configuration of the west wall means that it is less visible, we consider that it too should incorporate a textured finish and will require this treatment as a condition of permit.
46	As a consequence of the reduced height, the development’s impact on the neighbouring heritage area to the north will be reduced.  The upper levels of the development will be set back in excess of 55 metres from Norwood Street.  This distance, in conjunction with the intervening dwellings and the substantial street trees, will assist in moderating the building’s appearance from vantage points within the heritage streetscape.  The deletion of a level, together with an increased setback of the top level from the northern boundary, as discussed below, will reduce the proposed building’s visual impact to an acceptable level in this context.  It will be read and understood as being a development that is within the boundaries of the major activity centre where taller development is anticipated by policy.  At this reduced height, and having regard to the proposed finish of the rear elevation utilising a mix of louvres and slender concrete framing elements, a suitably restrained appearance displaying an appropriate response to its heritage surrounds is achieved.
Equitable development
47	Concerns were expressed that the design response does not allow for the equitable development of the adjoining sites to the east and west.  This was particularly directed to the proposed large blank wall on the eastern boundary.  Mr Sheppard’s evidence is that the proposed boundary walls facilitate the redevelopment of the adjoining narrow sites by enabling them to accommodate buildings constructed to the common boundary.  The provision of lightwells on the western side, adjacent to No. 324, allows the daylight and ventilation while avoiding windows which directly face the adjoining property.  Mr Biacsi, too, considers that the walls on the common boundaries to the east and west enhance the redevelopment prospects of these properties, given their relatively narrow widths.
48	The proposal has been designed to protect its own amenity and not constrain the development potential of the adjoining land to the west by including lightwells onto which windows will face.  This provides the opportunity for a similar response on the neighbouring site and is acceptable.
49	The blank wall to the eastern boundary invites construction to this interface in the event that the adjoining land is redeveloped, without constraint on the design as it avoids any windows facing this neighbouring property, and does not preclude the ability to include lightwells on the eastern side of the adjoining site.
Will the proposal result in any unacceptable impacts on the amenity of neighbouring residential properties?
50	As the land is located to the south of the residential properties in Norwood Street, the development will not cause any detrimental impact on the amenity of these sites by way of overshadowing.
51	With respect to overlooking:
•	at first and second floor levels, the north-facing windows which have a direct outlook are to be fitted with 75% obscure glazing to a minimum height of 1700mm above finished floor level.  The windows which are angled to the north-east are clear-glazed and recessed behind a projecting blade element which would obscure views into the neighbouring properties
•	at third floor level all the north-facing windows are to be fitted with 75% obscure glazing to a minimum of 1700mm above finished floor level
•	Levels 4, 5 and 6 are separated from the rear of the residential properties by a 10.0 metre distance.  This separation exceeds the minimum 9.0 metres usually adopted in the assessment of overlooking, and screening is not proposed.  However, the north elevation of these levels is to be clad with horizontal louvres which will play a role in limiting overlooking by obscuring direct views.
52	The draft conditions circulated by the Council in accordance with the requirements of the Tribunal’s Practice Note PNPE2, Information from Decision Makers, include a requirement for screening of windows in accordance with clause 55.04-6 of the Planning Scheme.  This condition is not opposed by the applicant and we have included it as part of our order.  This will allow the Council to undertake a detailed assessment of the plans to ensure that the necessary measures are in place to limit overlooking of properties to the north without unduly affecting the internal amenity of the development.
53	The principal amenity impact is that of the visual bulk which arises from the height and mass of the proposed development.  Mr Biacsi’s evidence is that having regard to the Major Activity Centre context of a location where intensive development is envisaged, a new building should not be constrained such that it cannot realise a height of seven storeys.  He considers that the proposal strikes a reasonable balance between the “efficient and intensive development of the review site, the outcomes sought by planning policy, the opportunities and constraints of the site, the implications of the HO and proximity to residential properties in the GRZ”.
54	Mr Sheppard’s evidence is that the lower three levels approximate the scale and appearance of a two-storey commercial building, which would be within reasonable expectations for development on this site.  He notes that the proposed angled blades and planters add visual interest.  He goes on to observe that Level 3 is largely glazed, with a lighter-weight appearance than the heavier brick base below.  Levels 4 to 6 are broken up into six vertical modules incorporating two-storey high frames and are further articulated by louvres.  In respect of the overall presentation to the residential properties, his evidence is that, due to the zoning and the activity centre context, it is reasonable for the residential neighbours to see a substantial building.  In his view, the proposed upper level setbacks will ensure that the built form does not overwhelm the backyards, particularly given the buffer created by outbuildings and trees. 
55	As noted above, our conclusion, confirmed by our site inspection, is that the proposed seven-storey height is not acceptable from an urban design and heritage perspective.  The deletion of Level 4 to address this concern will also assist in reducing the height and bulk of the building as it presents to the neighbouring residential properties.  
56	In considering whether any further moderation to the built form is required, we need to balance the constraints imposed on this activity centre by its linear form, heritage attributes and its interface with the heritage residential neighbourhood with policy settings seeking intensification.  We acknowledge the site’s location in a higher-order activity centre, where larger and multi-level buildings are to be reasonably contemplated.  In assessing whether a six-storey building height represents an acceptable outcome in respect of its visual impact on the amenity of the neighbouring properties, we observe that the Norwood Street dwellings to the north of the proposal are relatively modest and are located at the front of deep and relatively narrow allotments.  Their rear private open spaces face the review site. 
57	Redevelopment opportunities for these properties are tempered by the presence of the HO24 making it less likely that they will be candidates for redevelopment in a manner which may have been the case absent the overlay. What this means is that the residential precinct is unlikely to change significantly, notwithstanding its adjacency to the commercial core of a Major Activity Centre.  This is another reason why we find that the proposal is too large in this context and needs to be moderated.  The height, scale and mass of the building as proposed at the rear is too great to achieve an acceptable visual relationship with the residential precinct.  While the deletion of Level 4 will assist in moderating the bulk and overall appearance of the built form, we are not satisfied that it will be sufficient to avoid unacceptable impact of the building bulk on the amenity of the residential properties.  To address this, we will require a reduction in the size of the top level (being the current Level 6, but which will be Level 5 as a consequence of the deletion of Level 4).  We will require a 3.5 metre increase in the northern setback of this level.  If desired, the setback of this level from the southern boundary (Racecourse Road) may be reduced to match that of the level below.  The outcome will be a suitably recessive appearance, which will moderate the visual bulk sufficiently in recognition of the site’s interface with the residential area.
58	Views from their rear yards will be somewhat obscured by vegetation and garage structures along the intervening lane.  With the reduction in height and the increase in the northern setback of the top level, we consider that the proposal achieves a balance between the robust lower portion and the lightweight upper storeys when viewed from further to the north and from Pin Oak Crescent, and consequently its visual impact is lessened.
59	The development will make a significant contribution to the activation of the right-of-way by introducing the hotel and shop uses which will front this space.  An arcade will provide connection through to Racecourse Road.  Such an outcome is consistent with the Council’s adopted Racecourse Road and Pin Oak Crescent Streetscape and Activation Plan (‘the Streetscape and Activation Plan’).  That plan shows the development of a pedestrian link between Pin Oak Crescent and Racecourse Road, which includes the use of the ROW as a shared space with ‘feature paving, landscaping in the form of green walls/facades, improved lighting and public art’.  The proposed shop has restricted visibility from the western end of the right-of-way due to the intervening presence of the substation.  As discussed at the hearing, recessing the substation to align with the entry to the loading bay will allow greater visibility of the shop from west along the right-of-way.  This is an improved outcome which enhances the activation of the right-of-way and encourages use of this thoroughfare by pedestrians.  The applicant does not oppose this modification.
60	The Council’s draft conditions seek an artwork at the eastern end of the laneway.  We are not persuaded that this is necessary and have substituted a condition that requires clear identification of the pedestrian link to Racecourse Road.
Is an adequate number of car parking spaces provided?
61	Clause 52.06-5 specifies a car parking requirement of 3.5 spaces to 100 square metres of leaseable floor area.  This ‘Column B’ rate applies as the land is within the Principal Public Transport Network Area.  Application of this rate to the proposed shops generates a requirement of nine car spaces.  The plans show the provision of three car spaces for the shop use (being for staff use only), and permission is therefore required to reduce the car parking requirement for customers.
62	This reduction is opposed by the Council, principally on the basis that the locality experiences a high occupancy rate for on-street car parking.
63	The evidence included data derived from surveys of on-street parking in the vicinity of the review site, including Racecourse Road, Wellington Street, Pin Oak Crescent, Eastwood Street and Bellair Street.  Those surveys demonstrated that the area experiences a high utilisation of on-street parking.  However, the maximum occupancy at the survey times was 87%, when a total of 224 out of the 258 available spaces were occupied.  This equates to 34 car spaces.
64	Having regard to the survey data, the availability of various modes of public transport and the multi-purpose nature of trips to the activity centre, the reduction of the six retail customer spaces is acceptable.  We also note that the location of the on-site car parking in a basement which is accessed from a ROW makes it unlikely that it would be used by customers.  This is a combination of the resultant ‘wayfinding’ issues, and the uncertainty of securing a car space once in the basement.  This leads us to conclude that customers would elect to seek an on-street car space rather than one within the basement, even if car spaces for customers were provided.
65	Clause 52.06-5 does not specify a car parking requirement for a residential hotel use.  That being so, the car parking must be provided to the satisfaction of the responsible authority.
66	It is proposed to provide 15 car spaces for the 66 hotel rooms.  This provision equates to 0.23 car space per room.  The Council does not support this provision.  It submitted that a parking rate of 0.45 space per room would be appropriate, resulting in a requirement for 30 car spaces.  We were advised that this rate was based on the Council traffic engineers’ experience with other similar developments in the municipality, although specific details of such developments were not provided.  The Council’s position is supported by the respondents, who are concerned that hotel occupants will drive to the area and park in the surrounding residential streets.
67	The evidence is that the car parking provision for the hotel use is acceptable.  This position is based on a survey of a residential hotel in St Kilda, which recorded a utilisation of 17 car spaces at a time when all 67 rooms of that establishment were occupied.  This demand is equivalent to 0.25 car space per room.  We observe that the reduction in room numbers resulting from our requirement to reduce the size of the development will also have the consequence of increasing the parking rate to in the order of 0.27 car space per room.  The evidence is that the proposed car parking supply will dictate the demand as the majority of the surrounding on-street parking is subject to restrictions.  This was confirmed by an annotated map provided by the Flemington Association Inc.  That maps shows that unrestricted parking is available in Bellair Street and Eastwood Street, both extending southward from the opposite side of Racecourse Road.  Further unrestricted parking exists in that part of Pin Oak Crescent, north of Finsbury Street, and in Brighton Street.  The submissions were that these unrestricted spaces are occupied by vehicles owned by commuters who use the nearby Newmarket Railway Station.  The more proximate streets, including Norwood Street, Racecourse Road, Pin Oak Crescent and Wellington Street, are all subject to various restrictions comprising one hour parking, two hour parking and permit zones.
68	Convenient long-term parking is not available in proximity to the review site.  That being the case, and given the well-serviced nature of the location by various modes of public transport including fixed rail, and the existence of a nearby taxi rank in Racecourse Road, we are persuaded that the proposal will not result in demand for on-street parking in the vicinity of the site.  It is not a practical option.  Those hotel patrons wishing to utilise one of the available on-site car spaces will need to make the necessary arrangements at the time of booking.  In the event that a car space is not available, they are likely to seek accommodation elsewhere rather than attempt to find a suitable space in the surrounding street network.  This is a matter which could be addressed in an Operations Management Plan.
69	According to the evidence, four of the car spaces which are located adjacent to a wall do not achieve the minimum 2.9 metre width required to allow for adequate space for door opening.  Mr Walsh stated that, notwithstanding their non-compliant nature, these spaces provide for practical use as door openings is limited on one side.  Given these spaces are constrained, we consider them acceptable if they were restricted to staff use only.  This is on the basis that staff would use these spaces on a regular basis and become familiar with the constraint they impose on access.
Are the vehicle access arrangements and traffic impacts acceptable?
70	The concerns expressed by the Council and the respondents in relation to the use of the ROW for vehicle access to the basement included an inability for vehicles to pass along the length of the lane, and the potential for conflict with pedestrians both within the lane itself and at its intersection with Pin Oak Crescent.
71	Traffic surveys undertaken as part of the evidence showed a peak hour volume of six vehicle movements in the morning and three vehicle movements in the afternoon.  According to the evidence, the hotel use is expected to generate six vehicle movements in each of the peak hours.  The shops are expected to generate two vehicle movements in each of the peak hours.  The traffic generation, therefore, is expected to be eight movements in each of the peak hours.  As the surveys observed two vehicle movements from the existing car park of the review site, the proposal will effectively add up to six movements at peak times.  When this is added to the surveyed peak hour volumes, post-development the ROW is expected to experience a peak hour volume of 12 movements in the morning and nine movements in the afternoon.  This level of traffic generation is within the capacity of the ROW.  On the basis of the evidence, we conclude that the traffic volume generated by the development will not have an unacceptable impact on the operation of the ROW or the wider street network.
72	The ROW is of a single-vehicle width.  The evidence states that, using the Australian Standard for Off-street Parking (AS2890.1-2004) as a guide, 30 or more movements in a peak hour would usually require provision for two vehicles to pass.  In this instance, the projected post-development two-way peak hour volume within the ROW is 12 movements, which would be below this specified capacity.  The single-width nature of the ROW is acceptable for this traffic volume.  The development, however, provides for a setback adjacent to the ROW.  The effect of this driveway is to ‘widen’ the ROW to approximately 5.5 metres at the eastern end of the site and 7.4 metres at the western end, near the ramp access.  This area can be used for passing to facilitate flow along the ROW.  This outcome is beneficial.
73	Concerns were expressed in respect of the potential delays to vehicles seeking to exit onto Pin Oak Crescent from the ROW.  An analysis undertaken as part of the evidence indicates that the average delay in both peak hours would not exceed nine seconds and the 95th percentile queue would be one vehicle.  This analysis incorporated a 20% reduction in the capacity of movements out of the ROW to account for vehicle queues in Pin Oak Crescent and also to give way to pedestrians.  In response to questions, Mr Walsh indicated that even if a 40% reduction was factored in, the outcome would still be acceptable in his opinion.  We have no evidence to the contrary.  We note his suggestion that the introduction of ‘Keep Clear’ marking in Pin Oak Crescent at the intersection with the ROW could be contemplated.
74	The potential pedestrian/vehicular conflict at the intersection of the ROW with Pin Oak Crescent is a key concern of both the Council and the residents.  As development is constructed to the edge of the ROW and the frontage of the Pin Oak Crescent properties, there is general agreement between the parties that visibility at this intersection is constrained.  The ROW is not precisely perpendicular to Pin Oak Crescent. It is slightly angled.  The practical effect of this is that pedestrians proceeding south along the Pin Oak Crescent footpath will have a greater view of vehicles exiting the ROW than those proceeding north.  Exiting drivers would also have a greater view of the south-bound pedestrians.
75	In response to this concern, Mr Walsh suggested the provision of a sign in the ROW advising drivers to give way to pedestrians; the inclusion of a ‘stop line’ in the ROW requiring exiting vehicles to stop before proceeding to move in order to enter Pin Oak Crescent; and the installation of a convex mirror at the footpath to enhance visibility for both drivers and pedestrians.
76	The shared use of the ROW by vehicles and pedestrians is an outcome contemplated by the Streetscape and Activation Plan.  The ROW is a low-speed environment which minimises the potential for any conflict.  Although not wide enough to allow for the construction of a formal footpath, the ROW is of sufficient width to allow a pedestrian to move to the side in order to allow a vehicle to pass.  The projected low level of traffic is conducive to the use of the ROW as a shared space, an outcome supported by the Council.
Conclusion
77	For the reasons given above, the decision of the responsible authority is set aside.  A permit is granted subject to conditions.

Bill Sibonis
Presiding Member		Ann Keddie
Member	

Appendix– Permit Conditions

Permit Application No	MV/958/2017	
Land	320-322 Racecourse Road, Flemington	

What the permit allowS	
•	Demolition;
•	the construction of a six-storey building, plus basements, accommodating residential hotel, shops and associated car parking;
•	the construction and carrying out of works; and
•	use of the land for residential hotel
in accordance with the endorsed plans.
•	Reduction of the car parking requirement associated with the use of the land for shops.	

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.  The amended plans must be drawn to scale with dimensions and an electronic copy must be provided. The amended plans must be generally in accordance with the plans identified as Drawings TP000, TP004, TP008, TP009, TP010, TP011, TP012, TP013, TP014, TP015, TP016, TP017, TP021, TP022, TP023, TP024, TP030, TP031, TP034, TP040, TP050, TP051, TP060, Revision D, prepared by CHT Architects and dated 22/01/2019 but modified to show:
(a)	the introduction of increased patterning, suitable finishes, visual interest and variation to the eastern and western boundary walls.  This must include a textured finish of legible depth and three-dimensional appearance;
(b)	the deletion of Level 4 and the consequential deletion of the Level 5 terrace above;
(c)	the setback of the top floor level from the northern boundary increased by a minimum of 3.5 metres.  The setback of this level from the southern boundary (Racecourse Road frontage) may be reduced to match that of the level directly below;
(d)	the southern wall of the substation set back to align with the entry of the loading bay.  A window must be provided to the west wall of retail space (shop) 02;
(e)	the ground floor wall adjoining the northern right-of-way finished in a manner which assists in the prevention and management of graffiti;
(f)	clear definition of the entry to the development at the eastern end of the right-of-way through the use of colour, graphics or artwork (or the like) to identify the pedestrian link to Racecourse Road;
(g)	material ‘PAV02’ modified as natural sawn bluestone paving, in lieu of natural cobble bluestone paving, with a different size/pattern to ‘PAV01’;
(h)	screening of all north-facing hotel room windows and terraces in accordance with Clause 55.04-6 (Overlooking objective) of the Moonee Valley Planning Scheme;
(i)	the design of the vehicle accessway and ramp gradients in accordance with the requirements of Clause 52.06-9 (Design Standards for Car Parking) and/or Australian Standard AS2890.1-2004, to the satisfaction of the responsible authority.  Ramp gradients must be in accordance with the plans identified as TP008, TP009, TP010 and TP040, all Revision E prepared by CHT Architects and dated 18/02/2019;
(j)	the allocation of car spaces 7, 10, 15 and 18 for use by hotel staff only;
(k)	the location and details of at least one shower and one change room within the ‘end of trip facilities’ within Basement Level 2 in accordance with Clause 52.34-3 (Required Bicycle Facilities) of the Moonee Valley Planning Scheme;
(l)	details and notations for all Water Sensitive Urban Design (WSUD) treatment measures in accordance with the approved STORM Rating Report (refer to Condition No. 3 of this permit);
(m)	any modifications and notations required by the approved Sustainability Management Plan and BESS report (refer to Condition No. 32 of this permit);
(n)	a Landscape Plan (refer to Condition No. 35 of this permit);
(o)	a detailed schedule of all external materials and finishes. The schedule must show the specific material, colour (including colour samples) and finishes of all external walls, roofing, fascias, window frames, screening measures, soffits, vehicle access doors and paving;
(p)	the roller door to the basement entry set back a further 2.0 metres from the right-of-way;
(q)	reduction of the blades/planters in the southern elevation to allow views of the right-of-way from the upper level windows;
(r)	the provision of gates (or other operable barrier) to the northern and southern ends of the arcade.
When approved, these plans will be endorsed and will form part of this permit.
2	The development and use as shown on the endorsed plans must not be altered without the written consent of the responsible authority.
3	An amended STORM Rating Report must be submitted simultaneously with the submission of amended plans in accordance with Condition 1. The STORM Rating Report must obtain a minimum rating of 100% to comply with Clause 22.03-4 Stormwater Management (Water Sensitive Urban Design) of the Moonee Valley Planning Scheme.
4	Before the development starts, all Water Sensitive Urban Design details (relating to the Water Sensitive Urban Design treatment measures nominated in the approved and complying STORM report), such as cross sections and/or specifications, to assess the technical effectiveness of the proposed stormwater treatment measures, must be submitted to, and approved in writing by, the responsible authority.
5	Before the development starts, a Construction and Site Management Plan must be submitted to, and approved by, the responsible authority.  The Construction and Site Management Plan must detail the construction activity proposed and the site and environmental management methods to be used.  The Construction and Site Management Plan must be in accordance with Moonee Valley City Council’s Construction and Site Management Guidelines and Template.
When approved, the Construction and Site Management Plan will be endorsed and will form part of this permit.
The development must be carried out in accordance with the endorsed Construction and Site Management Plan and the provisions, requirements and recommendations of the endorsed Construction and Site Management Plan must be implemented and complied with to the satisfaction of the responsible authority.
6	No later than 30 days after the development is completed, a Water Sensitive Urban Design Maintenance Program must be submitted to, and approved in writing by, the responsible authority which sets out future operational and maintenance arrangements for all Water Sensitive Urban Design measures. The program must include, but is not limited to:
(a)	inspection frequency;
(b)	cleanout procedures;
(c)	as installed design details/diagrams including a sketch of how the system operates; and
(d)	a report confirming completion and commissioning of all Water Sensitive Urban Design Response treatment measures written by the author of the approved Water Sensitive Urban Design Response and STORM or MUSIC model, or licensed installing/commissioning plumber, or similarly qualified person or company. This report must be to the satisfaction of the responsible authority and must confirm that all Water Sensitive Urban Design treatment measures specified in the Water Sensitive Urban Design Response and STORM or MUSIC model have been completed and implemented in accordance with the approved report.
7	Before the development is occupied, all boundary walls must be cleaned and finished to the satisfaction of the responsible authority.
8	The materials, colours, decoration and/or finishes to be applied to the exterior of the building or works as shown on the endorsed plans / schedules must not be altered without the consent of the responsible authority.
9	Service units, including air conditioning units, must not be located on any of the balconies or terrace areas unless appropriately visually and acoustically screened to the satisfaction of the responsible authority.
10	Floor levels shown on the endorsed plans must not be altered or modified without the prior written consent of the responsible authority.
11	Before the development is occupied, any privacy screens and other measures to prevent overlooking as shown on the endorsed plans must be installed in accordance with Clause 55.04-6 (Overlooking objective) of the Moonee Valley Planning Scheme to the satisfaction of the responsible authority.
All privacy screens and other measures to prevent overlooking as shown on the endorsed plans must at all times be maintained to the satisfaction of the responsible authority.
12	All pipes, fixtures, fittings, ducts and vents servicing any building on the land, other than stormwater downpipes and gutters above the ground floor storey of the building, must be concealed in service ducts or otherwise hidden from view to the satisfaction of the responsible authority.
13	Before the development is occupied, the areas set aside for the parking of vehicles, together with the associated driveways and access lanes as shown on the endorsed plans must be:
(a)	constructed;
(b)	available for use in accordance with the endorsed plans;
(c)	properly formed to such levels and drained so that they can be used in accordance with the endorsed plans;
(d)	finished with a permanent trafficable surface (such as concrete, asphalt or paving); and
(e)	line-marked or provided with another adequate means of ensuring that the boundaries of all vehicle spaces are clearly indicated on the ground
in accordance with the endorsed plans to the satisfaction of the responsible authority.
The area set aside for the parking of vehicles, together with the associated driveways and access lanes as shown on the endorsed plans must:
(f)	be maintained and made available for such use; and
(g)	not be used for any other purpose,
to the satisfaction of the responsible authority.
14	The loading and unloading of vehicles (including waste collection) and the delivery of goods to and from the land must:
(a)	only be carried out within the designated loading bay on the land; and
(b)	must not disrupt the circulation and parking of vehicles, pedestrian circulation or access
to the satisfaction of the responsible authority.
15	Bicycle parking spaces, access, lockers and compounds, associated showers and change rooms, must be provided, maintained and kept available for these purposes at all times to the satisfaction of the responsible authority.
16	Before the development is occupied, the east/west right-of-way from Pin Oak Crescent must be reinstated to good condition to the satisfaction of the responsible authority.  All costs associated with the reinstatement of the right-of-way must be borne by the owner. 
17	The right-of-way must be widened, as shown on the endorsed plans.  The widened section must be constructed in bluestone.  All costs associated with widening of the right-of-way must be borne by the permit holder.
Before the development starts, detailed engineering drawings to show the widening of the right-of-way must be submitted to, and approved by, the responsible authority.  The widening of the right-of-way must be completed before the development is occupied.
18	Provision must be made for the drainage of the land including landscaped and pavement areas. The discharge of water from the land must be controlled around its limits to prevent any discharge onto any adjoining or adjacent property or streets other than by means of an underground pipe drain which is discharged to an approved legal point of discharge to the satisfaction of the responsible authority.
19	An on-site stormwater detention drainage system must be installed on the land to the satisfaction of the responsible authority.
Before the development starts a Drainage Layout Plan, including computations and manufacturer’s specifications, to the satisfaction of the responsible authority must be submitted to and approved by the responsible authority. The Drainage Layout Plan must be prepared by a Civil Engineer with suitable qualifications to the satisfaction of the responsible authority and must depict an on-site stormwater detention drainage system to be installed on the land.
When approved, the Drainage Layout Plan will form part of this permit.
The on-site stormwater detention drainage system must be installed and the provisions, recommendations and requirements of the endorsed Drainage Layout Plan must otherwise be implemented and complied with to the satisfaction of the responsible authority.
20	Before the development starts, a Drainage Layout Plan, to the satisfaction of the responsible authority, must be submitted to and approved by, the responsible authority.  The Drainage Layout Plan must be prepared by a Civil Engineer with suitable qualifications to the satisfaction of the responsible authority and must include computations and location of stormwater outlets and legal points of discharge.
When approved, the Drainage Layout Plan will form part of this permit.
The provisions, recommendations and requirements of the approved Drainage Layout Plan must be implemented and complied with to the satisfaction of the responsible authority.
21	The land must be drained to the satisfaction of the responsible authority.
Transport for Victoria Conditions
22	The permit holder must take all reasonable steps to ensure disruption to tram operation along Racecourse Road is kept to a minimum during the construction of the development. Foreseen disruptions to tram operations during construction and mitigation measures must be communicated to Yarra Trams and Public Transport Victoria eight (8) weeks prior. The permit holder must ensure that all track, tram and overhead infrastructure is not damaged. Any damage to public transport infrastructure must be rectified to the satisfaction of Public Transport Victoria at the full cost of the permit holder.
End Transport for Victoria Conditions
23	Except with the prior written consent of the responsible authority, the arcade area must remain open to the public as a thoroughfare seven days per week between the following minimum hours:
(a)	Monday to Friday: 8.00am to 8.00pm; 
(b)	Saturday: 8.00am to 6.00pm; and 
(c)	Sunday: 9.00am to 5.00pm.
24	Goods must not be stored or left exposed outside the building so as to be visible from any public road or thoroughfare, to the satisfaction of the responsible authority.
25	Except with the prior written consent of the responsible authority, equipment, services or other building features (other than those shown on the endorsed plan) must not be erected above the roof level of the building.
26	Plant and equipment on the roof of the building must be screened in a manner to complement the appearance of the building and be to the satisfaction of the responsible authority.
27	Before the residential hotel use starts, an Operations Management Plan, to the satisfaction of the responsible authority must be submitted to, and approved in writing by, the responsible authority.  The Operations Management Plan must be prepared by a person with suitable qualifications to the satisfaction of the responsible authority, must detail how the residential hotel will operate to ensure any impacts on the surrounding area, car parking, car park access, and traffic will be managed, and must contain, but is not limited to, the following requirements:
(a)	with the exception of parking for staff, on-site car parking spaces are explicitly allocated to an individual room reservation and cannot be used except by a guest who has been allocated an on-site parking space with their room reservation;
(b)	no more than one on-site car parking space may be allocated to each individual room reservation;
(c)	the number of on-site car parking spaces allocated simultaneously cannot exceed the total number of on-site car parking spaces available for guests at that time;
(d)	prospective guests must be explicitly informed, immediately prior to making a reservation in writing (in the case of written or electronic reservation) and verbally (in the case of a reservation in person or by phone), that:
i	only one on-site car parking space is available to the room, and only if the car park is specifically requested and allocated to the guest with their room reservation;
ii	guests who have reserved a room without allocated parking are not permitted to bring vehicles into the right-of-way or the on-site car park; and
iii	guests cannot expect to be able to park a vehicle in the vicinity of the hotel, due to local parking restrictions
(e)	all reservation documents issued to guests and all printed and electronic material containing booking information must include the matters set out in (d) above, set out with reasonable prominence and not only within a general list of terms and conditions;
(f)	all reservation documents issued to guests must clearly specify within the principal booking information (and not only within a general list of terms and conditions) either that the reservation does include one on-site car parking space, or that it does not include any on-site parking;
(g)	if the on-site car parking area is secured, then guests who do not have an allocated car park are not to be provided with the means to access it (eg. by access pin or the coding of an electronic access card);
(h)	the keeping of records (and the identification of systems and persons responsible for keeping records) to show when and to how many reservations on-site parking has been allocated, and a record of all identified instances of non-compliance with the Operations Management Plan; with all such records to be made available to the responsible authority on request;
(i)	specific staffing training procedures which must be implemented, effective to ensure that all relevant staff comply with the Operations Management Plan.
The residential hotel use must operate in accordance with the approved Operations Management Plan to the satisfaction of the responsible authority.
28	The development must be provided with external lighting capable of illuminating access to the basement, loading bay, car parking spaces, and the pedestrian entrances/walkways.  The provision of lighting must include the installation of lights in the underside of the Level 1 overhang adjacent to the right-of-way.  All lighting must be located, directed and shielded and of limited intensity so that no nuisance or loss of amenity is caused to any person within or beyond the land.
29	Noise levels emanating from service equipment on the land must not exceed the permissible noise levels determined in accordance with State Environment Protection Policy (Control of Noise from Commerce, Industry and Trade), No. N-1 (SEPP N-1).
30	All security alarms or similar devices installed on the land must not emit any noise which is audible beyond the boundary of the land and must be designed in accordance with the relevant Australian Standard and must be connected to a security monitoring service.
31	The amenity of the area must not be detrimentally affected by the use of the land, through:
(a)	transportation 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; or
(e)	in any other way
to the satisfaction of the responsible authority.
32	Before the development starts, the Sustainability Management Plan and associated BESS Report prepared by ‘Sustainable Development Consultants’ dated 19 February 2018 must be amended in accordance with the modifications required by Condition No. 1 of this permit.  The amended Sustainability Management Plan must be submitted to the responsible authority for approval.  The Sustainability Management Plan and BESS Report must achieve all minimum requirements, meet best practice standards and be to the satisfaction of the responsible authority.  Once approved the Sustainability Management Plan, inclusive of BESS Report, must be implemented to the satisfaction of the responsible authority.
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.  The Waste Management Plan must be generally in accordance with the Waste Management Plan prepared by Sustainable Development Consultants, dated February 2018 but be amended in accordance with the modifications required by Condition No. 1 of this permit.
When approved, the Waste Management Plan will be endorsed and will form part of this permit.
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 wastes must be disposed of to the satisfaction of the responsible authority.  Liquid waste or polluted waters must not be discharged into a sewer or storm water drainage system.
35	Before the development starts a landscape plan to the satisfaction of the responsible authority must be submitted to, and approved by, the responsible authority. The landscape plan must be prepared by a person or firm with suitable qualifications to the satisfaction of the responsible authority, drawn to scale with dimensions and an electronic copy must be provided.  The landscape plan must be generally in accordance with the plans submitted with the application but modified to show:
(a)	any changes as required by Condition 1 of this permit;
(b)	a planting schedule of all proposed vegetation;
(c)	the use of drought and shade tolerant species, where required;
(d)	features such as paths, paving and accessways; and
(e)	an appropriate irrigation system.
When approved, the landscape plan will be endorsed and will form part of this permit.
Landscaping in accordance with the endorsed landscape plan and schedule must be completed before the development is occupied.
36	The existing street tree to the south-west of the subject site along Racecourse Road must not be removed or damaged as a result of the permitted development, except with the prior written consent of the responsible authority.
37	Subject to the consent of the relevant authority, before the development is occupied, the owner must provide the following to the satisfaction of the relevant authority:
(a)	a ‘Keep Clear’ marking in Pin Oak Crescent at the intersection with the right-of-way;
(b)	the provision of a ‘stop line’ marking in the right-of-way, proximate to the intersection with the footpath in Pin Oak Crescent; and
(c)	the provision of convex mirrors at the intersection of Pin Oak Crescent and the right-of-way to facilitate visibility of pedestrians and vehicles.
38	Before the development starts, (this requirement does not apply to bore holes and excavation associated with an environmental site assessment), an environmental site assessment of the land by a suitably qualified environmental professional must be undertaken which provides the following information:
•	the nature of the previous and existing land use/activities on the land;
•	an assessment of the potential level and nature of contamination (if any) on the land;
•	advice on whether the environmental condition of the land is suitable for the proposed use/s and whether an environmental audit of all or part of the land is recommended having regard to the Potentially Contaminated Land General Practice Note June 2005, DSE.
If the environmental site assessment recommends an environmental audit of all or part of the land then, before the development starts, either:
•	a Certificate of Environmental Audit issued for the relevant land in accordance with Part 1XD of the Environment Protection Act 1970; or
•	a Statement of Environmental Audit issued for the relevant land in accordance with 1XD of the Environment Protection Act 1970 stating that the environmental conditions of the relevant land are suitable for the proposed use/s (with or without conditions on the use/s of the site)
must be provided to the responsible authority.
If a Statement of Environmental Audit is provided rather than a Certificate of Environmental Audit and the Statement of Environmental Audit indicates that the environmental conditions of the relevant land are suitable for the proposed use/s subject to conditions, the owner of the land must enter into an agreement with the responsible authority under section 173 of the Planning and Environment Act 1987 before the construction of any building on the relevant land providing for the:
•	implementation and on-going compliance with all conditions in the Statement of Environmental Audit; and
•	the payment of the responsible authority’s legal costs and expenses of drafting/reviewing and registering the agreement by the owner of the relevant land.
39	This permit will expire if one of the following circumstances applies:
(a)	The development is not started within two (2) years of the issue date of this permit.
(b)	The development is not completed, or the use does not start, within four (4) years of the issue date of this permit.
In accordance with section 69 of the Planning and Environment Act 1987, an application may be submitted to the responsible authority for an extension of the periods referred to in this condition.
– End of conditions –