VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment LIST	vcat reference No. P1829/2020
Permit Application no. P/74/2020	
CATCHWORDS	
Port Phillip Planning Scheme; Schedule 26 to the Design and Development Overlay of the Port Phillip Planning Scheme; St Kilda Road North Precinct; North-West corner sub-precinct of DDO26; podium and tower form; side boundary setbacks to a tower form and provision of equitable development opportunities; consideration of equitable development opportunities provided by a tower form on a narrow site.	

APPLICANT	Frater Lacus Pty Ltd	
responsible authority	Port Phillip City Council	
RESPONDENTs	Roundbay Pty Ltd, George & Maureen Swinburne and Others, David MacGowan, Owners Corporation 405909L (Domain Hill) at 18 Albert Road South Melbourne 3025, Karen Baynes and Others, John Tabart and Others, Universal Holdings Pty Ltd	
SUBJECT LAND	9-11 Palmerston Crescent, South Melbourne	
HEARING TYPE	Major Case Hearing 	
DATE OF HEARING	17-20 May, 2021	
DATE OF ORDER	3 June 2021	
CITATION	Frater Lacus Pty Ltd v Port Phillip CC [2021] VCAT 563	

Order
1	Pursuant to clause 64 of Schedule 1 of the Victorian Civil & 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:	IN8 Architects Pty Ltd	
•	Drawing numbers:	TP000, TP0001, TP050, TP100 to TP108, TP200, TP201, TP250, TP300, TP400 to TP407, TP500	
•	Dated:	March 2021	

2	In application P1829/2020 the decision of the responsible authority is affirmed.
3	In planning permit application P/74/2020 no permit is granted.

Michael Deidun			
Member			

Appearances
For applicant	Tom Pikusa, Barrister instructed by Andrea Towson of Gadens
He called the following witnesses:
•	Tim Biles (Town Planner & Urban Designer) of Ratio Consultants
•	Charmaine Dunstan (Traffic Engineer) of Traffix Group
•	Ben Watson (visualisation) of Pointilism
In addition, at the commencement of the hearing Renato Piccani (Architect) of IN8 Architects provided an explanation of the plans of the proposed development.	
For responsible authority	Romy Davidov, Solicitor of Best Hooper Lawyers	
For Roundbay Pty Ltd	Nick Sutton & Scott Edwards, Solicitors of Planning & Property Partners
Mr Sutton called the following witness:
•	Robert Milner (Town Planner) of Kinetica	
For George & Maureen Swinburne and Others	George Swinburne appeared in person	
For David MacGowan	David MacGowan appeared in person	
For Owners Corporation 405909L (Domain Hill) at 18 Albert Road South Melbourne 3025, and Karen Baynes and Others	Karen Baynes appeared in person	
For John Tabart and Others	John Tabart appeared in person	
For Universal Holdings Pty Ltd	Nathan Li, Town Planner of X Planning & Design	

Information
Description of proposal	Construction of a 19 storey (including the mezzanine level) office building above a single basement level	
Nature of proceeding	Application under section 77 of the Planning and Environment Act 1987 – to review the refusal to grant a permit.  	
Planning scheme	Port Phillip Planning Scheme	
Zone and overlays	Commercial 1 Zone
Design and Development Overlay 26	
Permit requirements	Clause 34.01-4 to construct a building and construct or carry out works on land within the Commercial 1 Zone
Clause 43.02-2 to construct a building and construct or carry out works on land to which the Design and Development Overlay applies
Clause 52.06-3 to reduce the standard car parking requirement	
Relevant scheme policies and provisions	Clauses 11, 13, 15, 17, 18, 19, 21, 22.12, 22.13, 34.01, 43.02, 52.06, 52.34, 65 and 71.02.	
Land description	The review site is located on the eastern side of Palmerston Crescent, approximately 50 metres south of its intersection with Park Street. It is approximately 476m² in area, irregular in shape with the western frontage to Palmerston Crescent of approximately 11.5 metres, the maximum length of approximately 38.5 metres and a splayed north-eastern corner boundary. A laneway is located along the full extent of the northern boundary and a smaller narrow section of the laneway abuts part of the eastern boundary.	
Tribunal inspection	The Tribunal inspected the review site and surrounding properties on 21 May 2021	

Reasons
What is this proceeding about?
1	Frater Lacus Pty Ltd (the ‘Applicant’) seeks to review the decision of the Port Phillip City Council (the ‘Council’) to refuse to grant a permit for the proposed development of a 19 storey office building on land at 9-11 Palmerston Crescent, South Melbourne (the ‘review site’).
2	The proceeding is a repeat appeal, following the decision of the Tribunal in Frater Lacus Pty Ltd v Port Phillip CC [2018] VCAT 738 to affirm the Council’s decision to refuse to grant a permit for the construction of a 19 storey mixed use building on the review site.  The Council’s grounds are that the amended proposal now before me has not gone far enough to respond to the previous criticisms of the Tribunal, particularly in relation to the proposed tower setbacks to the north and south boundaries of the review site.  The Council also opposes the proposed podium height and treatment, the setbacks of the tower form from the front and rear of the review site, the extent of car parking proposed on site, and the absence of any loading facilities. 
3	The amended proposal is also opposed by a wide range of land owners, some of whom are nearby residents, and others that own larger sites ripe for redevelopment.  The parties that own adjacent potential development sites are focussed on the impact of their ability to develop their own sites in an equitable manner.  The nearby residents, in addition to the concerns raised by Council, addressed the traffic and pedestrian impacts on the laneway on the northern side of the review site, and a range of off-site amenity impacts, including by way of noise and lighting.
4	The issues or questions for determination are:
a.	What are the relevant principles for considering this repeat appeal?
b.	Is the proposal an appropriate built form response to its context?
c.	Will there be any unreasonable amenity impacts on nearby residential properties?
d.	Does the proposal appropriately provide for car parking and traffic movements?
5	The Tribunal must decide whether a planning permit should be granted and, if so, what conditions should be applied.  Having considered all submissions and evidence presented with regard to the applicable policies and provisions of the Port Phillip Planning Scheme, I have decided to affirm the Council’s decision, and direct that no planning permit be granted.  My reasons follow.
What are the relevant principles for considering this repeat appeal?
6	This being a repeat appeal, I need to proceed in a manner that has due regard to the findings contained in the previous Tribunal decision.  The correct approach to repeat appeals is set out in the Tribunal decision of Sprut Pty Ltd v Stonnington CC [2012] VCAT 1675, and repeated in part below:
[14]	The ‘usual principles’ that have been generally adopted are outlined in decisions such as Reichert v Banyule City Council and are sometimes referred to (and were referred to in the hearing before me) as the “Reichert principles”. Relevant factors to consider when reviewing an application that is similar to a proposal that has been the subject of previous Tribunal findings are: 
•	significant changes in the application itself; 
•	changes in the circumstances of the land and its surrounds; 
•	changes in planning policy; and/or 
•	changes in the interpretation of the facts or law relevant to the Tribunal’s consideration.
[15]	Although these principles are often used to dismiss ‘classic’ repeat appeals where the permit applicant appears to be doing little more than forum shopping or wearing down the opposition with little material change in the development or other circumstances, care must be taken not to apply these principles in an over-zealous manner. There are two main reasons for this.
[16]	First, the ‘classic’ repeat appeals should be distinguished from what has sometimes been described as ‘correcting’ repeat appeals - that is, where the Tribunal has refused an earlier application but indicated a modified form of development or changes that might be acceptable, and the repeat appeal comprises a genuine attempt to address those issues. This distinction was noted in Reichert, and is summed up in decisions such as Benc v City of Doncaster and Templestowe, where it was stated:
In the case of a different but similar application which has been prepared in accordance with the advice of the Board, equity or fairness demands that considerable weight be given to the fact that the applicant has endeavoured to accommodate suggestions as to what would be appropriate. 
[17]	A similar view has been expressed in decisions such as Carwoode Pty Ltd v Cardinia SC & Ors (No 3), and Pearl Diamond #2. This latter decision is of some interest, as the applicant contends that the proposed four-storey development now permitted on that nearby site is a relevant change that I should place great weight upon under the Reichert principles. 
[18]	Secondly, irrespective of whether the repeat appeal is in the nature of a ‘classic’ or ‘correcting’ repeat appeal, the role of the Tribunal is not to determine whether the proposal before it would have satisfied the earlier (and perhaps differently constituted) Tribunal, nor to summarily determine the matter solely by reference to the Reichert principles. This is a sometimes misunderstood notion. As Amoco itself indicated, the role of the Tribunal is to still consider the new application before it on its merits but, in doing so, to give great weight to the Tribunal’s decision on the earlier application having regard to the usual principles that have evolved for this purpose. 
7	As the proposal now before me is an amended proposal which has sought to respond to the concerns raised in the previous Tribunal decision, this is properly categorised as a correcting repeat appeal.  Given this is a repeat appeal, for a similar though amended proposal, I must give weight to the previous Tribunal decision.  This approach is supported by the decision of the Supreme Court in Zumpano v Banyule City Council [2016] VSC 420 where it remarked:
[26]	Repeat applications can come in many forms. Approval may be sought of the same use and development as was sought in a previous application. They may contain one or more correcting features, or seek approval for a development entirely different from that for which approval was sought in an earlier application.
[27]	In Rozen v Macedon Ranges Shire Council, the Court concluded:
The weight to be given to the various considerations which may be relevant on the one hand, and to particular facts bearing on those considerations on the other hand, is not fixed by the planning scheme but is essentially a matter for the decision maker. 
[28] 	This passage confirms that the weight to be given to the relevant considerations, and to the particular facts bearing on those considerations, is essentially a matter for the Council and the Tribunal.
[29] 	This applies equally in the case of repeat applications. Planning decisions in earlier applications affecting the subject or surrounding land are often relevant considerations in the assessment of a later application. They will almost certainly be relevant when the same use and development of the same land is sought in both the earlier and later applications. It is for the later decision-maker to determine what weight should be given to the earlier decision. Assessment of the significance of correcting features in the context of a proposed use and development is pre-eminently a planning and not a legal matter.
8	In determining the weight to be given to a previous decision, the decision of K & B Reichart v Banyule CC and Ors (1996/38819) sets out the following considerations, which have often been used for guidance in such decision making:
While the Tribunal is not bound by precedent, there need to be reasonable grounds for a later appeal determination to depart from a Tribunal view on a very similar proposal earlier. ... It seemed to me that the factors which might justify a departure from an earlier determination could include:
Significant changes in the application itself;
Changes in the circumstances of the land and its surrounds;
Changes in planning policy; and/or
Changes in the interpretation of the facts or law relevant to the Tribunal’s consideration.
9	In this case, none of the parties made submissions that there had been consequential changes in the circumstances of the land and its surrounds, in planning policy, or in the interpretation of the facts or law relevant to my decision making task.  For these reasons, and given the similarities between the previous and current proposals for the review site, I choose to give great weight to the previous Tribunal decision.  However, it is not my task to ascertain whether the previous Tribunal might have been satisfied with this amended proposal.  Rather, it is my task to assess the proposal that is before me afresh, while giving appropriate weight to the findings of the previous Tribunal.
10	That is the task that I now embark on.
is the proposal an appropriate built form response to its context?
11	The review site is located within the Commercial 1 Zone, and on land that is within easy walking distance of a range of services and facilities, including multiple tram routes, the future Anzac Railway Station, and extensive public open space.  As such, this is a location where the Planning Policy Framework encourages a greater level of urban consolidation. 
12	Policy at Clause 21.04-3 of the Port Phillip Planning Scheme identifies the need to encourage additional office floorspace in this location, as set out in the policy below.
St Kilda Road has traditionally provided a location for office and related commercial uses that support the capital city function, however this area is under increased pressure for housing. Albert Road in South Melbourne is also under increased pressure for housing, given its premier location adjacent to Albert Park reserve.
13	The land forms part of the St Kilda Road North Precinct, and Sub-Precinct 2 Northwest Corner, for which the following policy is created at Clause 21.06-7.  
Vision 
•	St Kilda Road North Precinct is a dynamic inner urban locality. Highly connected and beautifully integrated, it is home to a community that is inclusive and full of vitality. 
•	St Kilda Road maintains its role as a world famous boulevard and the Shrine of Remembrance maintains its prominence and landmark quality. 
•	St Kilda Road maintains its role as a premier office location supporting the Melbourne Central Activity District (CAD) and a preferred location for well designed, higher density residential development. 
•	Increased communal meeting spaces and public meeting points are provided. 
•	Through new development St Kilda Road North Precinct will:
•	Be a safe and inclusive place to live, work and visit. 
•	Retain its highly valued urban character and established identity. 
•	Continue to accommodate demand for residential apartments and commercial floor space in a sustainable and sensitive manner. 
•	Have convenient, safe and accessible sustainable modes of travel that allows residents, workers and visitors the choice to live and travel car-free. 
•	Have a high quality well-landscaped public realm that supports convenient access to nearby parks, services and sustainable transport modes. 
Local Strategies 
St Kilda Road North Precinct comprises six distinct sub-precincts. In some sub-precincts, there is a readily identifiable built form character that will be maintained and strengthened. In other sub-precincts, an evolution and change of the built form character will occur to create high quality, high amenity and sustainable neighbourhoods. 
In addition to the objectives and strategies contained in 21.03, 21.04 and 21.05, the following local strategies must be considered and – where more specific detail is provided - take precedence: 
All-Sub-Precincts 
•	Encourage the development of a vibrant inner urban mixed use area, providing for residential, commercial and community uses. 
•	Ensure that development provides high quality living spaces. 
•	Encourage future development to deliver a wider mix of housing types and sizes and includes flexible and adaptable design features, to accommodate a more diverse community including: 
•	Larger (3 bedroom or more) dwellings suited to family households and people working from home 
•	Universally accessible dwellings and accommodation suited to older people and people with limited mobility moveable walls and flexible spaces 
•	Encourage community spaces (such as meeting rooms) to be incorporated into new development. 
•	Ensure new development is scaled to respect the significance of the Shrine of Remembrance. 
•	Ensure development contributes to the landscape character of the Precinct by maintaining consistent front setbacks, where applicable. 
•	Ensure development retains and respects significant heritage buildings. 
•	Ensure new use and development contributes to an active, high quality pedestrian environment at street level and increases pedestrian connectivity
Sub-Precinct 2: Northwest Corner (Refer to DDO26-2) 
The Northwest Corner Sub-Precinct has a mixed character and role and presents considerable opportunity for development and change as a higher density residential or mixed use enclave, based around lively, pedestrian focussed streets. 
•	Ensure that use and development creates a vibrant residential and mixed use environment, through an increased scale and density of development. 
•	Reinforce the primacy of St Kilda Road by ensuring development provides a gradual visual and physical transition from the higher scale development of St Kilda Road across the sub-precinct to Kings Way. 
•	Improve the streetscape of Kings Way and ensure that podium heights create and reinforce human scale along Kings Way. 
•	Ensure that development provides for a fine grain character in the form and articulation of new buildings
•	Maintain access to sunlight along the key pedestrian streets of Bank and Park Streets. 
•	Ensure that the development in Kings Way creates a grand boulevard streetscape through high quality architectural design and a landscaped public realm interface.
14	The key guidance for my decision making task is provided by Schedule 26 to the Design and Development Overlay (DDO26).  The previous decision of Frater Lacus Pty Ltd v Port Phillip CC [2018] VCAT 738 contained the following analysis of DDO26, which I adopt as still relevant and accurate at the time of my decision making in this proceeding.
[33]	Whilst the DDO26 is not an isolated tool given the references within clauses 21.04 and 21.05, it is the primary tool for assessing the acceptability of the built form of any new development affected by it.
[34]	The Council submitted that the benefits of the DDO26 manifest themselves in amenity and public realm outcomes. We agree and this is apparent from the Precinct-wide Objectives at Clause 1.0 of DDO26.
[35]	Some of the key issues in dispute in this matter primarily relate to the tower setbacks to the side and rear boundaries, and the tower’s front setback to Palmerston Crescent.
[36]	The Precinct-wide Objectives at Clause 1.0 of DDO26 include the following in relation to these disputed aspects:
Streets for People
To ensure new development enhances the public realm and contributes to a network of pedestrian friendly streets.
To ensure development contributes to connections that achieve a fine-grained pedestrian network.
To create an active, high quality pedestrian environment at street level.
Private Amenity and Outlook
To ensure a high degree of internal amenity for building occupants, including providing for outlook and privacy, natural ventilation, sunlight and daylight and noise minimisation.
To ensure spacing between towers is sufficient to:
•	Allow for cross ventilation within the building.
•	Assist in maintaining the sense of space and ‘open sky views’ at street level.
•	Provide opportunities for buildings to have an outlook.
To ensure development does not unreasonably impact on the amenity of adjoining residential areas.
To ensure development in the Precinct does not unreasonably overshadow adjoining residential properties south/west of Kings Way.
To ensure that the design of buildings constructed ‘boundary to boundary’ minimises building bulk across the width of the site, reflects the existing fine grain subdivision pattern and promotes vertical articulation in the design.
[37]	Sub-Precinct 2 is described as follows:
Sub-Precinct 2: Northwest Corner
The Northwest Corner Sub-Precinct has a mixed character and role, and presents considerable opportunity for development and change as a higher density residential and mixed use enclave, based around lively, pedestrian focussed streets.
[38]	Objectives of Sub-Precinct 2 include:
•	To ensure that new development creates a vibrant residential and mixed use environment, through an increased scale and density of development.
•	To reinforce the primacy of the St Kilda Road boulevard by ensuring development provides a gradual visual and physical transition from the higher scale development of St Kilda Road, across the Sub-Precinct to Kings Way.
•	To ensure that development provides for a fine grain character in the form and articulation of new buildings.
•	To ensure that podium design and heights create and reinforce a ‘human scale’ to provide visual interest and activity for the pedestrian at street level along Kings Way.
•	To improve the streetscape environment of the Northwest Corner Sub-Precinct through high quality built form.
[39]	Clause 2.0 of the DDO26 has discretionary or preferred setbacks of 4.5 metres from side and rear boundaries and 9.0 metres from existing towers for development in this Sub-Precinct above the podium level.
[40]	This clause also sets out the following for all Sub-Precincts:
•	Additional side and rear setbacks and/or separation distances may be required to ensure buildings are designed and spaced to:
•	Respect the existing urban character and pattern of development.
•	Equitably distribute access to an outlook, daylight and achieve privacy from primary living areas for both existing and proposed development.
•	Achieve sky views between towers, ensure adequate sun penetration to street level and mitigate wind effects.
•	Avoid windows of primary living areas and balconies that directly facing one another.
•	Maintain the equitable development potential of adjoining lots
[41]	The DDO26 seeks new designs to create a ‘human’ scale with active frontages, and openness for sunlight and sky views. Further, activation of frontages is sought above ground level within the podium with the inclusion of habitable room windows and balcony doors.
[42]	Rooftop communal spaces are also sought to enhance the amenity for future occupants.
[43]	Clause 3.2 of the DDO26 sets out built form and setback requirements for Sub-Precinct 2. These include:
a.	Development should be generally in accordance with Map 3 of this schedule.
b.	Development with a direct frontage or abuttal to any road, excluding Kings Way, must:
i.	be built to the boundary, and
ii.	not exceed 18 metres in height within 5 metres of any street frontage.
c.	Development beyond the setbacks identified above must not exceed a height of 60 metres. A permit may not be granted to construct a building or construct or carry out works which are not in accordance with this requirement unless allowed by clause 4.0 of this schedule.
d.	Building facades should follow the alignment of the street frontage to follow the distinctive curvilinear street pattern.
e.	Development should reinforce the fine grain pattern of the Sub-Precinct.
[44]	The relevant part of Map 3 is extracted below:

[45]	These requirements set out that the review site is subject to a 60 metre mandatory height limitation, except if in accordance with clause 4.0, and that the 18 metre podium height and 5 metre setback beyond this are discretionary.
[46]	The DDO26 seeks to ensure that the fine grain pattern of development is maintained throughout the precinct and that amenity both internally and externally, is high. In terms of this amenity, the DDO26 seeks to ensure that there is adequate separation of built form throughout the precinct, as would be visible from both the public and private realm. This is to ensure that outlook from within buildings, privacy between buildings and the pedestrian environment is of high quality, maintaining views between buildings and to the sky and provide natural daylight, sunlight and cross-ventilation throughout the precinct.
15	The previous Tribunal decision also provides the following summary of the context that surrounds the review site, that remains relevant at the time of my decision making.
[19]	The review site is located on the eastern side of Palmerston Crescent approximately 50 metres south of its intersection with Park Street and which is approximately halfway between Kingsway and St Kilda Road. An unnamed, no-through laneway runs along the length of the review site’s northern boundary. This splays off to the north and south, just beyond the review site’s eastern boundary, with a small, narrow section abutting the eastern boundary of the review site. At the rear, the review site has a staggered boundary which partially abuts a small section of laneway and partially abuts a property at 24 Albert Road.
[20]	The Clarendon Street activity centre is approximately 800 metres to the west of the review site, which is nominated as a Major Activity Centre in Plan Melbourne[4] and the Melbourne CBD is located approximately 2.0 kilometres to the north-west of the review site.
[21]	A number of modes of public transport are either readily available in the surrounding area or under construction, including tram routes along St Kilda Road, Park Street and further west along Clarendon Street. The Metro Rail Tunnel Station ‘ANZAC’ is currently under construction, near the corner of St Kilda Road and Albert Road, approximately 100 metres to the east of the review site.
[22]	Uses in the general vicinity of the review site are mixed but generally comprise either apartment buildings or offices. There is also a small supermarket located on the north side of Park Street approximately halfway between Kingsway and St Kilda Road.
[23]	Built form in the surrounding area is also varied with single storey buildings which tend to be located on smaller allotments, rising to high multi-storey apartment buildings, particularly along St Kilda Road and Albert and Domain Roads.
[24]	The property on the opposite side of the laneway to the north supports a four storey office building, with vehicle access from the laneway, towards the rear of the site. The existing building has a rounded façade that wraps around to the laneway interface and is setback approximately 1.0 metre from the laneway. It then joins the rear section of the building which is constructed to the southern (laneway) boundary. This building is also setback from the frontage approximately 3.30 metres.
[25]	The adjoining property to the south at 13-21 Palmerston Crescent (the Roundbay site) currently supports a six storey building which is constructed to the common and front boundaries and is used for a multi-deck carpark. This site also has a planning permit for a 19 storey, mixed use building. The permit is apparently still valid and due to expire some time in 2019. It was approved prior to the introduction of DDO26.
[26]	Despite a number of more recent approvals for significantly greater density and built form in this area, Palmerston Street and this area within sub precinct 2 of the DDO26 has seen little development commenced or completed, where it was approved under the provisions of DDO26.
[27]	We find that the physical context of the site in terms of the proposal’s fit with the existing built form and particularly that in the immediate vicinity, is of lesser relevance than its strategic or planning context (set out below). We say this because the Scheme clearly contemplates significant change in this location, compared with what currently exists.
16	In the previous Tribunal decision it was ultimately determined to refuse to grant a permit, primarily due to the proposed setbacks on the tower form of the proposed development.  These concerns are set out in the following extract from the previous Tribunal decision.
Southern interface
[83]	The proposal is to provide built form to the southern interface with setbacks ranging from zero to 2.182 metres the entire height of the tower above podium level.
…
[86]	We find that such an outcome would not achieve the broad aspirations for this area, owing to the fact that the DDO26 seeks separation between towers for all the reasons we have set out earlier, rather than continuous built form at upper levels.
[87]	Whilst the proposal includes a boundary wall along the southern boundary, this does not necessarily dictate or compel that any other development other than that which is approved on the Roundbay site must construct a corresponding boundary wall.
[88]	Although we have proceeded with some caution in relation to reliance upon the Roundbay permit, the Applicant submitted that the setbacks of the proposed building on the review site from the approved building on the Roundbay site generally accord with the preferred separation outcomes set out in the DDO26.
[89]	With particular reference to the proposed southern boundary wall of the proposal, we find that the setbacks to the southern boundary would not result in an acceptable outcome. Although when assessing the setback of this wall from the permitted development on the Roundbay site there is general compliance with the desired 9 metre separation, the setback is in fact less than this at various points between the two proposals.
[90]	Based on our findings above that the permit on the Roundbay should be treated with some level of caution, we find that the proposal on the review site is too heavily reliant upon the Roundbay site and the permit for that site. We do not find that this is an equitable outcome that is achieved in line with the objectives of the DDO26. We find that greater setbacks to the southern boundary should be provided. It is not our role to prescribe these.
[91]	The reliance on obscure glazing to the south facing living room windows of the southern apartments is perhaps another indicator that the proposal is simply seeking too much of both the review site, but in particular, the Roundbay site. Whilst it is an admirable attribute to provide dual aspect to these apartments, some of this is lost given there will be no or limited outlook from the south facing windows, where this could otherwise be achieved if a greater setback from the southern boundary was proposed. In saying this, we do not say that to avoid the use of obscure glazing so as to provide outlook from these rooms that a 4.5 metre setback is required, but that a greater setback should be included in order to avoid the use of obscure glazing or other screening devices. This, in combination with a setback on the adjoining site that achieves the separation objectives, could achieve the outcomes of the DDO26.
[92]	In summary, we find that the proposal is borrowing too heavily from the Roundbay site in order to achieve what the Applicant describes as the strategic vision for the area on the review site.
[93]	As discussed previously, we acknowledge that this is a site where discretion can apply and the full setback as set out in DDO26 may not be appropriate. We expect that the extent of discretion could be dependent on factors such as the minimisation or elimination of the length of any wall on the boundary; the architectural treatment of such a wall so as to provide visual interest from the street and from the Roundbay site; the effective screening of windows to direct views to the east or west to limit the perception of direct views between developments on the review site and the Roundbay site.
North
[94]	The Council and Roundbay relied on the decision in McCardel in respect of the 4.5 metre desired setback as being a distance that should be equally applied across laneways (and from the centre-line of a laneway). The review site is an example of where such an application might result in an outcome that is inconsistent with other aspects of the DDO26, such as that which contemplates greater setbacks on some sites to achieve equitable development outcomes.
[95]	It is clear to us that the contemplation of greater setbacks for some sites to achieve equitable outcomes, is an approach that acknowledges that smaller sites within the DDO26 might need to have such flexibility afforded to them.
[96]	We are not persuaded that a 4.5 metre setback from the centreline of the laneway is necessary in this instance. However, we are also not persuaded that the extent of proposed boundary construction along the northern boundary is acceptable in this instance either.
[97]	The Applicant, including through the evidence of Ms Ring, relied on the relatively small size of the review site and its relatively narrow width, and the large area of the property at 1 to 7 Palmerston Crescent in part, as rationale for why the proposal is acceptable with a partially setback façade from the northern boundary. They also relied on these aspects in order to justify the review site’s role in achieving the intensification objectives for this site.
[98]	Whilst the proposed plans indicate obscure glazing to a number of bedroom windows extending throughout the proposal for its entire height, it was the evidence of Ms Ring that different methods of screening could be utilised in order to provide better outlook from these bedrooms whilst also addressing any potential future overlooking concerns between the proposal and any future building on the site to the north at 1 to 7 Palmerston Crescent. Some of these apartments include two bedrooms where both bedrooms have obscure glazing. We note that some of these bedrooms do have a second outlook with clear glazing to a balcony.
[99]	Whilst different methods of screening could provide better outlook, we find that providing greater setbacks from the northern boundary would provide an overall better outcome having regard to the objectives of the DDO26. This is particularly the case where some of the apartments that have bedrooms abutting the northern boundary, will result in all bedrooms of those apartments having some form of screening. We find that this is not acceptable, particularly considering there are design objectives within the DDO26 which seek to ensure that internal amenity is of a high degree.
East
[100]	The Applicant submitted that in proposing to build to the common boundary between the review site on the site to the east, that there is scope for development on the adjoining allotment to directly abut the proposed development.
[101]	Whilst this may be true of the podium level, we do not agree it is so of the tower level, where dwellings are proposed at the eastern interface. There is a small section of laneway that dissects the review site and the adjoining site to the east and there is no common boundary for a proportion of the site’s eastern interface.

Level 15 plan
[102]	It was also submitted by the Applicant that because the proposed development does not rely on the land to the east for outlook, future development on that adjoining site could be set back anywhere between 4.5 metres and 9 metres from the common boundary and achieve acceptable outcomes. It was also submitted that there may be merit in maintaining a break in built form along the rear portion of that site given the subdivision pattern of the allotments to North and South.
[103]	As we have set out earlier, the DDO26 has clear objectives to maintain breaks in building form and between buildings at the tower level for various reasons.
[104]	We find the proposal has not provided acceptable setbacks from the eastern boundary in order to provide the separation of towers that is envisaged in the DDO26.
[105]	We do not agree with the submissions of the Applicant that maintaining a break in built form along the rear portion of the adjoining site to the east based on the subdivision pattern of other nearby land is the basis for which a break in the built form should be provided.
[106]	We find that too much reliance has been placed on the adjoining site in order to accommodate the setbacks desired under the DDO26. We do not agree with the submissions of the Applicant that a 4.5 m setback of any proposal on the adjoining site to the east would achieve an acceptable outcome. The DDO26 has a clear vision for tower separation for various reasons. We have made findings about the front and side setbacks and the DDO26 is also concerned with rear setbacks.
[107]	Additionally, we agree with submissions by Council and the Respondents that the review site is not particularly constrained in its depth. As a result we find there is less reason to apply discretion to the setback from the east than from the north and the south where the relatively narrow width of the site is a factor.
[108]	We note that DDO26 also sets a maximum depth of building, which the Tribunal understands is with the intention of minimising the possibility of continuous building bulk, and ensuring there are significant gaps between towers to provide for light, air and outlook from within the precinct. With the effectively zero setback to the east, the proposed building closely approaches this limit.
[109]	While we agree that a reduction in the setback from the street frontage could be acceptable given the architectural treatment and the fact that the built form that is intruding is in the form of blades that form the balconies, we can find no such justification at the eastern end of the proposed tower. We find that a significant setback is required at this end in order to ensure tower spacing is achieved and to protect the access to light, air and outlook from the Roundbay site.
17	While that is an extensive quote from the previous Tribunal decision, it is important to acknowledge in order to conduct the assessment that comes next.
18	Mr Pikusa submits that there have been significant changes to the proposal in order to respond to the matters raised in the previous Tribunal decision.  He submits that these include the change of use of the proposed building on the review site to an office use, the removal of the portions of the tower that were previously proposed to be constructed to the north and south boundaries of the review site respectively, and a change in the architectural expression of the building.  Mr Pikusa submits that these changes address the amenity outcomes that were of previous concern, and that there will now be a greater separation between the proposed building on the review site, and future towers on land to the north and south respectively.  Finally, Mr Pikusa submits that the proposal now strikes a reasonable balance and achieves the outcomes sought by DDO26.
19	It is the evidence of Mr Biles that the proposed setbacks to the tower, as will be visible along Palmerston Crescent, are appropriate given the curved alignment of the road, the changes in topography along the length of the road, and the high quality architecture that has produced a calm and restrained building of a narrow profile on the review site.  He also supports the proposed podium height, having regard to the varied heights that will likely prevail in this precinct in the future.  In his opinion the extent to which the podium height will extend above the discretionary 18.0 metre height control will not be readily perceived from the nearby public realm.
20	Mr Biles opines that the proposed side and rear setbacks are appropriate, and will provide for the reasonable equitable development opportunity of adjoining sites.  In relation to the rear boundary setback, he is of the view that the proportions of the adjoining site to the rear are such that the future development of that site will likely need to set a tower further back from the boundaries of the review site, and thus achieve an appropriate separation between towers.  In relation to the proposed side boundary tower setbacks, it is the evidence of Mr Biles that the change of use to an office tower on the review site creates an opportunity for reduced tower setbacks to future forms on the two adjoining properties to the north and south respectively.  He is also of the opinion that the larger proportions of those adjoining properties creates the opportunity for the provision of larger side boundary setbacks on those properties that will prove to be equitable across the three respective sites.
21	I will proceed to assess the various elements of the proposed development for the review site under the headings that follow.
Podium element and ground floor treatment
22	A number of the parties that oppose the grant of a permit raise a concern regarding the proposed height of the podium, the treatment of the façade of the podium that faces both Palmerston Crescent and the adjacent laneway, and the design of the building at the ground floor frontage to Palmerston Crescent.
23	I find that the proposed podium is an appropriate height response to the guidance provided by DDO26, which sets a discretionary preferred height of 18.0 metres within 5 metres of a street frontage.  The proposal for the review site is a podium with a height of around 18.6 metres, with a further 1.1 metre high balustrade above the podium.  The podium will be read as having a height of 18.6 metres, with the additional balustrade having a level of transparency that will distinguish it from the levels below.  
24	I do not read the intent of DDO26 as achieving a consistent streetscape of podiums to the precise height of 18.0 metres.  Rather, what will occur is a series of buildings in the future that have a range of podium heights, that vary as each building has different floor to floor heights within their podiums, depending on the range of land uses proposed.  The podium height proposed for the review site is an appropriate response to the guidance provided by DDO26, as it will provide a podium height that will be consistent with the range of future podium heights that will occur in the precinct in the future, while being generally in accordance with the podium height nominated in DDO26.  The extent to which the proposed podium height will sit above the DDO26 nominated height, will provide a level of variation in the street wall height that is a desirable outcome, and will add an appropriate level of interest to the future Palmerston Crescent streetscape.
25	I also find that the proposed finish and detailing for the podium comprises an appropriate contemporary piece of architecture that will sit comfortably within both the existing and future streetscapes of this part of Palmerston Crescent.  The architecture for the podium levels that are sited above street level provide for a refined façade, that is appropriately detailed by projecting metal blades that provide a desirable level of visual interest and articulation.  I am not persuaded by the submissions of Ms Baynes that these metal blades, which project over the adjacent road reserves to a minimal degree, will unduly enclose either adjacent road reserve, or otherwise provide an inappropriate response to the context of the review site.  In contrast, to the laneway to the north of the review site, I find that the treatment of this laneway by the proposed development, which includes a widening of the laneway to a height of around 5.8 metres, will provide the laneway with a far more open aspect, that provides a feeling of space that currently does not exist.  As such, the development as a whole will result in an improvement to the pedestrian experience within this adjacent laneway.
26	My one concern with the treatment of the podium element of the proposed building relates to the manner in which the building is to present to Palmerston Crescent at the ground floor level.  On the plans that are before me, the ground floor presentation to Palmerston Crescent comprises a sizeable fire booster cupboard, visitor bicycle parking spaces, and a pedestrian entry to the proposed building.  I find that the proportion of this façade that is accommodated by services and bicycle parking to be inappropriate, and that a different design response that presents a more inviting façade with a higher degree of surveillance of the public realm should be encouraged.  If I were of a mind to direct the grant of a permit for the proposed development, I would have been satisfied that this issue could be addressed by way of a permit condition, with an altered ground floor treatment to Palmerston Crescent.
Tower setback to Palmerston Crescent
27	The parties that oppose the grant of a permit also raise a concern with the proposed setback of the tower above the podium from Palmerston Crescent.  Where DDO26 seeks a 5.0 metre setback, the proposed tower form has a setback of between 3.2 and 3.8 metres, with balconies stepping forward of this setback at each level.
28	While I acknowledge that the proposed tower element for the review site does not achieve the setback above podium level that is sought by DDO26, I consider that the proposal that is before me represents an appropriate response to the guidance provided by this Overlay, and the other components of the Port Phillip Planning Scheme.  I make this finding as the proposed development comprises a slender tower that presents to Palmerston Crescent in a very different way to the likely future tower forms on adjacent and other nearby sites.  A number of other sites within Palmerston Crescent have very broad frontages, and some of those sites on the opposite side of Palmerston Crescent have already been granted a permit for buildings that have a fairly broad tower façade that will present to Palmerston Crescent.  In difference, the proposed development of the review site presents a tower façade that has a width of around 9.5 metres, and which has been shaped and angled to a degree that further reduces the apparent width of the building in the Palmerston Crescent streetscape.  As a result of this narrow profile and detailing to the tower element, I find that an increased setback to 5.0 metres to the tower form is not required in order to manage the presence and scale of the tower as it presents to the Palmerston Crescent streetscape.  An increased tower setback is also not required in order for the passer-by to distinguish the podium and tower forms that are proposed for the review site.
29	DDO26 seeks to manage built forms as they present to Palmerston Crescent in order to provide for a pleasant pedestrian experience.  It is my finding, having regard to the design attributes identified above, that the proposed tower form will contribute to a pleasant pedestrian environment in Palmerston Crescent, despite not providing the 5.0 metre setback that is sought under DDO26.
Tower setback to eastern (rear) boundary
30	The extent of setback from the proposed tower form to the rear boundary of the review site, can be assessed having regard to the likely positioning of a future tower form on the adjacent site to the rear of the review site, and the desire within DDO26 for appropriate separation of tower forms.  The proposed development provides a 4.5 metre setback from part of the rear boundary of the review site, and a setback of between 3.74 and 4.5 metres from the centre of the laneway that abuts part of the rear of the review site.  As such, the proposed development mostly complies with the requirement for a 4.5 metre setback from a rear boundary or centreline of laneway, with part of the proposed building sited closer to part of the laneway along the rear boundary of the review site.
31	It is my finding that the proposed setbacks to the rear of the review site will provide for an appropriate separation from the adjacent property to the rear, and will contribute to an appropriate level of separation to a likely future tower form on the adjacent property to the rear.  I make this finding for the following reasons.  The adjacent property to the rear of the review site, being land at 24-26 Albert Road, has a depth of around 68 metres. The provisions of DDO26 seek to encourage towers that have a length of no greater than 35 metres.  Even if a future tower form on 24-26 Albert Road were to extend slightly past this preferred maximum width of the tower form, it is likely to have a 5.0 metre setback from Albert Road, and much greater setbacks from its rear boundary given the length of that site at 24-26 Albert Road.  
32	Further, the rear portion of 24-26 Albert Road is the most narrow component of that adjoining property, and is therefore likely to be the least preferred part of that adjoining property for a future tower form.  In addition, the property to the south of 24-26 Albert Road, being land at 28-32 Albert Road, has a permit to construct a tower form to its northern boundary, abutting part of the southern boundary of 24-26 Albert Road.  Given the varying lengths of these two properties, this is also likely to influence the future positioning of a tower form on 24-26 Albert Road, such that it is likely to have a larger rear boundary setback to the review site.
33	In any case, the length of the lot at 24-26 Albert Road provides for an ample opportunity for a future development on that site to respond to the minimal extent to which part of the tower at the rear of the review site, falls slightly short of the extent of setback that is encouraged from the rear boundary of the review site.
34	For these reasons I find that the proposed development of the review site provides an appropriate tower setback to the rear boundary.
Tower setback to side boundaries and equitable development
35	It is the setbacks of the proposed tower form on the review site to each of the respective side boundaries, that is the most contentious element of the proposal that is before me, and was the primary focus of the parties in this proceeding.  It is also the element that will most strongly influence whether this proposal provides for the future equitable development of the adjoining properties to the north (1-7 Palmerston Crescent) and south (13-21 Palmerston Crescent) of the review site.
36	Before I come to assess whether the proposal that is before me achieves equitable development opportunities for the review site and adjoining properties, is important first to understand what is meant by this phrase.  To this end I adopt the explanation that was referred to by a number of parties, from the Tribunal decision of Gesher Pty Ltd v Yarra CC [2015] VCAT 506, which is set out below.
[35]	Ms Thomas in her submission quite fairly summarised a range of Tribunal's decisions[2] in respect of equitable development, i.e.:
Numerous decisions of the Tribunal have considered the notion of what constitutes equitable development rights. The following principles emerge from these decisions in relation to equitable development rights:
•	Equitable does not mean equal.
•	Development should not be too dependent on borrowing from neighbouring sites for its amenity.
•	Development should not unreasonably fetter redevelopment opportunities on adjoining sites.
•	In the absence of a specific proposal for an adjoining property, development should not have to satisfy a speculative or hypothetical worst case scenario on an adjoining property.
•	The site size, proportion and context will influence how amenity can be equitably shared between adjoining sites.
37	DDO26 creates discretionary minimum side boundary setbacks of 4.5 metres for the review site and adjoining properties. It also states that these side boundary setbacks may need to be increased beyond 4.5 metres, in order to achieve certain outcomes, including to maintain the equitable development potential of adjoining lots, and to equitably distribute access to outlook, daylight, and privacy outcomes.
38	The proposed development that is before me seeks to provide varied setbacks of between 2.0 and 3.0 metres to the southern boundary of the review site, but which are mostly positioned at either 2.0 metres, or between 2.0 and 2.5 metres. To the northern boundary of the review site, the proposed development seeks to provide a setback of 2.95 metres to the centreline of the laneway, rather than the 4.5 metre setback that is sought under DDO26.  This results in the provision of a setback of around 1.5 metres of the tower form from the northern boundary of the review site.  In the case of the proposed development of the review site, these reduced side boundary setbacks are combined with a built form that extends to the full maximum mandatory building height that is allowed within this precinct.
39	The review site is one of the more narrow lots in this part of Palmerston Crescent, having a frontage width of 11.58 metres.  This compares to a width of around 24.7 metres at 1-7 Palmerston Crescent, and a width of around 31.0 metres at 13-21 Palmerston Crescent.
40	The challenge facing the review site is that it is an isolated smaller lot, surrounded by much larger potential development sites, particularly to the north and south.  As such, the review site is in a very different context to the sites at 5-7 Park Street (Cashmore v Port Phillip CC [2018] VCAT 1938) and 9-13 Park Street (McCardel v Port Phillip CC [2018] VCAT 633), which are two smaller lots that abut each other.  In those examples, it made sense for the development of those smaller lots to take a form that includes a wall to the boundary of the adjacent smaller lot, in order to provide for a reasonable development opportunity on each of the abutting smaller lots.  
41	There are also other examples of narrow lots in this precinct that abut lots of a similar width, and which have been approved to be developed with a tower form that is constructed to one side boundary.  One such example can be found at 28-32 Albert Road, which has a planning permit to allow the construction of a form to abut its northern boundary, and the lot that abuts the rear of the review site at 24-26 Albert Road.
42	In stark contrast, the review site’s main abuttals are to much larger sites both across a laneway at 1-7 Palmerston Crescent, and at 13-21 Palmerston Crescent.  Each of these adjacent sites are sized such that they can be developed with a ‘classical’ development form as described by DDO26, that is with a podium and tower form, where the tower is setback from each side and rear boundary by 4.5 metres.  
43	My reference to the ‘classical’ development form as described under DDO26 is a reference to the building envelope established and encouraged by DDO26, notwithstanding that elements of the building envelope are discretionary.  It is evident that DDO26 seeks to encourage tower forms of various heights in different precincts, but which are consistently setback and distinguished from the podium below, and which have minimum 4.5 metre side and rear boundary setbacks.  While these minimum 4.5 metre side boundary setbacks are discretionary, DDO26 also identifies that larger side boundary setbacks may also need to be provided, in order to achieve a range of outcomes.  These outcomes include to provide for the equitable development opportunity of adjoining land, and appropriate amenity impacts on future or existing tower forms.
44	As such, DDO26 is the planning tool that shapes the development potential of sites within this precinct.  As Mr Biles agreed, in response to my questions, the building envelope envisaged and encouraged by DDO26 would not provide for a tower form to be achieved on the review site.  That is because the minimum, and albeit discretionary, side boundary setbacks that are strongly encouraged by DDO26, would not allow a feasible tower form to be established on the review site, given the narrow proportions of the review site.  As such, when considering the equitable development opportunities that are presented both to the review site, and to the adjoining properties to the north and south of the review site, the appropriate starting point is that DDO26 does not realistically provide for a tower form to be established on the review site.  This is a starting point that was agreed to by Mr Biles in response to my questions.
45	Any attempt to develop a tower form on the review site can therefore apparently only be achieved with substantially reduced side boundary setbacks to both the north and south boundaries.  As such, a tower can only be achieved by imposing on those adjacent sites to the north and south to provide the bulk of the separation distances between towers that are encouraged by DDO26.  This will affect the ability for the larger adjoining properties to be developed with the ‘classical’ development form described by DDO26.  It will mean that larger setbacks need to be provided on these adjoining properties in order to establish the desired 9.0 metre separation distances between towers, and achieve appropriate amenity outcomes in terms of solar and daylight penetration, access to a reasonable outlook, and the avoidance of screening to restrict overlooking.  In short, the proposal to have a tower form on the review site with reduced side boundary setbacks, will have the potential to unreasonably affect the equitable development opportunities on these adjoining properties to the north and south of the review site, as it will not allow those sites to be developed in a manner consistent with the preferred building envelope established by DDO26.
46	Mr Biles in his evidence opines that reduced tower separations may occur between the proposed tower form on the review site, and the future tower forms on the adjoining properties to the north and south of the review site. He forms this view having regard to the proposed office use of the review site, and the reduced potential for overlooking that would arise from a proposed office tower.  I am not persuaded by this evidence, for the following reasons.  While I acknowledge that an office tower does not create overlooking issues in the same way that a residential tower does, an office tower still creates amenity impacts in terms of daylight access, overshadowing, and loss of outlook, in the same way that other towers do.  As such, for reasons of residential amenity, there are still very appropriate reasons why a minimum 9.0 metre tower separation is highly desirable, particularly where tower forms of 60 metres in height are encouraged in this precinct.
47	Further, DDO26 encourages a 9.0 metre tower separation also for reasons of urban design.  It does this in order to attempt to achieve views between towers to the sky for pedestrians, among other reasons.  Any attempt to provide a reduced tower separation, will have a marked impact on the achievement of this objective for pedestrians along Palmerston Crescent.  As such, for these reasons I consider that it is still highly desirable that a minimum 9.0 metre separation is provided for any future tower forms on the review site, and those to the north and south of the review site.  Indeed, in order to provide an appropriate outlook and daylight penetration to any future dwellings on the adjoining properties to the north and south, there is the potential that a greater separation than 9.0 metres may be required.
48	In response to my questions, is the evidence of Mr Biles that a need to provide a minimum 9.0 metre separation between the tower that is proposed for the review site, and the future tower forms on the adjoining properties to the north and south, will reduce the development potential of those properties.  In respect of the adjoining property to the south at 13-21 Palmerston Crescent, the desired tower separation distance will mean that a future tower form at 13-21 Palmerston Crescent will need to have a minimum side boundary setback of around 7.0 metres, as compared to the 4.5 metre setback encouraged under DDO26.  This equates to a significant loss of potential floor space at 13-21 Palmerston Crescent. While the land at 13-21 Palmerston Crescent has been granted an existing permit to construct a tower form, and that tower form has setbacks of between 5.7 and 8.6 metres, this is a permit that was granted before the application of DDO26 to the land.  As such, the owners of the land at 13-21 Palmerston Crescent should have the ability to seek either an amended permit, or a new planning permit, that allows the construction of a built form in accordance with the provisions of DDO26, including 4.5 metre side boundary setbacks.
49	In the event that the future development of 13-21 Palmerston Crescent adopts more generous side boundary setbacks, these more generous setbacks should be provided on the basis of the achievement of improved amenity outcomes for any future dwellings on 13-21 Palmerston Crescent.  The potential for the achievement of more generous amenity outcomes for future dwellings on 13-21 Palmerston Crescent is lost, if the proposed tower on the review site with its 2.0 metre side boundary setbacks, is permitted.  This is not an equitable outcome.
50	For these reasons, I am not persuaded that the proposed development of the review site provides for an equitable development opportunity on the adjoining property at 13-21 Palmerston Crescent.  I accept that the proposal for the review site will not negate the potential for a podium and tower form to be established on the review site.  I also accept that equitable does not mean equal, and that on one view the provision of more narrow setbacks on a more narrow site, accommodated by the provision of more generous setbacks on a larger site, might be considered equitable.  However, the proposed development goes beyond that outcome, by effectively removing currently allowable floor space from the site at 13-21 Palmerston Crescent, in order to create the opportunity to establish a feasible tower form on the review site, that the provisions of DDO26 do not presently allow.  I am not persuaded that the extent to which the proposed tower form on the review site reduces the discretionary minimum side boundary setbacks established under DDO26, and reduces the development options available to the land at 13-21 Palmerston Crescent, to be equitable.
51	To the north of the review site is land at 1-7 Palmerston Crescent.  The likely future need to provide more generous side boundary setbacks at 1-7 Palmerston Crescent, in order to account for the reduced side boundary setbacks proposed on the review site and the preferred tower separation distance under DDO26, will impact the development opportunity on that adjoining property.  Again in response to my questions, it is the evidence of Mr Biles that this will likely result in one less apartment being able to be provided on each floor of the future tower form at 1-7 Palmerston Crescent. This evidence was given on the basis of a preliminary plan that has been prepared for a potential development of 1-7 Palmerston Crescent, though Mr Biles and I both noted the incomplete nature of these preliminary plans.  However, I find that the evidence provided by Mr Biles of the likely effect of this proposal on the development opportunity presented to the land at 1-7 Palmerston Crescent to be telling.  It neatly quantifies the development impact of the proposal on the review site, on the equitable development opportunity at 1-7 Palmerston Crescent.  Despite the relative sizes of the two respective properties, I do not regard the impact of this proposal, which according to Mr Biles will result in the loss of an entire apartment to each floor of the future building at 1-7 Palmerston Crescent, to be either equitable or appropriate.
52	Returning to the principles in relation to equitable development rights as set out in the decision of Gesher Pty Ltd v Yarra CC [2015] VCAT 506 and quoted above, I find that:
a.	The proposal for the review site is too dependent on the adjoining properties in order to provide for appropriate levels of amenity that is to be achieved by a desired separation of tower forms across individual sites;
b.	The proposed development on the review site will unreasonably fetter or limit the redevelopment opportunities on adjoining sites that are created via DDO26; and,
c.	My analysis does not seek to rely on a worst case scenario on an adjacent property, but rather the development envelope that is encouraged under DDO26, which would no longer be possible on the adjoining sites to the north and south of the review site, if this proposal were to proceed.
53	For these reasons I find that the proposed development of the review site fails to provide appropriate side boundary setbacks to the tower form on the review site, and also fails to provide for the equitable development of adjoining land to the north and south of the review site.  
54	Given my finding in relation to this matter I am not persuaded that the proposed development will achieve a net community benefit.  I acknowledge that the proposal, in providing office floor space in this precinct that is intended to provide for a mix of uses, but which is increasingly becoming dominated by residential development, provides a significant benefit.  However, I do not regard that and other benefits associated with the proposal that is before me, can outweigh the significant disbenefit that is created by the inappropriate side boundary setbacks that are proposed for the review site, and their impact on the equitable development opportunities of adjoining land.
55	I fancy that the size and context of the review site and the outcomes encouraged by DDO26, will likely mean that the review site cannot be developed with any building form that extends much above podium height.  The Applicant will likely see that as a failure of the planning system to allow the review site to be developed in accordance with the strategic intent of DDO26.  In difference, I interpret DDO26 as discouraging a tower form on sites of these proportions, where construction of a tower form would significantly impact the amenity outcomes and equitable development opportunities of adjoining larger sites.  If the eventual result of my decision is that the review site cannot be developed with a building form that extends much above podium height, and if this provides for the development of tower forms on the adjoining properties to the north and south that can then enjoy an appropriately high level of amenity, then I consider that outcome to be consistent with the strategic intent of DDO26, and the other guidance for this precinct provided by the Port Phillip Planning Scheme.
56	For these reasons I will determine to refuse to grant a permit for the proposed development of the review site.  Given I have reached this finding in relation to the proposed built form on the review site, I do not need to proceed to assess the other elements of the proposal that are before me. However, I will briefly record the following findings in relation to traffic and car parking matters, given the extent to which these were debated by the parties that appeared before me.
Are there any other issues?
57	While the plans that were substituted at the commencement of the proceeding proposed the provision of 26 car parking spaces on site within a five level car stacker, it is the evidence of Ms Dunstan that such a car parking system will cause unreasonable queues within the adjacent laneway.  As such, it is her evidence that 20 car parking spaces should be provided on site, within two separate four level car stacker systems.  In her evidence, Ms Dunstan analysed the comparable queuing that would occur with such a system, and adequately demonstrated that it was the maximum car parking provision that could appropriately occur on site, for an office development.  As I am persuaded by the evidence of Ms Dunstan, I will proceed to conduct the following analysis on the basis of the provision of 20 car parking spaces on site in the manner set out in Ms Dunstan’s evidence.
58	The parties that oppose the grant of a planning permit argue that the proposed development fails to provide a sufficient amount of car parking spaces on site, and fails to provide an appropriate facility for loading and unloading.  The Respondents argue that the proposal also fails to provide for appropriate traffic conditions within the laneway, and fails to provide for an appropriately positioned disabled car parking space.  
59	I am not persuaded by these submissions, and instead find that if I were in a position to grant a planning permit, I would have been satisfied in relation to the car parking and traffic implications of the proposed development.  In support of this finding I provide the following brief reasons.
a.	The provision of 20 car parking spaces in a stacker car park at a rate of 0.46 car parking spaces per 100 m² of office floorspace is appropriate in this location due to the extremely high level of access to a range of public transport options.  The current range of available public transport options include tram routes along Park Street and St Kilda Road, and a little further afield in Heather Street and Clarendon Street. This current range of available public transport options will soon be expanded with the current construction of Anzac Station in nearby St Kilda Road.  This extraordinary high range of available public transport options enables workers from most parts of Melbourne to access offices on the review site by public transport. Indeed, the access of land in this precinct by public transport should be strongly encouraged, as if patrons of new development in this precinct were to access this location by car, that would likely create unwelcome traffic impacts in this neighbourhood.  As such, I would encourage the rate of car parking to be provided on site to be kept reasonably low, such as that proposed, in order to encourage the use of public transport to this location.
b.	I accept the evidence of Ms Dunstan that for an office development, it is not appropriate to adopt the previous proposal to provide 44 car parking spaces in a fully automated stacker system on the review site.  That is the case, according to the evidence of Ms Dunstan, as an office development creates a higher number of vehicle trips at peak hours, when compared to the previous proposal for a primarily residential development of the land.  It is the evidence of Ms Dunstan that these high number of peak hour vehicle trips would place an unreasonable demand on the adjacent narrow laneway.  As such, there is a need to further restrict the number of car parking spaces on site, in order to provide an appropriate level of traffic accessing the site from the adjacent laneway for this proposed office building.
c.	While I accept that only long-term car parking for workers on the review site will be provided on-site, that is an appropriate outcome, for the following reasons.  Firstly, as the dimensions of the review site only provide for car parking by way of mechanical parking (stackers) or at grade car parking.  As stackers clearly provide the opportunity for a higher number of car parking spaces to be provided on-site, they are to be preferred over at grade car parking.  Secondly, as has been held by this Tribunal on numerous occasions, car parking within mechanical stackers is not suitable for use by visitors to a site.  As such, it is appropriate that no car parking be provided on-site for short-term visitors.
d.	I have not been persuaded that it is necessary for a loading facility to be provided on-site for an office building of this scale.  As such, I consider it appropriate for the loading requirements of the review site to be provided via on street loading facilities, of which there is one immediately in front of the review site.
e.	I accept the evidence of Ms Dunstan that the traffic movements associated with the proposed 20 car parking spaces on site can be accommodated in the adjacent laneway, without causing unreasonable traffic delays or impacts on pedestrians.  I form this view noting that the proposed development intends to provide a passing bay to one side of the laneway, that will also act as a waiting point for vehicles to access the car stacker system on site. When not used for vehicles waiting to access the car stackers on-site, this passing bay can be used by other drivers and pedestrians, in a manner that will add to the existing levels of safety and convenience within this laneway.  To this end I adopt the findings of the previous Tribunal at paragraph 148, where they analysed the pedestrian environment that occurs in the laneway adjacent to the review site, and found that the proposal that was before them, which was to provide access to a much higher number of car parking spaces on the review site, would achieve appropriate outcomes regarding the safety of pedestrians.
f.	I also accept the evidence of Ms Dunstan that there are alternatives to the provision of a disability access car parking space on site.  It is not the role of a decision maker under the Planning and Environment Act to determine the nature of how disability access to car parking is provided in relation to the proposed development of the review site.  Rather, that is a process that must occur under the relevant building permit process.
Conclusion
60	For the reasons given above, the decision of the responsible authority is affirmed.  No permit is granted.

Michael Deidun			
Member