VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment DIVISION
planning and environment LIST	vcat reference No. P1092/2020
Permit Application no. PLN19/0928	
CATCHWORDS	
Section 79 Planning and Environment Act 1987, Yarra Planning Scheme, Commercial 1 Zone, Heritage Overlay – Schedule 334, HO334, mixed use building, building height, streetscape context, internal amenity, individually significant heritage building.	

APPLICANT	Pace Development Group Pty Ltd	
responsible authority	Yarra City Council	
Referral Authority	Department of Transport 	
RESPONDENTs	May Thandi, Martin Brennan - Fitzroy Residents Association, Michael Soltys and Sebastian D’Angelo	
SUBJECT LAND	223 – 229 Johnston Street and 369 Gore Street, Fitzroy	
HEARING TYPE	Hearing 	
DATE OF HEARING	1, 2, 3, 4, 5 and 12 February 2021	
DATE OF ORDER	9 March 2021	
CITATION	Pace Development Group Pty Ltd v Yarra CC [2021] VCAT 164	

Order
Amend permit application 
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:	SJB Architects	
Drawing numbers	Dated	
•	SD01_01, SD01_02, SD01_03, SD02_01 SD02_02, SD02_03, SD02_04, SD02_05, SD02_06, SD02_07, SD02_08, SD02_09, SD02_10, SD02_11, SD02_12, SD02_13, SD02_14, SD02_15, SD02_16, SD05_01, SD05_02, SD05_03, SD05_04, SD06_01, SD06_02, SD06_03, SD28_01 SD30_01, SD30_02, SD30_03, SD30_04, SD30_05, SD30_06, SD50_10 and SD50_11; all revision 14	•	7 December 2020	
•	SD14_01, SD14_02, SD14_03, SD14_04, SD14_05, SD14_06, SD14_07, SD14_08, SD14_09, SD14_10, SD14_11, SD14_12, SD14_14, SD14_15, SD14_16, SD14_17, SD14_18, SD14_19, SD14_20, SD14_21, SD14_22, SD14_23, SD14-24 and SD14_25; all revision 12 	•	30 October 2020	
•	SD14_13and SD14_26; both revision 13.	•	23 November 2020	

No permit granted
2	In application P1092/2020 the decision of the responsible authority is affirmed.
3	In planning permit application PLN19/0928 no permit is granted.

Alison Glynn
Presiding Member		Gregary Chase
Member	

Appearances
For Pace Development Group Pty Ltd 	Mr Peter O’Farrell, barrister on brief from Mr Tyrone Rath, solicitor of Minter Ellison.  He called the following witnesses:
•	Mr Mark Sheppard, urban designer.
•	Mr Bryce Raworth, heritage consultant.
•	Mr Lindsay Richardson, environmental engineer and daylight consultant.
•	Mr Stuart McGurn, town planner.
Photomontages prepared by Mr Christopher Goss, architect were also circulated as written evidence.	
For Yarra City Council	Ms Maria Marshall, solicitor.  She called the following witnesses:
•	Mr Craig Czarny, urban designer.
•	Ms Anita Brady, heritage consultant.	
For Department of Transport 	No appearance	
For May Thandi	No appearance	
For Martin Brennan-Fitzroy Residents Association.	Mr Martin Brennan	
For Michael Soltys	Mr Michael Soltys, in person (except on day 2)	
For Sebastian D’Angelo	No appearance	

Information
Description of proposal	Construction of an eleven storey mixed use building including partial demolition of heritage building.  The proposal includes use of dwellings at ground floor as well as a food and drink premises and a restricted retail premises.  A reduction in car parking requirements and alteration and access to a road zone category 1 is also sought.	
Nature of proceeding	Application under section 79 of the Planning and Environment Act 1987 – to review the failure to grant a permit within the prescribed time.	
Planning scheme	Yarra Planning Scheme	
Zone and overlays	Commercial 1 Zone (C1Z)
Heritage Overlay – Schedule 334 (HO334)
Design and Development Overlay – Schedule 10 (DDO10)
Abuts Road Zone Category 1 (RDZ1) – Johnston Street.	
Permit requirements	Buildings and works in C1Z.
Buildings and works, including demolition in HO334.
Reduction in car parking provisions at clause 52.06.
Alteration of access to RDZ1 in accordance with clause 52.29.	
Relevant scheme policies and provisions	Clauses 11, 13, 15.01, 16, 18, 21.04, 21.05, 21.07, 21.07, 21.08, 22.02, 22.05, 22.07, 22.16, 22.17, 34.01, 43.01, 43.02, 52.06, 52.29, 52.34, 58, 65 and 71.02-3.	
Land description	The site comprises seven titles with a combined area of 2,437sqm.  It has a 37.43m frontage to the north side of Johnston Street and a 74.15m frontage to the west side of Gore Street.  It also has a 27.79m frontage to the south side of Argyle Street.  
The site is occupied with one and two storey former commercial buildings, some of which are identified as having heritage significance.	
Tribunal inspection	We inspected the site together, unaccompanied, on 4 February 2021.     	

Reasons
What is this proceeding about?
1	In July 2020, Pace Developments Pty Ltd (the applicant) applied to the Tribunal to review a deemed refusal of the Yarra City Council (the council) to grant a planning permit to partly demolish a heritage building and construct a new eleven storey building at 223- 229 Johnston Street and 369 Gore Street, Fitzroy.  In October 2020, the council advised parties and the Tribunal that, had it made a decision, it would have refused to grant a planning permit principally because it considers the building does not appropriately address its heritage context, is too large and bulky for its setting, and has elements of internal amenity that are unacceptable.
2	A number of nearby residents support the council’s view and also question the car parking and traffic arrangements for the proposal.
3	In December 2020, the applicant circulated amended plans that it sought to rely on at the hearing.  We substituted these as the application plans at the hearing.  The council and objectors maintain that the proposal, as amended in these plans, is unacceptable.
4	We must decide if the proposal, as before the Tribunal, is acceptable based on the relevant provisions of the Yarra Planning Scheme and considerations under the Planning and Environment Act 1987.  Having considered the submissions and evidence provided by the parties against the relevant provisions of the planning scheme we have decided it is not.  We therefore conclude no planning permit be granted for the proposal.  This is primarily because we are not satisfied the proposal provides a built form response that is sufficiently responsive to its physical and planning scheme setting.  Our reasons follow below in context of a summary of the key issues and context of the proposal.
What are the key issues?
5	From submissions and evidence presented we identify the following key questions we need to determine:
a	Is the extent of demolition of heritage fabric acceptable?
b	Is the new built form, scale and design of building appropriate to its location?
c	Will the proposal lead to unreasonable off site amenity impacts?
d	Does the proposal provide acceptable internal amenity for future occupants?
6	We respond to these questions after firstly setting out the context of our decision making.
Context
What is proposed?
7	The proposal, as set out in the substituted plans, is to demolish the existing building at 223-229 Johnston Street and partially demolish the building at 369 Gore Street, and then construct a new 11 storey building.  The new building includes a roof terrace and three basement levels. The building will be used for dwellings, with restricted retail premises and food and drink premises on the ground floor.
What is its physical setting?
8	The site is known as 223 – 229 Johnston Street and 369 Gore Street, Fitzroy being the street address recorded in the council and VicPlan databases.  
9	The site comprises a total of seven lots that together have an area of 2,437 sqm.  The site has a 37.4 metre frontage to the north side of Johnston Street and a 74.2 metre frontage to the west side of Gore Street.  It then has a 27.8 metre frontage to the south side of Argyle Street.  It is occupied by a series of warehouses and retail outlets to Johnston Street and an empty retail / warehouse space to Argyle Street.  

Figure 1 - Nearmap image of the site and surrounds as extracted from the council submission.
10	A number of older, one and two storey buildings exist on the site.  Heritage evidence of the council and the applicant agree that the only building of individual significance is the former Argyle Shirt Factory, later part of the MacRobertson confectionary complex, at the corner of Argyle and Gore Street.  Early 20th century additions to the south of this building, in Gore Street contribute to the heritage significance of the area.
11	Johnston Street is a Category 1 Road Zone and has a range of building types to its north and south.  This includes some small, traditional terrace shops to the direct south of the site, along with a number of existing and former industrial buildings on the north side.
12	Directly east, across Gore Street, is a recently constructed 10 storey mixed use building, referred to as the ‘Lyric’ building.  It is on an elongated site, running east-west, with a four storey street wall to Johnston Street, an eight storey high corner ‘accent’, and a five storey street wall including a ground floor heritage building fronting Gore Street.  This Lyric building takes up approximately half the distance between Johnston Street and Argyle Street.  
13	North of the Lyric building, north-east of the review site at the south-east corner of Gore and Argyle Street, is a renovated two storey heritage listed commercial building and smaller apartments directly to the north of Argyle Street.  At the north-west corner of Argyle and Gore Street, directly north of the site, is an Australia Post business centre.  This is a generally single storey commercial building and car park.
14	West of the review site at 211 Johnston Street is a three storey commercial building.  Behind this at 192 Argyle Street is a modern three storey concrete tilt slab residential building, built to its east boundary, on the west boundary of a lane forming part of the review site.
What is the current statutory planning setting?
15	We must consider the proposal before us based on the current provisions of the planning scheme.  Relevantly this includes that the site in a Commercial 1 Zone (CIZ), has the Heritage Overlay - Schedule 334 (HO334) applying to all of the land and surrounds, as well as Design and Development Overlay - Schedule 10 (DDO10) applying to the land and some adjoining land.  
16	The purpose of the CIZ includes creating vibrant mixed-use commercial centres for retail, office, business, entertainment and community uses, and providing residential uses at densities complementary to the role and scale of the commercial centre.  The site is within the Johnston Street Neighbourhood Activity Centre and close to the Smith Street Major Activity Centre.  It has access to a range of services, including public transport.  There is no dispute that this makes the site appropriate for redevelopment for a more intensive mixed use development.
17	HO334 encompasses a broad area of South Fitzroy.  As set out in Mr Raworth’s heritage evidence, the site contains a complex of commercial and industrial buildings dating from varying periods. The commercial showroom/office at 223-229 Johnston Street is mostly modern and graded not contributory.  It includes a single storey painted brick factory/warehouse and a highly altered double-storey rendered brick shop at the corner of Gore Street. 
18	369 Gore Street includes three buildings.  At the corner of Gore and Argyle Streets is a single-storey brick former Argyle Shirt Factory dating from the 1890s graded individually significant.  This building was also later used as the ‘lifesavers’ factory as part of the MacRobertson complex in the early 20th century.  A single-storey modern commercial building facing Argyle Street is graded not contributory.  Later additions to the former shirt factory building, facing Gore Street, south of the original building, are agreed between the council and the applicant to have limited heritage interest.
19	A statement of significance for HO334, is set out in the City of Yarra Review of Heritage Overlay Areas 2007.  Of relevance this sets out that that the area is significant:
•	As the earliest urban area outside the Melbourne City grid to be settled in the Melbourne municipality, with several buildings from the mid nineteenth century surviving as testimony to its early establishment.
•	For the unusually high number of early Victorian-era and some Regency period buildings, being generally simply detailed and a clear reflection of the early date of Fitzroy’s settlement.
•	As a substantially intact collection of predominantly mid to late nineteenth and early twentieth century building stock, interspersed with well-preserved inter-war residential, commercial, retail and industrial buildings that contribute to the historical character of the area.
•	For the relatively large number of individually significant buildings, being predominantly solid masonry rather than clad with timber, largely as a result of the Melbourne Building Act, 1849.
•	For the ornate and exuberant detail of many late nineteenth and early twentieth century buildings in the suburb, reflecting the affluence of many of the inhabitants of this area, particularly in the late 19th century.
•	For the landmark qualities of some large factory and warehouse buildings from the late 19th and earlier 20th century, such as the MacRobertson confectionary complex which are significant features in the skyline of this predominantly low rise suburb.
20	The City of Yarra heritage database identifies the corner of Argyle and Gore Streets as individually significant within HO334.  As set out in an appendix to Mr Raworth’s evidence, the Northern Suburbs Factory Study (1992) identifies the building as of local significance as a prominent early twentieth century clothing factory of considerable architectural pretension for this category of building demonstrating the relative status of the company.  
21	The evidence of Mr Raworth and Ms Brady concurred that this building retains decorative features set out in the statement of significance.  This includes a prominent double dog-tooth corbelled cornice and frieze near the top of the parapet, elaborate cement brackets and volutes at the corners of the parapet and around raised panels in the centre of the facade and cast iron work such as ‘S’ brace plates and rainwater heads.  Both also agreed that the building would have been originally exposed, possibly polychrome, brick that was later painted white as part of the MacRobertson complex.
22	DDO10 applies to the land and to land west of the site.  The schedule to this overlay sets out a preferred future character for Johnston Street, west of Smith Street as:
•	A more consistent streetscape with the street-frontage ‘façade wall’ at the predominant two to three storey height of 20th and 19th Century buildings.
•	Vibrant street life and increased pedestrian activity due to an increasing amount of street oriented development particularly on Johnston Street.
23	Relevant design objectives set out in DDO10 are:
•	To retain the valued features which contribute to the preferred future character and heritage of the area.
•	To ensure development fits with its context and the preferred future character.
•	To develop streets with a human scale and vibrant street life.
•	To improve the pedestrian environment in Johnston Street.
•	To encourage high quality new development.
24	DDO10 then sets out a number of design principles for buildings and works.  Nominated metrics in these principles include that:
a	Street façade height to Johnston Street should not exceed three storeys or 12 metres.
b	Development above street façade should be set back and not exceed four to six storeys.  
c	Setbacks should be provided to avoid increased overshadowing of street and public space between 10am and 2pm at the equinox and;
i.	Where sites adjoin fine grained low rise residential development, provide a stepped transition in height at the sensitive interface to minimise amenity impacts.
ii.	Minimise the visual intrusion of upper levels when viewed from footpaths or public spaces.
d	In the area north of Johnston Street and east of Napier Street, new development must respect the height of the former MacRobertson complex and avoid dominating these buildings.
25	Two issues were put to us about applying DDO10.  Firstly, it was put to us that DDO10 should be given some lesser weight than other current statutory provisions because it is ‘old’.  We disagree that simply because a design and development overlay has been in the scheme for a number of years it is somehow out of date.  There is no ‘use by’ date to overlays and we must assess the proposal based on the current planning scheme, which includes DDO10.  We acknowledge the council’s submission that it is currently reviewing its strategic planning for built form in the area, as we discuss below.  We also note the comments of both Mr Sheppard and Mr Czarny that any urban design analysis must consider the DDO10 provision in context of the physical conditions of the site and surrounds.  We consider it is the physical context and the current strategic planning work being undertaken by the council that may temper any consideration of DDO10, not simply its age.
26	Secondly, the applicant, through oral submission of Mr O’Farrell, questioned if the height requirements of DDO10 should be read differently to that set out in its written submission and all of the written expert evidence.  The applicant’s written submission comments that ‘the proposal exceeds the preferred (discretionary) height of 4 to 6 storeys set by DDO10’.  At the hearing Mr O’Farrell submitted that the wording of DDO10 to refer to ‘development above street façade height should be set-back and not exceed four to six storeys’ could mean that development could be seven to nine storeys. Mr O’Farrell revised reading of the provision is that the height of development behind the street façade wall should be read as height, added to the three storey street façade height.
27	The expert urban design and planning evidence of Mr Sheppard, Mr McGurn and Mr Czarny were all based on their reading of the provisions of DDO10 seeking development to not exceed four to six storeys in total.  We are also aware of a number of other Tribunal decisions where DDO10 has been applied on the basis that 4 – 6 storeys is the discretionary height requirement.  On either reading the DDO10 height requirement is not met, and nor is the preferred height set out in clause 21.05-2, strategy 17.2.  We note that the DDO10 requirement is for development above the street setback height (3 storey) is to be set back and ‘not exceed four to six storeys’.  Ultimately, we do not need to determine if the discretionary DDO10 height requirement is for a four to six storey building or a seven to nine storey building as the proposal before us is 11 storeys and has a four to six storey street wall to Johnston Street.  On either reading the discretionary requirements are not met.  Nor does the council and objectors specifically state that only a 4 – 6 storey building should be accepted on the site.  They simply submit that the proposed building is too large.
28	The current zone and overlay provisions all have purposes to implement the Municipal Planning Strategy (MPS) and the Planning Policy Framework (PPF).  As detailed in the council’s submission, relevant policy and strategy includes:
•	Support for the provision of housing at higher densities in activity centres and other well-serviced locations is found in policies within the Planning Policy Framework at both the State and local level.
•	Urban design direction is found at clauses 15.01-1S and 15.01-2S with relevant objectives of:
o	creating urban environments that are safe, healthy, functional, and enjoyable and that contribute to a sense of place and cultural identity; and
o	achieving building design outcomes that contribute positively to the local context and enhance the public realm.
•	Related strategies refer to:
o	requiring development to respond to its context in terms of character, cultural identity, natural features, surrounding landscape and climate;
o	ensuring that the interface between the private and public realm protects and enhances personal safety;
o	ensuring that development provides landscaping that supports the amenity, attractiveness and safety of the public realm; and
o	promoting good urban design along and abutting transport corridors.
29	The MPS includes strategies for urban design at clause 21.05 with an objective to retain the municipality’s identity as a low-rise urban form with pockets of higher development.  A further objective to enhance the built form character of activity centres with strategies referring to requiring development to respect and not dominate existing built form; and requiring new development to consider the whole centre recognising that activity centres may consist of sub-precincts which may each have a different land use and built form character.  
30	The MPS is currently being reviewed through Amendment C269 that has recently been exhibited, but is yet to be further reviewed by the council and then referred to a panel hearing.  A copy of the amendment was provided to us and we note that this amendment removes strategy 21.05 and replaces it with policy reflecting the adopted Yarra Housing Strategy 2018.  The housing strategy identifies the site in one of a number of ‘high change areas’.  Such areas are identified as places that will support increased residential densities and housing diversity but also stating that ‘the provision of heritage and/or built form overlays in the Yarra Planning Scheme will determine the scale and form of residential growth in these areas’.  
31	Given the amendment is yet to be reviewed by a panel we give the amendment little weight.  We acknowledge, however, the content of the housing policy as an adopted policy of the council. 
32	Heritage policy also exists at clause 15.03 and 22.02 that we have considered in our review of the proposal.  A range of other planning scheme policies are relevant, including those that implement Plan Melbourne and the Better Apartment Design Guidelines.
Proposed Amendment C270 and the Final Draft Johnston Street Built Form Framework (JSBFF)
33	Proposed Amendment C270 to the Yarra Planning Scheme seeks to apply a new Schedule 36 of the Design and Development Overlay (DDO36) to the review site and other sites along Johnston Street.  It includes a preferred 30.4 metre building height across the review site and a 14.4 metre street wall height along Johnston Street and part of Gore Street.  The overlay also seeks to retain the heritage street wall to the individually significant Argyle Shirt Factory building with an 11.2 metre street wall to the balance of the Argyle Street frontage. 
34	We were told the Minister had not made a decision on the council’s request for the interim DDO36.  The council also advised that it has not progressed any further with strategic work or progress toward exhibition of a permanent set of new built form provisions.  
35	Proposed Amendment C270 results from a resolution of the council on 17 December 2019 to request the Minister for Planning to approve interim Design and Development Overlays for activity centres in Collingwood and Fitzroy under section 20(4) of the Planning and Environment Act 1987.  
36	In resolving to seek the interim amendment the council also resolved to ‘note the preparation of the draft Brunswick and Smith Street Built Form Review Background Analysis Report’ also resolved to ‘note the background analysis, built form frameworks and supporting heritage and transport reports’ referred to in attachments to the council report, and to ‘endorse them as a basis of seeking interim Planning Scheme provisions’.  Attachment 8 of the report is the Final Draft Johnston Street Built Form Framework July 2019 (JSBFF)
37	At the hearing there was some debate about whether the council resolution means the JSBFF is an adopted policy of the council, and therefore relevant to consider under Section 60 of the Planning and Environment Act 1987, or not.  Our reading is that if the draft framework is ‘adopted’ it is only adopted to the extent that it informs the proposed interim DDOs.  In any event it is described as a ‘final draft’ built form framework.  We question if it is an ‘adopted policy statement’ of the municipal council, relevant to section 60(1A)(g) of the Act.  In any event, we accept it is ‘a relevant matter’ we should consider in accordance with section 60(1A)(j) of the Act. 
38	Mr Czarny’s evidence is that the framework was prepared in conjunction with his office to form the basis of future structure plan work, not an end in itself.  We also note that elements of the final draft JSBFF differ from the proposed Amendment C270 provisions.
39	In assessing the proposal before us, we accept that both the final draft JSBFF and the proposed Amendment C270 provisions provide some context as to the council’s current thinking about design for future built form in the area.  However, neither has been the subject of community engagement or formal statutory exhibition.  
40	We give the proposed Amendment C270 no statutory weight given its embryonic nature.  We give some weight to the draft JSBFF as a relevant technical document that is guiding the council’s decision to seek amendment to the planning scheme, but the weight is quite limited given its draft status and lack of community consultation to date.  
41	Our consideration of issues below is therefore primarily based on the current planning scheme provisions of the Yarra Planning Scheme.  In doing so we note the current strategic thinking of the council that is illustrated in the JSBFF and proposed Amendment C270.
Is the extent of demolition acceptable?
42	The proposal includes demolition of non-contributory buildings and demolition of the roof of the former shirt factory building, that is individually significant.  The council is not opposed to the demolition, other than of the roof to the individually significant building, that it says will mean the building is diminished to a façade wall, rather than being read as a building.  The roof is not visible externally, other than being viewed through windows of the building.
43	The concerns of the council, as expressed through Ms Brady’s heritage evidence, result from the subsequent view of voids through the windows, rather than internal space, and use of the upper part of the façade wall as a parapet / balustrade to first floor terraces and gardens.  Ms Brady’s evidence is that the view through windows to open space, combined with use of terraces visible above the parapet will lead to the individual building losing its ability to be read as building.  In particular, her evidence is that while she accepts the technique of using parapets as a podium in principle, the composition in this case is not sufficiently compensated by the height of the new form and the exposure of vegetation above the parapet line.  She is also concerned the view of voids trivialises the building and leads to an undignified way to treat an individually significant building.
44	Mr Raworth is not concerned about the loss of the roof, or the use of the voids given they are limited to some sections and that the parapet hides the roof.  He also notes that the existing sawtooth form of the roof with glazed vertical panels means that views through windows of the current building are already partly to sky.  
45	Our inspection concurred that the sawtooth roof means much of the internal space is light and has sections where the street trees in Gore Street can already be seen through windows in Argyle Street.  The windows in Argyle Street are also relatively high, limiting direct view into the internal space behind the windows.  
46	Our reading of the plans is that glass is to be retained in existing windows.  It is only existing pedestrian doors to Gore Street and non-original roller doors to Argyle Street and Gore Street that will be converted to physical openings.  The second courtyard to dwelling G.03 is also only one metre deep to further windows inside.  There will be very limited landscape opportunity within this space.  The more obvious opening will be to the courtyard of dwelling G.02 where the roller door is converted to an opening and therefore a view into what is currently internal space is well exposed.
47	Given:
•	the existing exposure of sky and vegetation through the skylights of the existing roof from the footpaths of Argyle Street, 
•	the limited direct view into many of the windows due to their sill height, meaning pedestrian views are mostly angled up toward the existing ceiling and vegetation visible through the skylights,
•	a number of the windows remain to internal rooms not courtyards, and
•	glass is to be retained to existing windows,
we are satisfied, in principle that the roof could be demolished to form a podium to a new building with some voids.  
48	However, while we accept that generally the view of some openings and vegetation could be acceptable as seen through the façade, we are concerned the extent of void is too much.  Notably the void in dwelling G.02 opens up the view into what would simply become a shell when viewed from the north and north-west.  This void is too large and exposed, unreasonably diminishing the significance of the heritage building.  A reduced opening at the north-west corner and changes to the podium setting would mean more of the parapet and building could retain its sense of being a building, not simply a façade.  
49	We are less concerned about the openings in the more modern building extensions south of the former shirt factory in Gore Street as these sections of building are not identified as individually significant.  We are however, concerned that the relative height of dwellings to heritage building means that over apartment G.06 and G.07 a solid balustrade extends up directly behind the façade of the retained façade as a heritage feature and may confuse the reading of this facade to modern form above.
50	These are both issues of relative detail that could be addressed by permit condition or amended plans.  Generally, removing the roof should be to provide podium areas with terraces and their gardens well set back from the parapet edge so as to ensure that more of the individually significant Argyle Shirt Factory building can be read as an existing three dimensional building form, not simply a façade from Argyle and Gore Streets.  
51	The more significant question is whether the new building in its surrounding heritage context is appropriate.  This is both a heritage and urban design question we examine below.
Is the new building scale and design appropriate to its location?
52	There is no dispute that the site has a number of attributes that direct a more intense, larger built form on the site than exists.  This includes general design principles of State urban design policy at clause 15.01, underpinned by Plan Melbourne.  It is also a large site and forms part of an area in council’s housing policy that is identified as high change.  
53	Both broad urban design policy, and the council housing policy, however, still direct that built form outcomes need to be contextual and based on the specific character aspirations of the area.  This is the central issue of the dispute between the parties.  We see that the relevant question is whether the design, height and scale of the new built form respects both urban design and heritage considerations affecting the site.
54	This question needs to be assessed by the relevant directions of the planning scheme for built form and heritage.  As with the Tribunal in Ashlyn Enterprises Pty Ltd, we discuss the issues of heritage significance, neighbourhood character and urban design as an integrated discussion.  This is again because we consider the issues of heritage ultimately come down to a consideration of character of the area in which the site sits.  
55	The starting point to this assessment, for reasons we have already set out, is whether the proposed form, modulation and street walls of the 11 storey building sufficiently responds to its site context to meet the objectives of its C1Z, DDO10 and HO334 provisions applying to the land.  
56	The site has two main physical interfaces, one to Johnston Street and one to the Gore Street / Argyle Street hinterland.  This somewhat transitions from north to south, moving closer to the Johnston Street context both due to the existing built form context and also due to the slope up to Johnston Street from Argyle Street.  For ease of written analysis, we review the two interfaces separately below.
Johnston Street interface

Figure 2 - photomontage of proposed building as viewed from south-west of Johnston St.
57	As depicted in figure 1 above, the building as it presents to Johnston Street includes a street wall that ranges from four storeys (15 metres high) at the western (18.2 metre) half of the site to six storeys (20.8 metres high) at the eastern (19.5 metre) half of the site.  The eastern section includes a 1.65 metre wide by 2.65/2.7 metre deep inset between the more eastern street wall and a set of balconies west of the inset.  These balconies have a slight curve and project slightly forward of the eastern-end wall as depicted in figure 3 below.

Figure 3 - section of level 3 (4th floor) facing Johnston Street to the top of page

Figure 4 - section of level 5 (6th floor) facing Johnston Street to the top of page
58	The two levels above the four storey, western-end street wall to Johnston Street are set in four metres to the main façade but include large, curved balconies to each level that are set in one to two metres from the street edge as depicted in figure 4.  Above the sixth floor are three levels set in just under 8.9 metres from the boundary with balconies that have their balustrade approximately six metres from the street edge.  A tenth full floor (level 9) then sits above, set in 12.64 metres from the boundary.  A further rooftop level sits above at this setback and includes lift overrun, stairwell and some internal communal areas, thereby establishing an eleventh floor with an overall height closer to twelve levels in the northern section of the site, away from Johnston Street.  
59	Mr Sheppard’s evidence is that the Johnston Street presentation is acceptable because:
a	DDO10, being gazetted in 2011 and based on the Smith Street Structure plan that was finalised in 2008 is outdated, also noting the council is proposing new controls in draft Amendment C270.  His review goes on to refer mostly to the provisions of proposed Amendment C270 and the JSBFF.
b	The four storey façade wall to Johnston Street is within the existing range of street wall heights in the vicinity and will reinforce the emerging streetscape character.  He considers the six storey ‘accent’ to the south-east corner of the site will contribute to the varied streetscape character in a similar manner to the corner of the existing building to the east of Gore Street, referred to as the Lyric building.
c	He is satisfied the street wall and massing above is consistent with the proposed provisions of DDO36 in proposed Amendment C270 and the final draft JSBFF.  In particular his view is that the building above level 8 (ninth floor) will generally be concealed.  Therefore, his view is that the additional height above the proposed 30.4 metre / nine storey height proposed in DDO36 is acceptable as it will maintain a level of visual presence sought by the JSBFF.
60	In contrast, Mr Czarny’s urban design evidence on behalf of the council is that:
a	Within the DDO10 area there is a trend of recent developments that are six to seven storeys with the taller, Lyric building to the east sitting outside of the DDO10 provisions and closer to Smith Street (see figure 5 below extracted from his evidence).
b	The site has a narrower frontage to Johnston Street than the Lyric building site so the physical design cues are quite different between the two sites.  He also notes that the Lyric development reads largely as an eight storey built form to its Johnston Street / Gore Street corner, with the rest of the Johnston Street frontage reading as a four storey street wall with its upper levels setback.
c	The proposed upper 10th floor in the proposal before us will be more exposed than in the Lyric building and the more prominent exceedance of the DDO10 height provisions is not justified.
d	The upper form will draw attention to itself in the skyline and increase prominence through an overtly stepped form (or ‘wedding cake’).  
e	The skyline profile should be varied with a clean silhouette by removing level 9 (the 10th floor).

Figure 5 - extract of recent building approvals and construction in and out of DDO10, from Mr Czarny's written evidence.
61	The council submits a more considered approach to the southern interface of the development is required to deliver an outcome which is respectful of and more in keeping with the built form character of the review site and does not visually dominate the Johnston Street streetscape.
62	Mr Brennan’s submission on behalf of the Fitzroy Residents Association is that the building should be reduced in height by a minimum of two floors to ensure that the overall scale and form of the new development provides a suitable transition to what it describes as low scale residential areas.  It also submits this will ensure there is no unreasonable loss of amenity through visual bulk, overlooking and overshadowing.  The association supports removing mid-levels 5 and 6 as it would reduce the building height to Johnston Street in a way that retains the upper, more physically recessed levels, rather than these larger mid-levels that sit more prominently in the street.
63	We are firstly of the view that a generally four storey street wall is an acceptable outcome to Johnston Street.  While it is one storey higher than DDO10 directs, its metric height is generally consistent with the existing physical form either side of the site.  This section of Johnston Street does not strongly depict the preferred character in DDO10 of a consistent streetscape with the street-frontage ‘façade wall’ at the predominant two to three storey height of 20th and 19th Century buildings.  
64	We also note that a four storey street wall would not conflict with current planning being undertaken by the council in the JSBFF and the potential DDO36.  It would also be consistent with clause 58.04-1 for apartment buildings that seeks ‘to ensure the setbacks of the building from a boundary appropriately responds to the existing urban context or contributes to the future development of the area.’
65	We also accept the principle of Mr Sheppard’s comment that some taller ‘accent’ to the corner of Gore Street is acceptable given the corner accent on the Lyric building.  We are concerned, however, that the proposed façade to Johnston Street will read much more broadly as a six storey façade rather than a four storey façade with a corner accent.  We say this because:
a	The ‘corner’ six storey street façade takes up just over half the length of the site.  This is quite a different proportion and form than the Lyric building that has a much longer street frontage and therefore leads to its taller corner forming a clear accent against a generally four storey street wall.  The Lyric building also has a clear step in building form above its four storey street wall, created by a minimum five metre setback to any building form (including balconies), above. 
b	What is described as a four storey street wall to the western half of the review site has two levels above that have strong protruding balconies at levels five and six above.  These sit close to the street edge and extend across much of this façade width.  While Mr Sheppard’s evidence is that the western levels five and six can be distinguished by their different modulation and materials to the ‘corner’ form, we remain concerned that they will be a form still read as part of a six storey building, at or close to the site boundary.
c	While the east and west sections of the proposed street facade has a different materiality and composition the overall form above this, is a building that rises to six storeys close to the Johnston Street boundary for most of the site.  
66	What is before us we consider is a too dominant six storey presentation to Johnston Street.  We find this is not what DDO10 seeks and not what the physical context, or possible future planning for the area seeks.  DDO10 seeks only a three storey façade and current strategic planning for the site.  The draft final JSBFF seeks ‘to create a more consistent 4 storey street wall profile, with upper levels setback to ensure a clear distinction between street wall and rising forms.’  Based on the existing physical context we accept a predominantly four storey street wall could be acceptable with some taller corner-only ‘accent’ at the intersection with Gore Street. 
Upper form to Johnston Street
67	Mr Sheppard’s evidence is that the form above eight storeys will be generally concealed and therefore acceptable.  Mr Czarny’s evidence is that the different modulation of the Johnston Street/ Gore Street corner and upper forms is that it is too exposed across the width of the site, particularly when viewed in close to mid-view range.  His evidence is that this is different to the Lyric building that at close to mid-view is generally read as an eight storey building.  Our inspection of the site and surrounds concurs that the setbacks in the Lyric building mean it is generally read as an eight storey building to Johnston Street.
68	Our view is that the proposed building will more distinctly read as a 10 to 11 storey building in the Johnston Street environs.  What we find concerning about this is not the height, per say, but the width and proximity of its volume to Johnston Street.  We agree with Mr Czarny that at the south-east corner ‘in contrast with Lyric, upper form will draw attention to itself in the skyline and increase prominence through an overtly stepped form (recently referred to by PPV as ‘cakeness’).’  Mr Czarny therefore recommends removal of level 9 (the 10th Floor).  We do not seek to direct what the ultimate design should be, but agree that the exposure and stepping of form creates a somewhat massive, rather than clearly recessed form behind the street wall.
69	We find that for a corner ‘accent’ to be a clear feature, any form visible above, from the south-east should be highly recessed so as to not confuse or diminish the corner feature.  Ultimately, we anticipate this is likely to lead to a lower overall built form.  
70	For further reasons we discuss below about the Gore/Argyle Street interface below we are not sure that simply removing the top floor, as suggested by Mr Czarny is what is required.  
71	Overall a simpler, more recessive massing of upper form is needed to Johnston Street.  This needs to clearly distinguish itself from the street wall and not confuse, or visually dominate the street.
Gore / Argyle Street interface
72	The proposal as viewed from the north-east as depicted in photomontage evidence imagery in figure 6 below.  This photomontage has plane trees removed, but we note from Google Streetview photos of the site in winter that much of the existing building, and sky above is visible through branches of trees.  We therefore do not rely on the street trees to hide or soften the visual impact of the building and therefore the photomontage in figure 6 is a useful guide to a potential view of the building, regardless of season or street tree pruning/management.
73	At the hearing there was considerable debate about whether the building sufficiently transitions from its Johnston Street interface to its northern, Argyle Street interface.  The applicant argues that the council’s reliance on a need to transition is misguided given:
a	DDO10 refers to transitioning to fine grain residential areas when north of the site is an Australia Post facility in a Mixed Use Zone.
b	The proposed interim DDO36 proposes an eight storey building height on the Australia Post site to the north.
c	Both the site and the Australia Post site are identified as areas of ‘high change’ in the council’s housing policy.

Figure 6 - Photomontage of building (without street trees) viewed from north-east in Gore Street.

Figure 7 - East  (Gore Street) elevation of the proposed building
74	Gore Street slopes down from the north of the site to the south.  This is evident in the existing relative increase in wall height of the former shirt factory building as it gets closer to Argyle Street and the need for the proposed building to use ramped internal floor levels in the lower form and use of a mezzanine level in the northern end before then reaching a level floorplate above the heritage podium form.  The tallest point of the building at over 37 metres (to the top of the internal communal open space room on level 11) is approximately 20 metres, or one quarter way south of Argyle Street, along the 74 metre long Gore Street frontage. The top residential level, at approximately 34 metres high is set back 14 metres south of the Argyle Street boundary.
75	We consider there is a need for the proposal to transition itself between Johnston Street and Argyle Street when considering its physical and heritage context.  This is for reasons we set out below.
76	Firstly, transitioning across a site is consistent with broad urban design principles for addressing site context, as supported by clause 15.01 of the planning scheme, and also the more specific directions of existing DDO10, reinforced in current planning of the council in the final draft JSBFF.  
77	North-east and south-east of the Argyle / Gore Street intersection are former MacRobertson industrial buildings, listed as individually significant in heritage studies, as is the former shirt factory on the review site.  The buildings to the north-east and east have both been converted to residential use and retain their two storey brick built form to the street.  DDO10 includes specific direction that in ‘the area north of Johnston Street and east of Napier Street, new development must respect the height of the former MacRobertson complex and avoid dominating these buildings’.  We consider this leads to a transition in the way the building places itself in Johnston Street to the way it places itself at the Gore/Argyle Street intersection.
78	While the Australia Post site to the north may see future redevelopment consistent with its Mixed Use Zone, this will still need to be in context of its heritage setting and other constraints it has, including fine grain heritage residential buildings to its direct north and east.  If DDO36 proceeds it may direct development of up to eight storeys on the Australia Post site, but only if it has suitable consideration to its own heritage and residential interfaces.  We note that our reading of the current planning scheme provisions on this land is that it currently has no height limit.
79	The planning evidence of Mr McGurn, relied upon by the applicant is that the ‘proposed built form provides a stepped transition in height to the residential area to the north of Argyle Street. Specifically, the profile of the north façade steps in through the height of the building, with a two and three storey street wall to Argyle Street which aligns with the three storey apartment building immediately to the west’.  While directly north is not residential, west of the site, in Argyle Street is.   
80	Mr Sheppard’s urban design evidence is partly based on the proposal’s ability to generally meet numeric setbacks suggested in the JSBFF, as it applies to Argyle Street and Gore Street.  The JSBFF for this site and its immediate surrounds describes ‘Johnston Street North’ as:
A rare precinct on Johnson Street (north) between Young and Gore Streets (generally bound to the north by Argyle Street) has the opportunity for more substantial change as indicated by a suite of current approvals and the occurrence of remnant industrial parcels across entire urban blocks. While this area is currently affected by a Heritage Overlay, few legitimate heritage values exist. However, this particular locality does not have potential for unbridled growth – given the urban blocks and the important streetscapes as well as the principal Johnston Street spine. They also represent locations that must embody transitions to the more sensitive northern neighbours. 
81	The JSBFF goes on to recommend built form guidelines for the Johnston Street area that include ‘transition development down in scale to the northern Argyle Street edge’.
82	The proposed building includes some setbacks to Argyle and Gore Streets that provide some transition in form, but we find the response to these lower order street environs is not acceptable as the proposed height, setbacks, and massing will dominate what are a lower order, heritage focused, surrounds.
83	Viewing the east (Gore Street) elevation (see figure 7), the building is elongated south to north and has a contour fall of approximately two metres.  This elevation illustrates how the building is effectively divided into three separate sections vertically.  At the bottom is a one to two storey high retained brick heritage façade.  Above this is a mid-section, comprising concrete and brick finish in lighter colours.  The top section is a darker in tone and has greater setbacks from its street edges.  
84	From this east, Gore Street elevation, the three sections of built form can be readily distinguished.  Toward the Johnston Street end the mid-section is more pronounced and greater in height than the top section. Toward the Argyle Street end, the mid-section has been stepped down one level, and the top section is taller.
85	Mr Raworth’s heritage evidence is that the lighter tone materiality of the mid-section provides sufficient recession and contrast to the retained heritage base to ensure that relevant heritage policy and principles underlying clause 43.01 are met.  He is therefore not concerned about the overall height and mass of the upper levels as it is sufficiently separated from the retained heritage elements.  We accept this as a principle, but note the comparable example referred to by Mr Raworth and elaborated in Mr O’Farrell’s oral submissions on behalf of the applicant, are for a site in Cremorne Street Cremorne.  Our reading of this decision put to us is that the Tribunal in the Cremorne Street case had regard to the fact that its site was an individual heritage site with an absence of heritage overlays applying to nearby sites, in a broader commercially zoned area with a different strategic planning context.   The context of our site is different as it has different zoning and is in a heritage precinct within which there are a number of nearby individually listed buildings.
86	Ms Brady’s heritage evidence on behalf of the council is that the building form will create a large new building close to the lower scale MacRoberston buildings concentrated in this area of the HO334 heritage precinct.  She recommends two levels, being mid-levels 5, 6 or 7 (ideally 5 and 6) should be removed from the building.  This is due to the proposed building’s context, and its direct relationship with the associated historic corner building on the review site and to the north-east and east.
87	Her view is that while this will still result in a building of some height, it will introduce a new building to this area of Fitzroy which is not as significantly out of scale with other new developments.  She also contends that removal of the middle levels will maintain the increased setbacks to the upper levels in the northern part of the property, but at a lower level.  Her view is that the combined removed levels and increased setbacks will improve the heritage outcome for this northern part of the site.  
88	The applicant questioned Ms Brady as to whether her views had strayed into a question of urban design rather than heritage.  We agree that to some extent, her written evidence has ventured into discussing how the building will compare with other new buildings, not the heritage buildings.  Ms Brady qualified in her response to questions that she sought to review the building as a question of heritage streetscape.  
89	We accept that as a group of individually listed buildings in a precinct heritage overlay it is both the significance of the individual buildings that is important and the heritage character of the area.  It is the latter that then becomes somewhat merged into a question of urban design.  So, while we do not rely on Ms Brady as an urban design expert, we find her observations about how other newer developments have fitted into the heritage streetscape relevant as a consideration of the broader HO334 area.
90	New built form needs to sit in the street context in a way that complements rather than overwhelms, and therefore unreasonably detracts from the significance of the precinct.  This is particularly important given the identification of the MacRobertson buildings as a collection in HO334 and the need to respect the height of the former MacRobertson complex and avoid dominating these buildings, as directed by DDO10.
91	Mr Sheppard’s urban design evidence for the applicant is that a sheer upper form may overwhelm the single-level heritage base in contrast to the proposal that breaks the upper form into a lower element and a higher element with greater eastern and northern setbacks.  His view is that this ensures the scale of the upper form will not dominate the MacRobertson complex to the north-east.  Similarly, Mr McGurn’s planning evidence is that the combination of the north façade that steps down toward Argyle Street and the projecting balconies, ‘successfully breaks up the bulk of the north façade and provides an appropriate transition to the lower scale of built form to the north’.
92	Mr Czarny’s urban design evidence is that the ‘forceful nature of the proposed building in 4 steps (within 14m of the Argyle Street interface) with substantive projecting balcony forms is in my opinion unacceptable’.  
93	From our inspection of the site and surrounds we share Mr Czarny and Ms Brady’s observation that the three corners with heritage buildings at the intersection of Gore and Argyle Streets read together, and will be more so, if the building on the review site is restored to its original brick finish.  We do not agree with the applicant’s contention that in this context the review site reads separately to the other heritage buildings.  
94	In this context we concur with Mr Czarny and Ms Brady’s evidence that a greater setback and massing reduction is required to the north and east of the proposed building to moderate the exposed public profile from the Argyle and Gore Streets junction and the aspect of the building form from further afield, along corridor street views, such as Gore Street and to a lesser extent Argyle Street.  The proposal needs to reduce its massing to the north so as to ensure it acknowledges DDO10 by transitioning reasonably down to and towards the former MacRobertson complex, noting the rather static two to three storey profiles of existing remnant (heritage) form.
95	Mr Czarny’s evidence goes on to make some recommendations about setbacks based on what is directed by the JSBFF and the possible future interim DDO36 provisions.  For reasons we have already set out we do not give any weight to these provisions so do not rely on a contention that the building must be redesigned to accord with such provisions.  
96	We also do not direct that the building must meet metrics of the JSBFF given it is a final draft and we were told it has not been through any community consultation exercise.  It has simply been endorsed by the council as the basis to the proposed interim DDO36 provisions.  
97	Our concern is a broader one, based on first principles review of the elevations and diagrams provided to us, against the DDO10 and HO334 provisions.  In this we are concerned that the building will be clearly prominent in a context where DDO10 seeks respect of the heritage context to the north.  Nothing in the proposed or possible provisions varies from this principle.  We find the heritage character of the Gore Street / Argyle Street hinterland requires a form that is more respectful of the lower existing heritage buildings of the former MacRobertson factory complex.  A clearer recession to the heritage base through more significant setbacks to its upper form is needed.  
98	The mid-section of the new building form also needs a setback from its heritage base so that it can be read as a building, rather than a façade.  We therefore agree with Ms Brady’s proposition that a generally more recessed built form is needed.  One option could be to remove two of the mid-levels (e.g. levels 5 and 6 or 7) to reduce the prominence of form viewed in the heritage environs of Gore Street north.  Ultimately if and how the applicant chooses to redesign the building is for them to consider.  As set out elsewhere in our reasons there are other issues that also need to be addressed rather than simply reducing the building by two levels.
99	The extent of mass to the north is also accentuated by proposed balconies.  Both the mid and upper sections have large balconies protruding out from the setback walls that add to the form read in the public realm.  Their solid form underneath and sides add to this impression particularly to pedestrians who will view up to the underside and soffits of the balconies.  At the hearing there was some discussion about ways to moderate their impact.  This included changing the balustrade to glass or changing the form to more conventional rectilinear shapes.  
100	Conversion of the balconies to glass sides may reduce their impact but it would lead to other issues.  In any event we do not see it is just the balcony materials that is of concern.  The sculptured nature of the balconies is perhaps at odds with the simple rectilinear nature of the historic industrial forms to the north, although we note that neither heritage expert took exception to their shape.  Their scale and shape, however, adds to the overall mass of building as it extends north into the Gore Street/ Argyle Street hinterland.  The projecting balconies to upper levels, combined with the overall building setbacks overpower the prevailing street character, and fail to provide adequate transition to the north.  Heritage policy at clause 22.02-5.7.1 states that new buildings should be visually recessive and not dominate the place.  This has not occurred due to the overall height and mass of the form as it extends into the northern part of the site and is accentuated further by the dominant balconies.
Conclusion 
101	While we have split our assessment of the building form into discussion of Johnston Street and then the Gore/Argyle Street frontages it should not be assumed that the two contexts are completely separate.  It is the overall reading of the building in the round that we conclude to be too dominating for its site and needs to be reduced.  This is more pronounced in its presentation from the north where heritage buildings remain a dominating feature.
102	If a new proposal is sought for this site it should consider a need to better address:
a	Ensuring the individually significant building at the Gore Street / Argyle Street corner can still read as a building, not a façade, through setbacks to a podium and minimal voids.
b	A more modest building presentation to the north and north-east through reduced building height and increased setbacks.  This should be considered in a review of both the building form and its balconies.
c	A clearer and more prominent use of a street wall to Johnston Street, that is up to four storeys, with potential for a higher ‘accent’ form at the Gore Street corner.
d	The building behind the street wall to Johnston Street being more distinctly recessed and separate from the street wall.  This includes ensuring that any corner ‘accent’ is a clear feature, with any form above on view from the south-east is not confused or diminished by stepped building form above.
Will the proposal lead to unreasonable on or off site amenity impacts?
103	The building has only one direct residential abuttal, which is to three storey apartments to the direct west of the site at 192 Argyle Street.  There are also residential dwellings east of Gore Street, but the 20 metre width of this street means the proposed building is able to accommodate shadow and overlooking to these eastern properties.
104	Similarly, the building more or less meets the shadow requirements of DDO10 by not overshadowing the south side of Johnston Street between 10am and 2pm.  There is a very marginal non-compliance at 10am but we accept this is negligible in its impact on the usability and amenity of the southern footpath of Johnston Street.
105	The property directly to the west at 192 Argyle Street has a number of habitable room windows that sit directly on its eastern boundary with the three metre wide laneway that forms part of the review site.  To address the potential for overlooking to the dwellings at 192 Argyle Street, the proposed building adopts a mix of balcony screening to 1.7 metres, angled fins, and opaque fluted glass with 25% transparency to the habitable room windows at Level 1 and Level 2.  The exception to this is the living room to dwellings 1.03 and 2.03, which interfaces with windows that are opaque glazed, and the bedroom of dwellings 1.04 and 2.04, which is offset 1.5 metres from the nearest window.  Balconies on proposed Level 3 adopt projecting screens from the top of the balustrade to prevent downwards views. 
106	The proposal adopts what is a clause 55 (ResCode) test in this assessment noting that Clause 58.04-1 only directs that development should be sited to ‘avoid direct views into habitable room windows and private open space of new and existing dwellings. Developments should avoid relying on screening to reduce views.’  It does not establish the same numeric tests as used in clause 55.  
107	It is also worth noting that current planning principles seek to ensure equitable development of properties by ensuring each development sets itself in from boundaries where there may be future dwellings adjoining the site.  In this instance, the development at 192 Argyle Street has left itself exposed to development on the review site by placing habitable windows on its boundary to the lane.
108	The development, however, must address its existing context, which includes these habitable windows.  We accept it has done this, however, we are concerned that it is at some considerable cost to the internal amenity of some dwellings at levels 1 and 2.  
109	In addressing amenity, clause 58.04-1 of the planning scheme directs that developments ‘provide an outlook from dwellings that creates a reasonable visual connection to the external environment’.  We are particularly concerned that the sole outlook of dwellings 1.03 and 1.04 is to screening of their own balconies or windows that face to the lane and concrete wall of 192 Argyle Street to the west.  These dwellings also have less than ideal daylight due to their positioning.  Dwellings 2.03 and 2.04 are also highly screened, although they sit higher, partly over the roof line of 192 Argyle Street so their access to daylight is better.  
110	All of the lower level dwellings that face the lane will be subject to noise associated with the use of the lane as the only car, delivery and waste vehicle access to the development.  This is noting that the ground floor is proposed to be used for retail purposes that will include commercial deliveries and waste.
111	Noise can be further addressed through permit condition for acoustic attenuation but overall, we are concerned that the dwellings at level 1 and 2 with sole orientation to the lane offer poor internal amenity.  This is particularly for dwellings 1.03, 1.04, 2.03 and 2.04 that will be heavily screened.  Their poor orientation and heavy reliance on screening only adds to the sense that the proposal has sought too much from its site and adds to the weight of our concerns that the proposal is unacceptable.
112	The council also submits that screening to levels 4 to 9 should also occur due to the proximity of downward views to the windows west of the lane.  From our view of the plans there is sufficient distance and angle from these levels to avoid unreasonable overlooking and see no need for additional screening to these levels.
Car parking and traffic
113	Mr Soltys questions the additional traffic that may result from the proposal and why the commercial component of the development does not include the full on-site carparking provision.  Conversely, the Fitzroy Residents Association is concerned that all apartments are provided with at least one on-site car parking space, commenting that given the high number of households in Fitzroy that do not own a car, such provision unnecessarily increases purchase and on-going maintenance costs to new dwellings.
114	The proposal includes four on-site car spaces for staff associated with the ground floor retail uses when there is a statutory requirement for 16 spaces.  Part of the planning permit sought is therefore to reduce the on-site parking provision for the commercial use by 12 on-site spaces.  
115	The traffic report accompanying the amended plans comments that the existing uses on the land would generate a statutory requirement for 63 car spaces, with only eight provided on the site.  The existing uses already assume a waiver of some on-site car parking.  The proposed commercial component of the use relies on much less reduction in on-site parking to that of the existing and previous uses.
116	We are satisfied the reduced parking for the commercial component is acceptable given this existing scenario and also because of the alterative transport options in the area and the good walking access for some users of the commercial component of the development.
117	The proposal then has 153 car spaces for the dwellings, which is three more than needed to meet the statutory requirements of the planning scheme for the residential use.  No residential visitor parking is required or provided.  
118	Given the walkability of the area, as identified in the sustainability management plan provided with the application, and the good on-site provision for bicycle parking and motorcycle parking, it is unclear why more than necessary car parking spaces are provided to the residential use of the proposal.  Given the good access to alternative modes of transport it is likely that many of the car spaces will be not be actively or regularly used.  As we commented at the hearing, as the statutory component for residential parking is met, there is no permit trigger for us to consider if this is acceptable or not.  We do observe, however, the comments of the Fitzroy Residents Association that the over provision seems an unnecessary cost to the project, particularly given:
a	The site is in an area where a reduction in parking is often proposed and accepted, and 
b	Reduced parking availability in such locations can assist in demand management of traffic and parking in the area. 
c	The environmental sustainability management plan forming part of the proposal seeks to reduce the reliance on motor vehicles through promotion of more sustainable transport options including bicycle and share car facilities referred to in the plan.
Does the proposal provide acceptable internal amenity for future occupants?
Internal overlooking
119	The council submits that the proposal includes a number of dwellings that lack sufficient screening between different dwelling balconies.  A number of these were discussed at the hearing.  We agree that as somewhat exposed, or only semi-private spaces the balconies do not need to be screened in the same way that ground level secluded private open space may need to be screened.  There are places, however, where some additional screening is needed.  This is where balconies are very close together, or abut one another.  In these cases, we find the proposal needs to have better addressed overlooking between dwellings.  This matter could have been addressed by planning permit condition.
Daylight
120	The council acknowledges that with changes proposed by Mr Lindsay through his daylight evidence that the proposal achieves best practice daylight for dwellings.  We note that this is achieved without consideration to a future development to the west of the site at 219 Johnston Street.  This is a smaller site, but faces Johnston Street where DDO10 anticipates up to six storeys, where the existing building is only three commercial levels.  Given the current strategic planning occurring by the council, the adjoining building may redevelop to more than six storeys.  
121	A daylight assessment that models in a likely development of the adjoining site to the west is needed to properly assess the proposed small light well adjacent to the western boundary of the site.  
Balcony sizes and usability
122	The council submits that a number of the balconies are insufficient in space to meet clause 58.05-3 due to their curved nature.  This is an issue of detail that could be addressed by permit condition if needed, although in general we agree with the permit applicant that many of the numerical non-compliances are very minor, on balconies that are often quite usable and often overall quite large, just not quite with minimum dimensions due to their curved edge.
123	We also note that a number of balconies, such as for dwelling 2.18 and above, were proposed to be reconfigured to address daylight.  This would leave dwelling 2.18 and corresponding dwellings above to a layout depicted in figure 8 below. 
124	It is not clear to us how the reconfigured dwellings may be impacted by wind and solar access to consider the relevant decision guideline of clause 58.05-3 for the provision of private open space.  

Figure 8 - Sketch plan of alternative layout for dwelling 2.18 from Mr Lindsay's evidence statement

125	As identified in the sketch the rooftop pool sits over part of this space with the northern part of the building sitting approximately 8.4 metres north of the edge of the balcony (to the right, outside of the image shown in figure 8).  We anticipate that while the balconies may receive daylight, they may only receive limited direct sunlight.  There are a number of balconies that face south, although as they face toward Johnston Street, they have reasonable outlook.  The relevant reconfigured dwellings 2.18 and above, while facing north, appear to have more limited outlook or solar access.  This is not an issue that was ventilated at the hearing.  We simply note it as a matter warranting further consideration if a new proposal is considered by the council.
Wind impacts and usability of communal open space
126	It was noted at the hearing that the stairs and stage seating stairs to the level 1 communal open space are shaded and acknowledged by the applicant as having some limited amenity as sitting space due to their transitory location.  Given these stairs will receive very limited direct solar access we consider they will form more of a functional transition space, rather than a space to sit and commune.  
127	We also share the council concern that potential wind impacts to this level 1 space require further consideration.  The proposal relies on an unusual rooftop configuration with a pool that spans across the two buildings with a void between part of the pool and part of the communal space.  How this may impact on downward, or upward drafts in the west of the building are unclear.  The first floor communal open space is also connected via an open breezeway to the main eastern entry of the development in Gore Street.  We anticipate there may also be wind issues in this lower communal open space due to both downward draft from the main building and the venting of this through the breezeway.  
128	This possibly could be dealt with by permit condition, noting that, if the lower level communal space became unworkable due to wind, the rooftop space more than adequately provides sufficient communal open space.  The council, however, also submits that the wind analysis has not fully confirmed how wind impacts to the roof would be addressed.
129	We simply note that it is unclear to us how amenable the first floor space will be due to wind and solar issues and that both the roof and lower level communal space need to demonstrate that they can meet the objectives of clause 58.03-2 to ensure that communal open space is accessible, practical and attractive.
Conclusion
130	For the reasons given above, the decision of the responsible authority is affirmed.  No permit is granted.
131	If a new proposal is sought for this site it is our view that it needs to consider the urban design conclusions we set out at paragraph 102 and amenity considerations set out above.  This includes that further information is needed to clarify daylight to western dwellings, solar access to internal facing balconies, and the impact of wind on communal open space areas, as well as private balconies.

Alison Glynn
Presiding Member		Gregary Chase
Member