VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment LIST	vcat reference No. P327/2021
Permit Application no. PLN20/0566	
CATCHWORDS	
Yarra Planning Scheme; World Heritage Listing of the Carlton Gardens and Royal Exhibition Building; Heritage Overlay 361 World Heritage Area Environs Precinct; policy at Clauses 21.05, 22.02, 22.03 and 22.14 of the Yarra Planning Scheme; Schedule 8 to the Design and Development Overlay in the Yarra Planning Scheme; World Heritage Environs Area Strategy Plan: Royal Exhibition Building and Carlton Gardens (Department of Planning and Community Development, 2009); views from Gertrude Street and Marion Lane to the drum, dome, lantern and flagpole of the Royal Exhibition Building; whether a proposed five storey building achieves a lower scale form of development which provides a contrast to the dominant scale and form of the Royal Exhibition Building. 	

APPLICANT	Besen Gertrude Pty Ltd	
responsible authority	Yarra City Council	
RESPONDENTs	A Hollo, A Wolf, Royal Historical Society of Victoria, Protectors of Public Lands Victoria Inc., M O’Brien, M Francis, National Trust of Australia (Victoria), R Opat, S Romanes, Fitzroy Residents Association Inc and others, P Coyle, Comfort Apartments Royal Gardens	
SUBJECT LAND	1-9 Gertrude Street, Fitzroy	
HEARING TYPE	Major Case Hearing 	
DATE OF HEARING	30 & 31 August, 1, 2, 3, 21 & 27 September, 18 & 20 October 2021	
DATE OF ORDER	29 November 2021	
CITATION	Besen Gertrude Pty Ltd v Yarra CC [2021] VCAT 1434	

Order
1	In application P327/2021 the decision of the responsible authority is set aside.
2	In planning permit application PLN20/0566 a permit is granted and directed to be issued for the land at 1-9 Gertrude Street, Fitzroy in accordance with the endorsed plans and the conditions set out in Appendix A.  The permit allows:
•	Use of the land for accommodation
•	Demolition of the existing buildings
•	To construct a building and construct or carry out works
•	To reduce the standard car parking requirement

Michael Deidun		Lorina Nervegna	
Presiding Member		Member	

Appearances
For applicant	Chris Townshend QC and Emily Porter, Barristers instructed by Mark Naughton and Andrew Iser, Solicitors of Planning and Property Partners
They called the following witnesses:
•	Stuart McGurn, Town Planner of Urbis
•	Mark O’Dwyer, Urban Designer and Architect of H2o Architects
•	Bryce Raworth, Conservation Consultant and Architectural Historian of Bryce Raworth Conservation & Heritage
•	Peter Lovell, Heritage Consultant of Lovell Chen
•	Steve Hunt, Traffic Engineer of Ratio Consultants
•	Jan Talacko, ESD Consultant of Ark Resources
•	Ben Watson (visualisation) of Pointilism
As none of the parties sought to cross examine Mr Talacko, he was not called to give oral evidence	
For responsible authority	Maria Marshall, Solicitor of Maddocks Lawyers
She called the following witness:
•	Bruce Trethowan, Heritage Architect of Trethowan Architecture	
For respondents	Tiphanie Acreman, Barrister instructed by Adeline Lane and Simone Jackson, Solicitors of Jackson Lane Legal, appeared on behalf of Andrew Hollo and Sally Romanes
Ms Acreman called the following witness:
•	Roger Beeston, Heritage Architect of RBA Architects + Heritage Consultants
Greg Chenhall appeared on behalf of the Fitzroy Residents Association Inc. and the six individuals who lodged a joint statement of grounds with the Fitzroy Residents Association Inc.
Fiona Bell appeared on behalf of the Protectors of Public Lands Victoria Inc.
Ian Wight appeared on behalf of the Royal Historical Society of Victoria
Felicity Watson appeared on behalf of the National Trust of Australia (Victoria)
Anthony Murphy appeared on behalf of the Comfort Apartments Royal Gardens
Anna Wolf, Margaret O’Brien, Rowan Opat and Mike Francis all appeared in person	

Information
Description of proposal	The construction of a five storey mixed use development above two basement levels	
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
Design and Development Overlay 8
Heritage Overlay 361
Development Contribution Plan Overlay 1	
Permit requirements	Clause 34.01-1 to use land within the Commercial 1 Zone for accommodation where the frontage exceeds 2 metres
Clause 34.01-4 to construct a building and construct or carry out works on land within the Commercial 2 Zone
Clause 43.01-1 to demolish a building, construct a building and construct or carry out works on land to which the Heritage Overlay applies
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, 16, 17, 18, 19, 21, 22.02, 22.03, 22.05, 22.07, 22.10, 22.12, 22.14, 22.16, 22.17, 34.01, 43.01, 43.02, 52.06, 52.34, 55, 58, 65 and 71.02.	
Land description	The land is almost square, and has a frontage to Gertrude Street of 30.14 metres, a sideage to Royal Lane of 29.95 metres, and a rear abuttal to Marion Lane of 30.2 metres.  The land has a total area of approximately 989 square metres, and is presently developed with a one and two storey commercial building.	
Tribunal inspection	The Tribunal conducted an inspection of the site and surrounding area, and a view from the viewing platform under the drum and dome of the Royal Exhibition Building accompanied by staff from Museums Victoria, on 25 October 2021.	

Reasons
Introduction
1	The western end of Gertrude Street, Fitzroy, between Brunswick Street and Nicholson Street, is a special and important heritage location.  It plays host to a number of important heritage buildings, including three that are on the Victorian Heritage Register, being the Glass Terrace at 64-78 Gertrude Street (Heritage Overlay 159), the former Cable Tram Engine House at 46-48 Nicholson Street (HO 181), and the Royal Terrace at 50-68 Nicholson Street (HO183).  The later two of these three heritage buildings are on the respective corners of Nicholson and Gertrude Streets, and frame the western end of Gertrude Street in the immediate vicinity of the review site.
2	This part of Gertrude Street also has a number of other significant heritage buildings.  These include a two storey bluestone Victorian dwelling constructed in a Regency style in 1859 at 11 Gertrude Street, immediately adjacent to which are a pair of Federation/Edwardian two storey dwellings and shops at 13 & 15 Gertrude Street.  Other significant heritage buildings occupy the northern side of Gertrude Street from 37 Gertrude Street east to Brunswick Street, and most of the southern side of Gertrude Street.  The level of significance and intactness of this streetscape is impressive, even to people like ourselves who observe heritage streetscapes on a relatively regular basis.
3	However, none of what we have mentioned so far forms the most significant heritage aspect of this part of Gertrude Street, as it also provides important viewlines and environs to the Royal Exhibition Building (REB).  The REB, along with the Carlton Gardens, is inscribed on the UNESCO World Heritage List.  It is one of only three built form sites in Australia to be so recognised, which of itself highlights its unusually high level of heritage significance.  The proximity of the review site to the REB is such that it falls within Heritage Overlay 361 World Heritage Area Environs Precinct (HO361).  Further, the review site sits within a particularly sensitive location in this precinct, being located immediately to the east of the aforementioned Royal Terrace.  As such, it is separated only by Royal Terrace from the Carlton Gardens and the REB, and is in a prime position to impact both the views from the environs towards the REB, and the view back from the REB to the surrounding environs.
4	The importance of the proximity of the review site to the REB and its inclusion within its identified environs, coupled with the more immediate heritage setting in Gertrude Street, is something worth reflecting on.  In its written submissions, the Royal Historical Society of Victoria Inc. describes this area as, “arguably the most significant heritage precinct in the city.”  Mr Francis, a local resident observes that, “This street is of great historical importance in the history of Melbourne, and to Victoria generally.”  Finally, Ms O’Brien, another local resident, describes this location in the following terms.
This location is one of City of Yarra’s and Melbourne’s landmark positions, not just by virtue of abutting the World Heritage Royal Exhibition Building and Carlton Gardens and not just because its proximity contributes to the World Heritage values, but also as one of the most high-profile entrances to Fitzroy, the first suburb of Melbourne. Nicholson Street is the most intact and representative of the grand Victorian period residential streets and in a precinct dense with exceptional individually significant Victorian Heritage Registered properties.
5	We cannot disagree with any of these descriptions.
6	Within a range of planning policies, provisions and reference documents, the views along Gertrude Street and Marion Lane, which are sited to the immediate south and north of the review site respectively, to the drum, dome, lantern and flagpole of the REB are highly valued and protected.  Indeed, it is the views from these two streets that form two of the key viewlines sought to be protected surrounding the REB in both the Melbourne and Yarra Planning Schemes.  The significance of these viewlines therefore cannot be overstated.  It is well described by again returning to Mr Francis’ written submission:
At present, if you walk along the South side of Gertrude Street, in a Westerly direction, initial glimpses of the dome and flag pole, will appear above the existing buildings before the intersection of George Street. As you progress towards Carlton gardens, the dome will increase in prominence, and become the dominating feature as you approach the Brunswick Street intersection. The REB commands attention of the pedestrian, exactly as a rising full moon would. The atmosphere generated by this view is extraordinary. It provides a dramatic backdrop to the experience of visiting Melbourne’s premier historical shopping strip.
7	The existing building on the review site is a rare example of a non-contributory building in this heritage streetscape.  In fact, while its two storey scale reflects the scale of its heritage neighbours, it is otherwise a blight on the streetscape through its 1960’s design that clearly preferences function over form.  It’s removal, and replacement with an appropriate built form, would represent a significant positive outcome. 
8	The proposal is to construct a five storey mixed use development on the review site.  In recognition of the important context, the Applicant has sought architects of international renown to design the proposed building, and also sought advice from many well known in their respective fields locally.  The result is a building that attempts to address the key issues before the Tribunal, in terms of its respect for the low scale environs around the REB, and protection of views along both Gertrude Street and Marion Lane to the drum, dome, lantern and flagpole of the REB.  While these are the key issues, we note that there are other issues before us, including other heritage issues, such as the relationship between the proposed building and the adjacent 1859 bluestone cottage at 11 Gertrude Street.
9	There is significant community opposition to the proposal, as one might anticipate in such a sensitive heritage setting.  During the hearing we heard from a range of submitters, and we appreciate the time they each took in their preparation and attendance at the hearing.  Each of their submissions have contributed in their own way to our understanding of the context, and the various views that exist as to what would be an appropriate outcome on the review site.
10	Ultimately, we are tasked with determining whether this proposed building, with its own individual design merit, and clearly understood methodology of responding to context, is an appropriate outcome in this the most sensitive of heritage places.  We do not take this task lightly.
11	Following much analysis, and for the detailed reasons which are set out in the body of this decision, we have found that the proposed building on the review site does precisely what is encouraged and sought by the Yarra Planning Scheme.  Namely, in respect of the key heritage issues, the proposed building:
a.	Has upper levels that are appropriately setback from Gertrude Street so as to retain the existing view to the drum, dome, lantern and flagpole of the REB from the southern side of Gertrude Street, west of Fitzroy Street;
b.	With a slight increase in setbacks to two levels, will appropriately retain views to the drum, dome, lantern and flagpole of the REB from Marion Lane;
c.	Is of a scale that retains the existing built form dominance of the REB in this setting, as the parapet to the top floor of the proposed building on the review site is 21.62 metres, 36.16 metres and 43.12 metres lower than the top of the drum, dome and lantern of the REB respectively.  Further, the proposed building adopts a sufficiently low scale that is commensurate with the scale of other nearby buildings in this neighbourhood, including an existing five storey building within this same part of the World Heritage Environs Area at the rear of 34 to 44 Gertrude Street; and,
d.	Responds appropriately to the immediate heritage setting, by providing a street wall height that reflects the low street wall height of the adjacent dwelling at 11 Gertrude Street, by breaking the street podium to Gertrude Street into a rhythm that reflects the nearby Victorian terraces, and by adopting a range of other design techniques that together represent an appropriate response to the heritage place. 
12	We now go about the task of setting out the reasons for these and other findings.
What is this proceeding about?
13	Besen Gertrude Pty Ltd (the ‘Applicant’) seeks to review the failure of the Yarra City Council (the ‘Council’) to grant a permit within the prescribed time, in respect of a proposed five storey mixed use development on land at 1-9 Gertrude Street, Fitzroy (the ‘review site’).  Prior to the hearing, amended plans were circulated which reduced the overall height of the building by 1.5 metres.  This reduction in height was achieved by reducing each of the respective floor to floor heights, and as such every wall of the proposed building has been reduced in height as a result of the amended plans.
14	The proposed uses comprise four shops, a food and drink premise and an art gallery on the ground floor, office floorspace on the first, second and third floors, and a three bedroom apartment on the fourth floor.  Two basement levels provide car parking, end of trip bicycle facilities, and spaces for storage, services, and a water tank.  The basement is accessed via a lift and stairwell from the ground floor lobby, and a car lift from Marion Lane on the northern side of the review site.  Above ground, the proposed development comprises two podium levels that comprise a street wall of a height of 7.3 metres, above which the second, third and fourth levels are progressively setback from Gertrude Street by 4.0 metres, 7.0 to 9.0 metres, and 10.0 metres respectively.  Much reduced setbacks, if any, are provided to the other boundaries.
15	The various parties that oppose the grant of a permit raise a range of heritage concerns which can be grouped into four key areas:
a.	The impact on the views to the drum, dome, lantern and flagpole of the REB from Gertrude Street;
b.	The impact on the views to the drum, dome, lantern and flagpole of the REB from Marion Lane;
c.	The impact of the proposed five storey building on the low scale environs that are intended to surround and provide a built form contrast to the grandeur and the prominence of the REB;
d.	The manner in which the proposal relates to the immediate heritage context, including the bluestone dwelling at 11 Gertrude Street, and Royal Terrace at 50-68 Nicholson Street.
16	It is these heritage issues which were the primary focus of the parties and their submissions at the hearing.  In addition, matters of urban design, car parking and traffic, pedestrian access, overlooking to the rear of the Royal Terrace, built form and overshadowing impacts to 11 Gertrude Street, and construction impacts, particularly on the adjacent Comfort Apartments Royal Gardens, were raised by the parties.
17	In respect of the relevant heritage considerations in this proceeding,  Heritage Victoria filed a Statement of grounds, but did not seek to become a party to this proceeding.  Attached to their Statement of grounds was a letter which expressed concern regarding the impact of the proposed development, on the heritage qualities of the environs to the REB.  These concerns were based on modelling undertaken by Heritage Victoria, the results of which were also provided.  It is unfortunate that Heritage Victoria chose not to become a party to the proceeding, and participate in the hearing.  As a result, we have not been able to be informed of, and test, the accuracy of the modelling that was relied upon by Heritage Victoria.  We have also not been able to fully inform ourselves as to the reasons for Heritage Victoria’s conclusions regarding the potential impact on this heritage place.  Further, the modelling and Heritage Victoria’s position was not updated in response to the latest amended plans that are now before us, and so we are unaware as to whether the conclusions previously reached by Heritage Victoria, are still relevant in relation to the latest version of the proposal.  For these reasons, we find that the position of Heritage Victoria as expressed in their Statement of grounds and related attachments do not greatly assist us in our decision making task.
18	The issues or questions for determination are:
a.	Is the proposal an appropriate response to the heritage place and context?
b.	Is the proposal an appropriate urban design and neighbourhood character response?
c.	Will there be any unreasonable off-site amenity impacts?
d.	Is an appropriate level of internal amenity achieved for the one apartment?
e.	Does the proposal appropriately provide for car parking and traffic movements?
19	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 Yarra Planning Scheme, we have decided to set aside the Council’s decision, and direct the grant of a planning permit subject to conditions.  Our reasons follow.
is the proposal an appropriate response to the heritage place and context?
20	The review site is located within the Commercial 1 Zone in an activity centre that is about as proximate as one can get to the Melbourne CBD, without actually being within it.  As such, the review site enjoys an unparalleled level of access to a wide range of services and facilities.  A range of policy at both a State and local level therefore encourages the achievement of urban consolidation on the review site.  While that policy basis was unchallenged at the hearing, it is important for us to keep in mind, as we address the heritage context and considerations that are set out below.
21	As we have identified in the introduction to these reasons, the review site sits within an important heritage context, and is itself covered by the Heritage Overlay.  As such, the following decision guidelines from the Heritage Overlay are relevant to our decision making task.
•	The Municipal Planning Strategy and the Planning Policy Framework. 
•	The significance of the heritage place and whether the proposal will adversely affect the natural or cultural significance of the place. 
•	Any applicable statement of significance (whether or not specified in the schedule to this overlay), heritage study and any applicable conservation policy. 
•	Any applicable heritage design guideline specified in the schedule to this overlay. 
•	Whether the location, bulk, form or appearance of the proposed building will adversely affect the significance of the heritage place. 
•	Whether the location, bulk, form and appearance of the proposed building is in keeping with the character and appearance of adjacent buildings and the heritage place. 
•	Whether the demolition, removal or external alteration will adversely affect the significance of the heritage place. 
•	Whether the proposed works will adversely affect the significance, character or appearance of the heritage place.
22	We address the themes identified in these decision guidelines under the sub-headings that follow.
The policy framework
23	The first of these decision guidelines addresses the policy context.  In addition to the encouragement for urban consolidation, the policy context also has much to say about the heritage importance of the review site.  This is most clearly expressed through the following policy from Clause 22.14 Development Guidelines for heritage places in the World Heritage Environs Area.
Policy Basis 
The MSS highlights the importance of the WHEA in providing a buffer zone for the World Heritage Listed Royal Exhibition Building and Carlton Gardens. The WHEA provides a setting and context of significant historic character for the World Heritage property. 
Objectives 
To protect significant views and vistas to the Royal Exhibition Building and Carlton Gardens. 
To maintain and conserve the significant historic character (built form and landscapes) of the area. 
To ensure new development in the area has regard to the prominence and visibility of the Royal Exhibition Building and Carlton Gardens. 
Policy 
It is policy to: 
•	retain and conserve individually significant and contributory places, including contributory fabric, form, architectural features and settings, to assist with maintaining the heritage character of the setting and context of the Royal Exhibition Building and Carlton Gardens. 
•	retain and conserve the valued heritage character of streetscapes to assist with maintaining the heritage character of the setting and context of the Royal Exhibition Building and Carlton Gardens. 
•	retain the predominantly lower scale form of development which provides a contrast to the dominant scale and form of the Royal Exhibition Building. 
•	avoid consolidation of allotments in residential areas which will result in the loss of evidence of typical nineteenth century subdivision and allotment patterns. 
•	protect direct views and vistas to the Royal Exhibition Building and Carlton Gardens from bordering/abutting streets and other views and vistas to the dome available from streets within the precinct including Gertrude Street, Marion Lane and in Victoria Parade immediately east of the junction with Nicholson Street. 
•	discourage the introduction and proliferation of permanent structures and items such as shelters, signage (other than for historic interpretation purposes), kiosks and the like around the perimeter of the Royal Exhibition Building and Carlton Gardens in order to: 
•	avoid impacts on the presentation of the Royal Exhibition Building and Carlton Gardens, including impacts on axial views along treed alleys and avenues; and 
•	minimise inappropriate visual clutter around the perimeter of the Royal Exhibition Building and Carlton Gardens.
24	This key policy is supported by the following policy framework:
a.	Heritage policy at a State level at Clause 15.03-1S which seeks to encourage appropriate development in areas with identified heritage values.
b.	Clause 21.05-1 Heritage which includes the following objectives and strategies:
Protect the significant landscape and heritage within streets, parks, gardens, waterways or other open spaces. 
Protect buildings, streetscapes and precincts of heritage significance from the visual intrusion of built form both within places and from adjoining areas. 
Apply the Development Guidelines for sites subject to a Heritage Overlay policy at clause 22.02 
Apply the Landmarks and Tall Structures policy at clause 22.03 
To protect the setting and context of the World Heritage Listed Royal Exhibition Building and Carlton Gardens
Manage future development within the World Heritage Environs Area surrounding the World Heritage Listed Royal Exhibition Building and Carlton Gardens. 
Protect views to the Royal Exhibition Building from Gertrude Street and Marion Lane through the application of the Design and Development Overlay.
c.	Clause 21.05-2 Urban design, which establishes a desire to retain the existing built form character of the municipality, which is described as a low rise urban form punctuated by pockets of higher development.
d.	Clause 21.08-7 Fitzroy which sets out the following about this location.
The Gertrude Street centre has a number of eclectic and innovative retailers as well as heritage buildings which help to give the centre an individual and unique sense of place. Gertrude Street also has an arts focus which should be retained and fostered.
The policy seeks to achieve the following:
Supporting the existing scale and character of the Brunswick Street and Gertrude Street activity centres.
e.	Clause 22.02, which sets out the general local policy expectations for the development of sites covered by the Heritage Overlay.
f.	And finally, Clause 22.03 Landmarks and tall structures, which includes the following:
Policy 
It is policy to: 
•	Maintain the prominence of Yarra's valued landmark signs. 
•	Protect views to the silhouette and profile of Yarra's valued landmarks to ensure they remain as the principal built form reference. 
•	Ensure the profile and silhouette of new tall structures adds to the interest of Yarra's urban form and skyline.
Landmarks Design Response
Development should protect the views to the drum, dome, lantern and flagpole of the World Heritage Listed Royal Exhibition Building seen from the footpath on the south side of Gertrude Street and along Marion Lane, west of Fitzroy Street.
25	This policy framework is also supported by the application of Schedule 8 to the Design and Development Overlay (DDO8) to the review site, and other properties located on the northern side of Gertrude Street, between Nicholson Street and Fitzroy Street.  The Design and Development Overlay at Clause 43.02 contains a design objective and a range of decision guidelines that are relevant to our decision making task.  In addition, DDO8 contains the following design objectives and decision guideline.
Design objectives 
•	To protect the World Heritage values of the Royal Exhibition Building and Carlton Gardens. 
•	To reinforce the built form character of the area as being essentially of low-rise buildings. 
•	To protect views of the drum, dome, lantern and flagpole of the Royal Exhibition Building from the footpath on the south side of Gertrude Street and along Marion Lane, west of Fitzroy Street.  
Decision guidelines 
Before deciding on an application, the responsible authority must consider the impact on the view of the drum, dome, lantern and flagpole of the Royal Exhibition Building.
26	It is important to note at this stage that DDO08, and policies at Clause 22.03-4 and 22.14 are all consistent in identifying that it is views from Marion Lane, and Gertrude Street west of Fitzroy Street, as the viewing locations to be considered, in assessing the impact on the drum, dome, lantern and flagpole of the REB.  As a reminder, the words in these policies and DDO8 are consistently in the following format.
… from the footpath on the south side of Gertrude Street and along Marion Lane, west of Fitzroy Street.
27	While the words in Clause 22.14 are slightly different, they still refer to the part of Gertrude Street that is ‘within the precinct.’  This is a reference to the World Heritage Environs Area Precinct, which is marked on Map 1 to this Clause as only including land to the west of Fitzroy Street.
28	In responding to questions from Mr Townshend, Mr Trethowan expressed the view that these words at Clauses 22.03-4 and 22.14, as well as DDO8, should be interpreted as referring to all of Gertrude Street, as well as Marion Lane west of Fitzroy Street.  He opines that the important view is from the entire length of Gertrude Street, but in reality he says that it commences at around Smith Street.  We do not share this view.  The construct of the sentences as they appear in DDO8 and Clause 22.03-4, and placement of the comma in these sentences, leads to a natural reading that it is the parts of Gertrude Street west of Fitzroy Street and Marion Lane west of Fitzroy Street that are to be considered.  This is also confirmed by the different wording in Clause 22.14, which refers to a precinct as identified in a Map to that Clause, which is unambiguous as to the extent of Gertrude Street which is to be considered.  Further, if it were to be only Marion Lane that was restricted by the eastern boundary of Fitzroy Street, there would be no need for these words at Clause 22.03-4 and DDO8, as Marion Lane only exists on the western side of Fitzroy Street.  
29	It follows from this interpretation that we are not persuaded by the submissions of Ms Acreman that the extent of views that we should have regard to is not limited to when one is standing within the area covered by DDO8, insofar as that submission urges us to go along Gertrude Street, on the eastern side of Fitzroy Street.  Rather, we consider that the guidance from DDO8 as to where we should stand to consider the impact on views to the REB is clear, and we would be in error to ignore this guidance.  
30	Our interpretation is consistent with the content of the World Heritage Environs Area Strategy Plan: Royal Exhibition Building and Carlton Gardens (Department of Planning and Community Development, 2009) which contains the following analysis of the available views to the REB.
4.4.2 Views to the Site 
Views to the site, from the surrounding area and in some cases from more distant points, have been analysed and assessed. The following is a summary of the views (in order of significance), also indicating where these are available from within the WHEA: 
1. 	Direct views to the REB building, dome and gardens from bordering/abutting streets (Nicholson, Carlton, Rathdowne and Victoria streets, within WHEA), including key axial views into and through the Carlton Gardens to the REB (such as the view along the ‘Grand Allée’ from the south on Victoria Street, see Figure 19). The Melbourne Museum impacts on views to the REB building from the north, including from Carlton Street. 
2. 	Proximate views/vistas to the REB dome from Gertrude Street and Marion Lane in Fitzroy and Queensberry Street in Carlton, running east and west of the REB (within WHEA, see Figure 13, Figure 14 & Figure 15). Similar views are also available from Spring Street (see Figure 16) and the north end of Exhibition Street; Nicholson Street near the junction with Victoria Parade (see Figure 17); the east end of Latrobe Street; and from Victoria Parade immediately east of the junction with Nicholson Street (see Figure 18).
3.	Partial/restricted views (glimpses) of the building, dome, landscape, gardens and trees from points in south Fitzroy, south Carlton, northern areas of the CBD, and north-west area of East Melbourne (within WHEA). 
4. 	More distant views to the REB dome from the east along Gertrude Street, south along Spring Street and west along Queensberry Street (outside WHEA, see Figure 20, Figure 21 & Figure 22). 
As noted above, the Melbourne Museum building generally restricts views to the REB building and dome from the north, emphasised by the fall in the topography to the north. However, glimpses of the dome are available from greater distances to the north, including from Nicholson Street in Brunswick. These are of interest, but are not considered to be significant views.
31	It is evident when comparing this analysis with the current content of the Yarra Planning Scheme, that it is the more important and proximate views at point 2 above that are sought to be protected, and the more distant and less important views at point 4 are not currently protected under the Yarra Planning Scheme.  This follows the recommendations of the Committee appointed to consider submissions to the planning controls proposed in response to the World Heritage Environs Area Strategy Plan: Royal Exhibition Building and Carlton Gardens (Department of Planning and Community Development, 2009).  That Committee, on page 23 of their Report dated April 2009, notes the following:
Based on the information provided to it by submitters, and on observations from its own visits to the WHEA, the Committee concludes that the preservation of the following views to the dome of the REB is important:
•	views from the south east corner of Queensbury Street and Lygon Street;
•	views over the RACS site from the corner of Spring and Bourke Streets;
•	views over the buildings on the north side of Gertrude Street from the corner of Fitzroy Street;
•	views along Marion Lane over Royal Terrace from Fitzroy Street.
In the Committee’s opinion the appropriate planning tool to protect these view lines is the DDO.
32	We note that Heritage Victoria is currently undertaking a review of the World Heritage Environs Area Strategy Plan: Royal Exhibition Building and Carlton Gardens (Department of Planning and Community Development, 2009).  As part of that review, they are currently seeking community feedback on a range of amendments to both the Melbourne and Yarra Planning Schemes. Among the range of proposed amendments to the Yarra Planning Scheme are the following:
a.	Delete the existing Schedule 8 to the Design and Development Overlay, and introduce a new Schedule to the Design and Development Overlay that would cover a greater area of the Yarra municipality.  Significantly, the revised DDO Schedule would differ in the following ways from the existing DDO8:
i.	The design objective that currently references views from Gertrude Street and Marion Lane would be replaced with the following text:
To protect views and vistas of the drum, dome, lantern and flagpole of the Royal Exhibition Building and Carlton Gardens, and maintain the visual dominance of the dome to a clear sky backdrop from primary vantage points.
i.	A set of four decision guidelines are provided, which are set out below.
•	Whether the siting, height and appearance of a building or works detrimentally affects the view of the drum, dome, lantern and flagpole of the Royal Exhibition Building.
•	Whether the siting, height and appearance of a building or works detrimentally affects the view of the WHEA from the dome viewing platform of the Royal Exhibition Building.
•	Whether development ensures materiality is influenced by its heritage setting and is of muted materials and colours, and avoids the use of larger areas of reflective materials.
•	Whether development ensures visibility of building services and plant equipment and plant is minimised and/or screened.
i.	The addition of a map that identifies two key view locations in the Yarra municipality, being located at the intersection of Marion Lane and Fitzroy Street, and at the intersection of Alma Street and Regent Street.  Gertrude Street is not identified as a key view location.
ii.	The application of a preferred height limit of 11.2 metres to the review site and abutting properties to the east of the review site.
b.	Amend the policy at Clause 22.14 through the provision of a map which identifies seven key viewing locations within the Yarra municipality, including ones at the intersections of Gertrude Street with both Fitzroy Street and Brunswick Street, and at the intersection of Marion Lane and Fitzroy Street.  In order to reference the map, the policy statement that currently references views from Gertrude Street and Marion Lane, is reworded to the following.
Protect direct views and vistas to the Royal Exhibition Building and Carlton Gardens from bordering/abutting streets and other views and vistas to the dome available from streets within the precinct including key views illustrated in the Map to this Clause.
33	We note that after the conclusion of the hearing, both the Council and the Applicant filed additional material with the Tribunal, that we understand to comprise their respective submissions to Heritage Victoria in respect of their review of the World Heritage Environs Area Strategy Plan: Royal Exhibition Building and Carlton Gardens (Department of Planning and Community Development, 2009).  As the Tribunal has not granted leave for the filing of any additional material or submissions following the conclusion of the hearing, we have not had regard to this correspondence from the Council and the Applicant, in undertaking our decision making task.
34	If these amendments were already a part of the Yarra Planning Scheme, they would have an interesting impact on our decision making task.  The revised Schedule to the DDO would continue to value views to the drum, dome, lantern and flagpole of the REB, but would strangely remove Gertrude Street as a key viewing location.  On the other hand, the revised policy at Clause 22.14 would retain Gertrude Street as a key viewing location, and extend it east to Brunswick Street, but only reference views to the dome of the REB, and not the drum, lantern and flagpole.  The inconsistency between the exhibited versions of the new DDO schedule and Clause 22.14, indicate to us that much refinement of these proposed planning scheme controls is required, and that we should be careful to place much weight on them at this early stage of the amendment process.
35	As a result, we are not persuaded that we can have regard, as part of our decision making at this time, to the view from the south-western corner of Gertrude and Brunswick Streets.  This is not a part of the identified view in the Yarra Planning Scheme as it presently stands, which is consistent with the recommendation of the Committee, on page 23 of their Report, appointed to consider submissions to the planning controls proposed in response to the World Heritage Environs Area Strategy Plan: Royal Exhibition Building and Carlton Gardens (Department of Planning and Community Development, 2009), which forms part of a reference document to the Yarra Planning Scheme.  Further, for the reasons set out above we cannot place much weight on the review of the Heritage Environs Strategy Plan being undertaken by Heritage Victoria, due to the early stage of that process, and the apparent inconsistent nature of the proposed controls.
36	For these reasons we find that we must be restricted in our assessment of the impacts on the views to the drum, dome, lantern and flagpole of the REB, to Marion Lane, and Gertrude Street west of Fitzroy Street, as directed by the current content of the Yarra Planning Scheme.
The statement of significance
37	As set out in the decision guidelines under the Heritage Overlay, we need to have regard to any relevant statement of significance, and determine if the proposed demolition, appearance of the new building, and the proposed works will affect the significance of the heritage place.
38	The review site falls within Schedule 361 to the Heritage Overlay (HO361) The statement of significance for HO361 is found in the World Heritage Environs Area Strategy Plan: Royal Exhibition Building and Carlton Gardens (Department of Planning and Community Development, 2009) and is reproduced in part below, as is relevant to this part of the World Heritage Environs Area.
What is Significant? 
History 
The World Heritage Environs Area Precinct generally borders and is adjacent to the Royal Exhibition Building (REB) and Carlton Gardens, Carlton. It includes land and properties in the suburbs of Carlton and Fitzroy, the northern area of Melbourne’s Central Business District, and East Melbourne. 
…
The eastern area of the precinct is located in Fitzroy, which was originally known as ‘Newtown’ and was one of the first areas of Melbourne to be developed outside the original town reserve. Subdivision of Fitzroy was somewhat haphazard due to the first allotments of the late 1830s being large (between 12 and 28 acres) and subsequently subdivided without restriction. Victoria Parade and Nicholson Street were Government roads of this era, which helped to provide a framework for a more regular pattern of subdivision in adjacent areas. Private roads, including Gertrude Street were also created, some of which had inconsistent widths and alignments. Gertrude Street was one of the first non-Government streets to be laid out by landowners in Fitzroy and became one of the most important non-Government streets in South Fitzroy, mainly because its original line and length were extended by a number of successive land owners and subdividers in contrast with the disparate pattern of subdivision and street layout which developed in other allotments in South Fitzroy. The ad hoc subdivision and increasingly smaller allotments also resulted in the construction of sub-standard housing in Fitzroy, eventually remedied by the Melbourne Building Act of 1849 which required the use of better quality building materials and practices. Royal Terrace in Nicholson Street is an outstanding example of terrace housing from the 1850s, and is the largest early terrace building surviving in Melbourne. During the 1860s and 1870s development was consolidated, with more substantial premises replacing earlier structures, including on Nicholson Street. Cable trams were introduced to Gertrude and Nicholson streets in the 1880s, facilitating the construction of the Cable Tram Engine House at the junction of the two streets. Institutional uses, such as St Vincent’s Hospital (beginning in a terrace row in Victoria Parade in the 1890s) and the Convent of Mercy (founded in the 1850s) were also attracted to Nicholson Street, the former expanding over many decades to become one of inner Melbourne’s largest hospital complexes, although the majority of the hospital’s landholdings and facilities are not within this precinct. 
…
Description 
…
Gertrude Street, extending east from the REB site between Nicholson and Fitzroy Streets, is an important approach to the REB and Carlton Gardens and provides oblique views of the REB, particularly the drum, dome, lantern and flagpole, from the south side of the street. The Cable Tram which ran along Gertrude Street from the 1880s encouraged commercial development, and much of this survives. Gertrude Street is now a largely intact streetscape of two-storey shops and other commercial buildings, as well as terraces, from the late nineteenth and early twentieth centuries, with some modestly-scaled infill, mostly on the north side. 
…
How is it significant 
The World Heritage Environs Area Precinct is of historical, social architectural and aesthetic significance and reflects the area of greater sensitivity within the buffer zone surrounding the World Heritage listed Royal Exhibition Building and Carlton Gardens. 
Why is it significant 
The World Heritage Environs Area Precinct is of historical and social significance for its association with the World Heritage listed Royal Exhibition Building and Carlton Gardens. The latter is the most complete nineteenth century international exhibition site in the world, and the main extant international survivor of a Palace of Industry and its setting. The Carlton Gardens, within Carlton, was selected as the site for the construction of the Exhibition Building in 1879-1880 and subsequent hosting of the 1880 and 1888 international exhibitions, due to its park-like setting, central location and size (64 acres/26 hectares). The subsequent upgrading of the gardens further augmented their attractiveness which, together with the prominence and visibility of the Exhibition Building, helped enhance the status of this area within the local Carlton and Fitzroy contexts. 
The precinct is also of historical and social significance for incorporating important and intact areas of residential, commercial and institutional development within the early Melbourne suburbs of Carlton and Fitzroy, and institutional development in the northern area of Melbourne’s Central Business District. These areas are significant to the respective municipalities of Melbourne and Yarra for demonstrating aspects of local historical development, and for contributing to the historical character of the municipalities. The areas also provide an immediate setting and context of significant heritage character for the REB and Carlton Gardens site, including properties which directly address the site and can be seen from the site; and significant development which preceded, was broadly contemporary with or followed the 1879-1880 construction and development of the REB. 
The precinct is of architectural and aesthetic significance. It retains substantially intact nineteenth century streetscapes, particularly on Nicholson Street (north of Gertrude Street), the south side of Gertrude Street, Carlton Street, and Rathdowne Street north of Pelham Street. The streetscapes display a comparatively high proportion of original nineteenth form and fabric, including substantial areas of two-storey, with some three-storey residential and commercial development. The streetscapes also interspersed with prominent institutional properties of the nineteenth and early twentieth centuries. Materials and architectural elements include face brick, bluestone and rendered masonry construction materials; pitched and hipped iron and slate-clad roofs; chimneys; prominent parapets and pediments; post-supported verandahs, many with elaborate iron lacework or timber detailing; a high proportion of iron palisade fences; and typically zero or shallow front setbacks with gardens. Public infrastructure includes some bluestone pitched road and lane surfaces, and kerbs. Plane trees are common street plantings. The precinct additionally exhibits a typically fine grain pattern of urban development, generally emphasised by the regularity of the terrace row subdivisions, narrow allotments and street grid, with many streets running at right angles to the REB site. 
A number of key heritage buildings from the nineteenth and early twentieth centuries are located in the precinct, some of which are landmarks in their own right but which also have a strong visual relationship or connection with the REB. These buildings, most of which are included in the Victorian Heritage Register, include Royal Terrace, the Cable Tram Engine House, Convent of Mercy/Academy of Mary Immaculate complex, Grantown House and Osborne House on Nicholson Street; the Sacred Heart Church complex including Presbytery, former Presbyterian Manse, Carlton Gardens Primary School, and former St Nicholas Hospital nurses’ home on Rathdowne Street; and the Royal Society building on Victoria Street. 
The precinct provides for significant views to the REB and Carlton Gardens site including direct views to the building, dome and garden setting from bordering/abutting streets, depending on where the viewer is standing. It also provides some proximate views and vistas to the REB dome from streets and minor lanes to the east and west of the site (including Gertrude Street and Marion Lane in Fitzroy and Queensberry Street in Carlton); the north ends of Spring and Exhibition streets; Nicholson Street near the junction with Victoria Parade; the east end of Latrobe Street; and from Victoria Parade immediately east of the junction with Nicholson Street. Views out of the REB site into the precinct also reinforce the understanding and appreciation of the original nineteenth century context and significant setting of the REB.
39	It is evident from this Statement of significance that it has heavily influenced the policy framework of the Yarra Planning Scheme, as the key themes of the significance of this part of the World Heritage Environs Area repeat themes which we have identified above from our policy analysis.  These include the views to the drum and dome of the REB from Gertrude Street and Marion Lane, and how views out from the REB reinforce the original nineteenth century context and setting.
40	These are themes that weigh heavily on our assessment that follows.
Demolition
41	None of the parties that appeared before us oppose the proposed demolition of the existing building on the review site.  The existing building is non contributory, and as such its demolition is supported by policy at Clause 22.02-5.1 of the Yarra Planning Scheme which sets out the following:
Generally encourage the retention of a building in a heritage place, unless 
•	The building is identified as being not contributory.
•	…
42	Just as importantly, the demolition of the existing building is a positive aspect of the proposal, as it is currently a blight on the Gertrude Street streetscape.  While its two storey scale is in keeping with the existing heritage scale, it really has nothing else positive going for it.  The existing building provides an inactive and unattractive presentation to Gertrude Street, comprising undercroft car parking, a plain brick wall and a roller door at ground level, a series of windows at first floor level that add little to the visual interest of the existing building, and an unadorned rectangular profile that defies the architectural interest and detailing in the surrounding heritage building stock.  The building’s presentations to Royal Lane and Marion Lane are no better, however that is not usual for buildings that abut laneways in this location.
43	On a net community benefit analysis, we find that the demolition of the existing building represents a significant benefit.
New building and works
44	As we have identified earlier in these reasons, there are four key heritage concerns raised by parties that can frame our assessment of the proposed buildings and works, under the decision guidelines of the Heritage Overlay.  Those concerns are:
a.	The impact on the views to the drum, dome, lantern and flagpole of the REB from Gertrude Street;
b.	The impact on the views to the drum, dome, lantern and flagpole of the REB from Marion Lane;
c.	The impact of the proposed five storey building on the low scale environs that are intended to surround and provide a built form contrast to the grandeur and the prominence of the REB;
d.	The manner in which the proposal relates to the immediate heritage context, including the bluestone dwelling at 11 Gertrude Street, and the Royal Terrace at 50-68 Nicholson Street.
45	We will assess each of these issues in turn.
Views from Gertrude Street
46	It is the evidence of Mr Trethowan that in order to achieve the outcome sought by the Yarra Planning Scheme, that there must be no new development taking place that would further obscure views from both Gertrude Street and Marion Lane, as compared to the existing site conditions.  He also opines that any new development must allow a silhouette of views to the sky around the drum, dome, lantern and flagpole, that allows these elements of the REB to be viewed as an object in space.  In relation to the views from Gertrude Street, it is the evidence of Mr Trethowan that existing views along the entire length of Gertrude Street to the drum, dome, lantern and flagpole of the REB, are to be protected.  On this basis Mr Trethowan raises a concern with the impact depicted on the photmontages prepared by Pointilism, which depict that from the corner of Gertrude Street and Brunswick Street, the uppermost two floors are covering part of the drum of the REB, so as to impact its appearance in what he says is a significant way.  In respect of the photomontage from the corner of Gertrude Street and Fitzroy Street, it is the evidence of Mr Trethowan that as only a little bit of the drum of the REB is being impinged upon, but not significantly, that if this were the only impact, he would not be concerned in respect of it.
47	It is the evidence of Mr Beeston that the impacts on views from the intersection of Gertrude Street and Fitzroy Street to the drum, dome, lantern and flagpole are not unreasonably impacted, having regard to the viewing locations depicted in the montages provided.  Mr Beeston also forms this view having regard to the other montage locations prepared along Gertrude Street, between Fitzroy and Nicholson Streets.  However, Mr Beeston opines that there will be an unreasonable incursion from Gertrude Street, as the pedestrian’s experience is not static, but rather dynamic along the length of this part of Gertrude Street, and the photomontages are only taken from certain static locations.
48	The Tribunal has been provided with a comprehensive set of photomontages.  In respect of the pedestrian’s journey along the southern side of Gertrude Street, images are provided from the following locations:
a.	The south-western corner of the intersection with Brunswick Street;
b.	Roughly midblock between Brunswick and Fitzroy Streets;
c.	Both sides of the intersection with Fitzroy Street; and,
d.	West of the intersection with Fitzroy Street, at two locations roughly outside 48-50 Gertrude Street, and 40 Gertrude Street.
49	These montages, coupled with our own observations from our site inspection, reveal that there will be no unreasonable impact from views from the southern footpath of Gertrude Street, west of Fitzroy Street.  Of this stretch of Gertrude Street, the greatest impact is from the intersection with Gertrude Street.  From this location, the proposed second floor on the review site intrudes in the very bottom corner of the dome of the REB.  This is the most minor of incursions, and cannot be said to affect the significance or importance of this viewline, or one’s appreciation of the REB, from this location.  The extent of incursion into views to the REB drum from this location, is approximately equal to the extent of incursion caused by the existing building on the review site.  Further, from this location there is no impact on the views to the drum, lantern and flagpole of the REB.  For these reasons, we are satisfied with the proposal insofar as the views from the intersection of Gertrude Street and Fitzroy Street are concerned.
50	Heading west from Fitzroy Street, the viewline from the southern footpath of Gertrude Street opens up such that it is no longer dependent on the proposed built form on the review site, in order to maintain a view of the drum, dome, lantern and flagpole of the REB.  As such, from locations along Gertrude Street between Fitzroy Street and Nicholson Street, the proposed building on the review site has no impact on views to the drum, dome, lantern and flagpole of the REB.  Indeed, as the proposed building on the review site has a lower street wall height and a more generous setback to the first floor as compared to the existing building on the review site, on some locations along the southern footpath of Gertrude Street, there are increased views to parts of the REB, and the rear elevation of the significant Royal Terrace.
51	As we have identified above, locations along Gertrude Street between Fitzroy Street and Brunswick Street are not viewing locations identified in the Yarra Planning Scheme as relevant to our decision making task.  Therefore, while we agree that there is a small impact on views to the drum of the REB from these locations, we would be in error to allow that impact to affect our views as to the suitability of the proposed building on the review site. 
52	For these reasons, we find that the proposed development appropriately protects the valued views from Gertrude Street, as currently nominated in the Yarra Planning Scheme.
Views from Marion Lane
53	It is the evidence of Mr Trethowan that the views from the intersection of Marion Lane and Fitzroy Street will be compromised, as the proposed development will unbalance the setbacks of buildings on both sides of the drum and dome of the REB.  In his opinion, a greater setback is required from the rear laneway, in order to reinstate a backdrop of sky on the southern side of the drum to the REB.  
54	It is the evidence of Mr Beeston that while the proposed development does not obstruct the views of the drum, dome, lantern or flagpole of the REB, that it will have the unreasonable effect of narrowing the view corridor and crowding the breathing space around these elements of the REB, as viewed from the intersection of Marion Lane and Fitzroy Street.
55	The photomontages that formed part of Mr Watson’s evidence depict that from the corner of Marion Lane and Marion Street, there will be absolutely no impact on views to the drum, dome, lantern and flagpole of the REB, and an area of sky views will be maintained around these features so that the entire silhouette will be retained.
56	From the intersection of Marion Lane and Fitzroy Street, a view along the centreline of Marion Lane reveals that while views to the entirety of the drum, dome, lantern and flagpole of the REB are retained, the proposed building on the review site essentially removes the sky views on the southern side of the drum.  This occurs due to the siting of levels 2 and 3, and their narrow setback from Marion Lane.  From the intersection of Marion Lane and Fitzroy Street, these levels impact the ability of the pedestrian to appreciate the iconic shape or silhouette of the drum and dome from this location.  
57	The montage that has been prepared from the intersection of Marion Lane and Fitzroy Street, depicts this impact from a viewing location centrally positioned in the laneway.  As a result, parties in the proceeding submit that a greater impact would occur from a viewing position aligned with the southern half of Marion Lane from this location.  However, on our observations, views from a standing location in the southern portion of Marion Lane towards the REB are already obscured by a range of built form.  As such, we concur with the approach taken by the ‘author’ of the montages, Mr Watson, that a central viewing location is appropriate for our assessment.
58	Mr Townshend QC in his closing submissions sets out the following.
20. 	Instead, the discussion focussed on whether that was enough or whether lateral sky view was also important. The Tribunal should resist the quest to protect lateral views:
a. 	The view to be protected is not articulated in this way in DDO8;
b. 	Such a view is at odds with the gun barrel nature of the fortuitous view in place and the narrowness of the lane itself;
c. 	Such a view is at odds in a statutory sense with the ability to build up to 8.5m on the boundary (and at the rear of Royal Terrace) without a permit under this control when the purpose of the control is very specific;
d. 	The proposal is set back approximately 2m m at Level 4 and approximately 1.4m m at the three levels below.
59	We are not persuaded by these submissions, for the following reasons, responding to each of the subsets of Mr Townshend’s submissions as set out above.
a.	DDO8 is no clearer on the view that is to be protected, than stating that it is the views to the drum, dome, lantern and flagpole of the REB that are to be protected.  We consider this could be interpreted as either protecting the view of those elements only, or of protecting the view to those elements with a backdrop of sky, so that the silhouette of those built form elements of the REB are clearly viewed.
b.	The current gun barrel view allows an appreciation of the sky surrounding the drum, dome, lantern and flagpole of the REB, and we see no reason why such a gun barrel view cannot continue to provide such an outcome.
c.	While a building may be constructed as of right under DDO8 to 8.5 metres in height, that is not true of the HO361 that applies to the land, and which requires a building for buildings and works.  Further, a permit application under HO361 is subject to policy at Clauses 22.03 and 22.14 of the Yarra Planning Scheme that guide one to consider the impact on the views to the drum, dome, lantern and flagpole of the REB from Marion Lane.  We therefore consider that even a building under 8.5 metres in height on the review site needs to address this policy guidance.  
Our views on this matter are held despite the submission of Mr Townshend, that any such decision to grant a permit required for a lower building under HO361, is properly guided by policy at Clause 21.05-1 of the Yarra Planning Scheme, which includes the following.
Protect views to the Royal Exhibition Building from Gertrude Street and Marion Lane through the application of the Design and Development Overlay
This policy statement encourages a heritage assessment based on the content of DDO8, which in turn only requires a permit for buildings taller then 8.5 metres.  However, where DDO8 does not require a permit, its content could not be applied in decision making, and as such this policy statement at Clause 21.05-1 becomes redundant.  In such a situation, the policies at Clauses 22.03 and 22.14 remain relevant, which still require consideration of the impact on views to the drum, dome, lantern and flagpole of the REB from Marion Lane.
In any case, the parts of the building at issue here are those comprising levels 2 and 3, which each rise higher than 8.5 metres in height.
d.	We acknowledge that setbacks have been provided, the question before us is whether the proposed setbacks are sufficient.
60	We consider it important to retain an appropriate view to sky between the drum and dome of the REB, and the proposed building on the review site, from this viewing location.  The various experts that appeared before us over the nine hearing days variously described this view to sky as a negative space, or a breathing space.  The provision of such a view to sky, thus accentuating the silhouette of the REB, would be consistent with the intent of the existing controls in the Yarra Planning Scheme, as annunciated by the Committee Report for the World Heritage Environs Area Strategy Plan: Royal Exhibition Building and Carlton Gardens (Department of Planning and Community Development, 2009) on page 29:
In the circumstances, the appropriate course is to include a clear design objective to protect views and to require any future development seeking approval to demonstrate that it will not obscure, partially or fully, the silhouette of the dome from relevant vantage points.
61	It would also be consistent with the policy found at Clause 22.03-3 of the Yarra Planning Scheme, as set out below.
It is policy to: 
•	…
•	Protect views to the silhouette and profile of Yarra's valued landmarks to ensure they remain as the principal built form reference.
62	We consider that the manner in which the proposed building, on views from the intersection of Marion Lane and Fitzroy Street, will remove the sky views on the southern side of the drum of the REB, to unreasonably affect the silhouette and profile of the REB.  To address this concern, we will require by way of a permit condition, a minimum setback of 2.09 metres from the northern boundary of the review site, to levels 2 and 3 of the proposed building.  This will require these levels to repeat the setback depicted on level 4, which we observe to provide an appropriate amount of breathing or negative space around the drum and dome of the REB, as depicted on the montages that formed part of Mr Watson’s evidence in this proceeding.
Low scale environs to the REB
63	It is the evidence of Mr Trethowan that the proposed mid rise building on the review site is inconsistent with the low rise streetscape either side of Gertrude Street.  He opines that the retention of this low rise, low scale character is paramount, as it contrasts with the scale of the dome, that assists to contribute to the significance of the REB.
64	It is the evidence of Mr Beeston that the overall height of the proposed building is inappropriate, as it breaks out of the low scale environment that sits in the foreground to the dome of the REB, and is not consistent with the predominantly low scale form of development, that is sought to be retained in the environs of the REB.  
65	As a reminder, the most direct explanation of the outcome sought in respect of this part of our assessment, is derived from the following policy statement at Clause 22.14 of the Yarra Planning Scheme.  
retain the predominantly lower scale form of development which provides a contrast to the dominant scale and form of the Royal Exhibition Building.
66	We do not agree with the opinion expressed by Mr Raworth that this policy statement is not about the height of new development.  In his view, the dominance of the REB is about its scale and garden setting, as well as the available vistas to it.  While we agree that these elements contribute to the dominance of the REB, we also consider that an important element of its dominance is its relative height, compared to the low scale, and relative height of, the buildings within its environs.  For these reasons we read the policy statement referenced above from Clause 22.14, as seeking to influence the height of new development within the environs of the REB.
67	Having regard to this guidance, we find that the proposed development achieves an appropriate low scale of development for this location.  We make this finding for the following reasons.
68	Firstly, the height of the proposed development will provide a contrast to the dominant scale and form of the REB.  The proposed building on the review site will have a parapet height of 61.85 AHD.  While it will also have a height of 63.85 AHD to the top of the roof plant, this roof plant will not generally be visible from the surrounding environs, due to the extent to which it is setback from the parapet to the top level.  In comparison, the REB has the following heights:
a.	69.27AHD to the parapet to the viewing platform at the base of the drum;
b.	83.47 AHD to the top of the drum and base of the dome;
c.	98.01 AHD to the top of the dome and base of the lantern;
d.	104.97 AHD to the top of the lantern and base of the flagpole; and,
e.	112.27 AHD to the top of the flagpole.
69	As such, the proposed building on the review site will be around 20 metres lower that the top of the drum, and some 34 metres lower that the top of the dome of the REB, even when comparing these parts of the REB to the top of the roof plant on the proposed building, which will be largely invisible.    These are significant differences in scale, and will maintain a contrast in scale between the REB, and the proposed building on the review site.  Further, it is our view that these differences in height will maintain the dominant form and scale of the REB, when compared to the scale of the proposed building on the review site.
70	Secondly, we find that the height of the proposed building on the review site is not that dissimilar to other existing buildings in the immediate context.  We note that Comfort Apartments Royal Gardens to the immediate north of the review site rises to four storeys in part, with a parapet height of 57.95 AHD.  Royal Terrace has a parapet height of 56.07 AHD, not including the taller central nameplate that faces Nicholson Street and has an overall height of 57.1 AHD.  We consider that the proposed parapet height on the review site of 61.85 AHD is not dissimilar to these existing building heights, particularly when one considers that these existing buildings present their parapet heights to their respective street walls, whereas the proposed height on the review site is achieved by a setback top level.  The effect of the placement of height across a site, and the similarity in height between the proposal for the review site and nearby buildings, can be seen in photomontage view 3 as prepared by Mr Watson in his evidence.  As reproduced below, on this view towards the REB, the proposed building on the review site (on the left side of the laneway in this image) appears at a similar height to the existing Comfort Apartments Royal Gardens on the opposite side of Marion Lane (on the right side of the laneway in this image).

71	We also note that a five storey contemporary building already exists in this part of the World Heritage Environs Area, at the rear of 34 to 44 Gertrude Street.  On our view, that existing building at the rear of 34 to 44 Gertrude Street can appropriately be described as a low scale building in comparison to the dominant scale and form of the REB, as can the proposed building for the review site.
72	Thirdly, we are persuaded that, on views from the forecourt to the eastern entrance to the REB, the proposed building on the review site will be largely not visible above the parapet of Royal Terrace.  This is evident in the photomontage prepared by Mr Watson, which depicts the narrowest of slithers of the proposed built form being visible over the parapet of Royal Terrace.  Given the tiny extent that is visible, and the distances involved, we consider that views to the proposed building from this forecourt will not be able to be perceived.  We also consider that the extent of the proposed building on the review site that will be visible above Royal Terrace from this location, will reduce further as one walks to the east, despite the rising topography in this location.
73	Fourthly, we have been able to consider the view out from the viewing platform at the base of the drum of the REB, as we were afforded the opportunity by Museums Victoria to take in this view.  Our inspection revealed a range of low scale buildings visible on the opposite side of Nicholson Street, some of which are more pronounced than others.  We noted on our view that the early low scale environs would have included some buildings of height, including the Ursula Frayne Memorial Chapel that sits at the north-eastern corner of Nicholson and Palmer Streets, and which forms a part of the Convent of Mercy and Academy of Mary Immaculate.  
74	On our view, the proposed building on the review site will sit comfortably into the low scale environs that surrounds the REB, as viewed from the viewing platform at the base of the drum of the REB.  From such a vantage point, the proposed building on the review site will add to the collection of low rise buildings and roof forms that are already visible, and which sit in the foreground to the public housing towers at Brunswick and Gertrude Streets.  The overall height and scale of the proposed building will not be dissimilar to the existing Royal Terrace and Royal Apartments Comfort Gardens, as well as the exiting five storey building within the World Heritage Environs Area, at the rear of 34 to 44 Gertrude Street.  
75	For these reasons we find that the proposed development achieves an appropriate low scale of development for this location.
The immediate heritage context
76	It is the evidence of Mr Trethowan that the proposed street level modulation is not consistent with the existing streetscape, as the variation in width of the framing elements does not reflect the consistent rhythm of frontages found in the nearby terraces.  This and other concerns expressed by Mr Trethowan in relation to the immediate heritage context, are set out in the following extract from his evidence statement.
[51]	Leaving the overriding issues of height and upper level setback aside, the design response encapsulated in the proposal, fails to respond to the pattern of Gertrude Street and to a lesser extent Royal Lane. Most of the existing heritage buildings in Gertrude Street are built to the street frontage, however at the western end of the street former two storey Victorian dwellings are setback from the street frontage with the frontage delineated by a fence (for example no 11). In addition, the buildings in the street have a reasonably consistent rhythm with each shop or residential unit generally occupying around a 6 metres of street frontage. The proposal ignores this setback approach varying the building setback along the frontage and negating the property boundary with paved setbacks that do not define the property boundary. It fragments the unity of the streetscape and ignores the consistent rhythm of the street by setting up its own arbitrary rhythm with bays of varying width and varying setback. In addition, paved setbacks are neither a heritage feature of the Gertrude Street, the World Heritage Environs Area nor other major thoroughfares of the South Fitzroy. Overall, the approach is not acceptable. The need to respect the pattern, rhythm and character of surrounding streetscapes is set out in the Heritage Guidelines (Clause 22.02) 
[52]	The vertically arranged bays of the Gertrude Street elevation of the development are a step in the right direction in terms of maintaining the vertically resolved rhythm of the Gertrude Street however the side elevation to Royal Lane lacks any pretence of verticality. This elevation is particularly visible given the low rise nature of the outbuildings and garages on the adjacent properties to the west. Given the cue of the original west elevation to Granite Terrace (refer Figure 11), the architectural approach could provide a more satisfactory design outcome along this face of the proposed complex by locating a three storey massing element along this long elevation. The need for new buildings located on two frontages to respect the built form and character of the heritage place is set out in the Heritage Guidelines (Clause 22.02). 
[53]	Critcally the proposal makes no effort to enhance the existing somewhat compromised setting of the adjacent building at No 11. Currently this interesting heritage building is encroached on both sides by taller buildings with no street setback. This was not the case in the past when Granite Terrace with its relatively generous front setback allowed the west side of No 11 (including the chimney) to be exposed. A more sensitive design approach would consider this current shortcoming and enhance the setting of No 11 accordingly. The need to treat adjoining heritage buildings with deference is set out in the Heritage Guidelines (clause 22.02) 
77	It is the evidence of Mr Beeston that the Gertrude Street façade should be setback to align with the front façade of the dwelling at 11 Gertrude Street, consistent with the largely residential character of this end of Gertrude Street, and so that the front façade of the existing basalt building at 11 Gertrude Street can be readily appreciated.  It is also the evidence of Mr Beeston that while the proposed podium height is appropriate, that the extent of taller built form set behind this podium will ‘visually engulf’ the individually significant building at 11 Gertrude Street.  Finally, Mr Beeston opines that the height and extent of the podium wall to Royal Lane would have a negative visual impact on the relationship of the review site to the adjacent Royal Terrace.
78	We are not persuaded by this evidence, and the accompanying submissions, and instead find that the proposed development is an appropriate response to its immediate heritage setting.  We make this finding for the following reasons.
a.	The proposed street wall height at 7.3 metres is a very sympathetic response to the existing façade height of the adjacent dwelling at 11 Gertrude Street.  This street wall height, which is lower than much of the heritage façade heights along Gertrude Street, cannot reasonably be criticised on heritage grounds.
b.	The extent of front setback provided to the ground floor podium to Gertrude Street, and the manner in which the width of the front setback varies across the site’s frontage, is also an appropriate response to the surrounding heritage context.  Given the manner in which the existing dwelling at 11 Gertrude Street has never in its history had its front setback aligned with buildings to either side in the streetscape, there is no need on heritage grounds to match the front setback of 11 Gertrude Street on the review site.  This is despite the following policy guidance found at Clause 22.02-5.7.1 of the Yarra Planning Scheme:
Encourage setbacks from the principal street frontage to be similar to those of adjoining contributory buildings; where there are differing adjoining setbacks, the greater setback will apply.
This policy statement applies to all heritage contexts within the municipality.  In this predominantly commercial streetscape on the northern side of Gertrude Street, we do not consider it appropriate that such a policy statement should have the effect of mandating, or even encouraging, that a commercial development of the review site should repeat the setback to the only setback residential property in this streetscape.  
Further, we adopt the oral evidence of Mr Lovell, that 11 Gertrude Street will always be a diminutive building in this streetscape, that will, as a result of its setback from the street, be a building that is discovered as one moves along Gertrude Street.  It is not a building that requires adjacent buildings to be sited in a manner to protect key viewlines or vistas to its front facade.
For these reasons we support the front setbacks proposed on the review site to Gertrude Street.  The proposed setbacks to the glazed walled and framing elements provides a sympathetic response to the setback at 11 Gertrude Street, while also recognising the variety of front setbacks that exist in the broader streetscape.
c.	The treatment of the front façade to Gertrude Street is also a sympathetic response to the rhythm and character of the heritage buildings found along this stretch of Gertrude Street.  We find that the use of the irregular framing elements around sections of glazed walls to the front street wall is an appropriate contemporary response to the variety of widths of the individual facades within the nearby Victorian terrace buildings.  We also consider the manner in which the glazing extends to the full two storey height of the front façade to be an appropriate response, and that from a heritage perspective there is no need to retain the elements of ‘hit and miss’ brickwork that have been added to the proposed first floor façade at the Council’s request.
d.	We are not persuaded by the evidence of Mr Trethowan that raises a concern with the paving treatment within the front setback to Gertrude Street.  Given the desire for some form of front setback to Gertrude Street in response to the existing condition at 11 Gertrude Street, and the proposal for commercial tenancies at ground floor level, we consider that the provision of a paving treatment within this front setback to be a practical requirement.  We also consider that the failure of the proposal to delineate the boundary between the public and private realm with a fence or other similar structure to be an outcome that will not have an unreasonable impact on the character or significance of the heritage place.  We make this finding as the existing Gertrude Street streetscape is already a mixed streetscape comprising both buildings built to the front boundary, and others with a small setback treated in a variety of ways.  
e.	The setbacks to the upper levels will expose again to street view the chimney at 11 Gertrude Street that is positioned closest to the front façade.  While the chimney set further back from Gertrude Street would remain hidden from public view, this is the case currently, and would have been the case since the dwelling at 11 Gertrude Street was first constructed, when the original Granite Terrace would have graced the review site.  For these reasons, we consider that the proposed setbacks to the upper levels on the review site are an appropriate response to the chimney locations at 11 Gertrude Street.
f.	The proposed setbacks to the upper levels are generous, and will allow the proposal to present in the Gertrude Street streetscape as a low scale building, with appropriately setback upper levels.  Above the two storey podium, the second floor is setback 4.0 metres from the front boundary, the third floor setback between 7.0 and 9.0 metres, and the fourth floor setback 10.0 metres.  We find that these setbacks will emphasise the low scale character of the two storey podium, by reducing the visual presence of the upper levels in the streetscape.  While the upper levels will still be visible on streetscape views, their generous setbacks will be easily read.  As such, the upper levels of the proposed building will appear as simply another of the already existing taller buildings in the broader neighbourhood, that can be read at a distance behind the valued low scale street wall.  For an activity centre context such as this, we find that the extent of setbacks proposed, and the low overall scale of five storeys, to be elements that more than sufficiently reinforce the primacy of the heritage two storey street wall scale in Gertrude Street.
g.	While we recognise the exceptional heritage values of Royal Terrace, we note that these heritage values are most appropriately appreciated firstly from Nicholson Street, and secondly from Gertrude Street.  The two storey podium proposed for the review site to front Gertrude Street, and the setbacks to the upper levels as described above, will retain the existing prominence of Royal Terrace in the Gertrude Street streetscape.  The presentation of Royal Terrace to Royal Lane comprises a series of contemporary garages of various styles, that do not contribute to the heritage significance of Royal Terrace.  The review site therefore interfaces with the least sensitive component of Royal Terrace.  This enables the establishment of a robust presentation on the review site to Royal Lane, without impacting the significance or character of Royal Terrace.  For these reasons, we consider that no built form on the review site, of the height proposed, could have a negative impact on this adjacent heritage place.
h.	Finally, while Marion Lane is covered by a variety of heritage overlays, in the context of the review site it is surrounded by non-contributory buildings, including the existing building on the review site, the Comfort Apartments Royal Gardens on the northern side of Marion Lane, and the modern car accommodation found at the rear of many properties.  In this environment of predominantly non-contributory buildings in a broader heritage neighbourhood, we consider the proposed development on the review site presents an appropriate built form response.  
79	For these reasons we find that the proposed development of the review site is an appropriate response to the character and significance of the various heritage places that surround the review site.
Conclusion
80	For the reasons set out above, we find that the proposed development has been carefully crafted to form an appropriate response to the various considerations identified by the decision guidelines to the Heritage Overlay, and the various heritage qualities and aspects of this important location.  The proposed building on the review site responds appropriately to the guidance provided by the Yarra Planning Scheme, and represents an appropriate infill insertion into this context, having regard to the various interfaces to the review site.
Is the proposal an appropriate urban design and neighbourhood character response? 
81	Given the extent to which the character of this neighbourhood is defined by its heritage significance and other heritage qualities, it is difficult to separate the urban design and neighbourhood character assessment of this proposal, from the heritage assessment that we have already identified. Indeed, if we were to set out the submissions from the parties in relation to the urban design and neighbourhood character considerations that are before us, it would largely repeat the heritage submissions and evidence that we have already summarised earlier in these reasons.  As an example of this relationship, DDO8 that applies to the review site, and which would normally raise broader neighbourhood character and urban design matters, is solely focussed on the heritage considerations of views to the REB, and the low rise character within the world heritage environs area.  
82	However, we recognise that in addition to the content of Schedule 8 of the Design and Development Overlay, that the content of Clause 43.02 of the Yarra Planning Scheme is also relevant.  We therefore adopt the approach put forward by Ms Marshall on behalf of the Council, that we need to have regard to the broader control and guidance provided by the head provision of the Design and Development Overlay.  We form this view despite the narrow focus of DDO8.  As such, the decision guidelines at Clause 43.02-6 have also influenced the assessment that follows.
83	Given the depth of the heritage analysis which we have conducted earlier in these reasons, we consider that it is appropriate to rely on this analysis from an urban design and neighbourhood character viewpoint, and add the following observations.
a.	The proposed building heights and setbacks to Gertrude Street are an appropriate response to the existing street wall heights, and the range of buildings heights found in the surrounding neighbourhood.  We note that the broader neighbourhood comprises some buildings of height, including the five storey building at the rear of 34 to 44 Gertrude Street, those associated with St Vincent Hospital and the Australian Catholic University to the south, and the public housing towers on the western side of Brunswick Street.  We also note that, on a municipality wide comparative analysis, the proposal to site a five storey building on a generously proportioned site such as this, within an activity centre, and with three road abuttals, represents a conservative built form response.  We also consider that at this height and setbacks, the proposal is an appropriate response to the various policy guidance in relation to urban design and neighbourhood character considerations found in the Yarra Planning Scheme, including the policy at Clause 21.05-2.
b.	The extent of glazing proposed to Gertrude Street, particularly within the two storey podium, is to be encouraged on urban design grounds, given the extent to which it will increase surveillance and activation of a part of Gertrude Street that currently lacks these attributes.  The provision of a range of commercial floorspace directly accessible from Gertrude Street is also a positive urban design aspect of this proposal, as it will contribute to the pedestrian experience.  We consider that the extension of these glazed frontages to the first floor, thus revealing the activity within the office floorspace to the street, is a positive aspect of this proposal, which should not be tempered by the proposed sections of hit-and-miss brickwork at first floor level, which we understand were a late addition to the proposed plans.  We therefore support the removal of this part of the front façade, as is also supported by Mr O’Dwyer.
c.	The proposed heights and setbacks to Royal Lane and Marion Lane are appropriate given the existing robust nature of these laneways, and the variety in heights of buildings that presently abut these two laneways.  These include the existing four storey components of the Comfort Apartments Royal Gardens.  At five storeys, the proposed development on the review site will only be marginally taller than the existing buildings that abut these laneways, and will be appropriately articulated and have upper level setbacks to support the proposed height.  Again, in a rear laneway environment to an activity centre, the proposal for a setback five storey building is a conservative built form proposal, on a municipality wide comparative analysis.
d.	We have not been persuaded by those parties that oppose the grant of a permit, that the proposal fails to provide appropriate surveillance of Royal Lane, which should be remedied by the provision of unscreened windows from the ground floor retail space.  The plans that are before us depict the use of glazing along part of the ground floor interface with Royal Lane, screened by a hit and miss brick veil.  We anticipate that this architectural treatment will provide an appropriate level of surveillance of Royal Lane, noting that the southern half of Royal Lane is already well surveyed by the pedestrians and other activity along Gertrude Street.  We consider that unscreened glazing is not necessary to add to the existing and proposed surveillance opportunity, and that a clear argument exists for the brick veil, given the unsightly view of garage doors that exists on the opposite side of Royal Lane.
e.	We consider that the proposed materials and colours are an appropriate response to the heavy reliance on bricks within the nearby buildings, and the extent to which some surrounding buildings are completed in a single color finish.  In respect of the proposed building on the review site, we find that an appropriate level of articulation is achieved by the wide expanses of glazing at each level, the use of various brick patterns in the various facades, and the clever use and placement of balconies and planter boxes.
f.	Finally, we note that some parties oppose the proposal on the basis of what they submit is the orientation of upper levels to the west, rather than to Gertrude Street.  We consider that each of the upper levels appropriately present to Gertrude Street, having regard to the extent of glazing proposed, the balconies at second and third floor levels, and the other design techniques which we have described above.  To the extent that the upper levels could be described to be orientated to face west, we do not consider that to be an inappropriate outcome given the views on offer to the REB.  Importantly, this design approach has not detrimentally impacted the manner in which the proposal will be viewed in the Gertrude Street streetscape.
84	For these reasons we find that the proposed development is an appropriate response to the existing neighbourhood character, and the usual urban design assessment for a site such as this within an activity centre.
Will there be any unreasonable off-site amenity impacts?
85	Off-site amenity impacts are usually measured in terms of visual bulk, overlooking and overshadowing.  While off-site amenity impacts were not the focus of the parties in this proceeding, some concerns were raised about different elements of the proposed development. 
86	The key issue regarding impact on off-site amenity relates to proposed wall on the eastern boundary of the review site, adjacent to the dwelling and ground level area of secluded private open space at 11 Gertrude Street.  The rear ground level courtyard at 11 Gertrude Street is a narrow space that serves as the only area of secluded private open space for that property.  While the site at 11 Gertrude Street is within a Commercial 1 Zone, it has been designed as a residence, and we are informed by Ms Wolf that it continues to be used as a residence.  This space is already enclosed by two to three storey high walls from the adjacent buildings.  The proposal for the review site will result in a four storey high boundary wall to a height of 14.4 metres, with the fifth storey setback a distance of 1.0 metre from the common boundary. 
87	Mr Townshend QC submits that we should not be concerned regarding the potential amenity impact on this ground level area of secluded private open space for the following reasons.
a.	There has always been a high wall condition that has impacted the amenity of the ground level courtyard space, and therefore the amenity impact arising from the proposed wall is not a critical assessment.  While Mr Townshend QC acknowledges that this boundary wall is taller than what has existed previously, it is more of the same site condition, that is a strong boundary wall;
b.	There is a sharp viewing angle up from this confined courtyard space at ground level, and the view up to the top parts of the proposed boundary wall is not a realistic experience from this space; and
c.	It is only a matter of time until 11 Gertrude Street is developed with infill of its rear yard, and one should not defend the existing amenity of this space, when it is such a strong candidate for redevelopment.
88	These submissions are supported by the evidence of Mr McGurn.  He opines that the proposed development will present a reasonable level of visual bulk to the rear courtyard of the adjoining property at 11 Gertrude Street.  In forming this view, he has regard to the zoning of the land within the Commercial 1 Zone, the mixed residential and commercial use of the land in the past, the poor amenity outcomes previously and currently experienced in this courtyard, and the nature of development in an activity centre context such as this.  He also holds the view that additional setbacks at the upper levels will likely produce very limited amenity benefits for the ground level courtyard space.
89	In contrast to the submissions of Mr Townshend and the evidence of Mr McGurn, we consider that an interface that will present a four storey high sheer wall to this adjacent ground level area of secluded private open space, represents an unreasonable level of visual bulk in this context.  While we agree that this area should experience a lower level of amenity given its location within a Commercial 1 Zone and an activity centre, we also note that it is the ground level area of secluded private open space to an individually significant heritage property, that was constructed in 1859.  As such, the form of development that is now proposed for the review site was not a reasonable expectation when this area of secluded private open space was created.  Further, we consider that the heritage qualities of this adjacent dwelling are such that it would likely limit the future development of that site at 11 Gertrude Street.  
90	For these reasons we consider that a reduced extent of on boundary construction should occur adjacent to the area of secluded private open space at 11 Gertrude Street.  In our view, the on boundary wall should extend no higher than three storeys, adjacent to and north of the adjacent area of secluded private open space.  At this height, the wall on boundary will be a similar height to the existing boundary walls that are common in this neighbourhood, including the wall on boundary between 11 and 13 Gertrude Street.  It will also be similar in height to the historical boundary wall that would have existed on the review site as part of Granite Terrace, prior to the construction of the existing dwelling at 11 Gertrude Street.  That is, the ground level courtyard at 11 Gertrude Terrace, was originally designed to sit aside a wall on the common boundary with the review site, that is roughly the equivalent height of a contemporary three storey building.
91	Above the three storey wall on boundary, the fourth storey should be setback 1.0 metre from the boundary, and the fifth storey setback 2.0 metres.  While these are narrow setbacks, they are sufficient to break the apparent height of the on boundary wall.  These setbacks are also sufficient to reduce the overall visual impact of the wall, given the narrow proportions of the area of secluded private open space at 11 Gertrude Street, and the steep viewing angle from this space.  Finally, these setbacks need only be applied along the part of the eastern boundary of the review site that is north of the southern boundary of the area of secluded private open space at 11 Gertrude Street, as it is a setback along this part of the boundary that will contribute to an improved outlook, reduced bulk and improved solar access to the adjacent property.  However, in the event that the architects consider that a consistent setback at each level along the eastern elevation is appropriate, that would also constitute an acceptable outcome.  We will provide for these setbacks by way of permit condition.
92	We set out our findings in relation to other matters relating to off-site amenity impacts that arose during the course of the hearing as follows.
a.	We do not consider that unreasonable visual bulk impacts will be caused to the residential properties to the north at Comfort Apartments Royal Gardens, and to the west at Royal Terrace.  In each of these cases, an unreasonable level of visual bulk is avoided by the generous separation distance between viewing locations and the proposed building.  To the north, a separation distance of around 10.5 to 12.5 metres is provided by Marion Lane and the setback siting of the serviced apartments, behind an area for vehicle circulation.  To the west, a separation distance of around 11.7 to 12.7 metres is provided by Royal Lane and the garages at the rear of Royal Terrace.  At these distances, a building of five storeys in scale in an activity centre context would not result in an unreasonable level of visual bulk.
b.	We find that the extent of additional shadowing that is proposed to be caused to the area of secluded private open space at 11 Gertrude Street at the equinox is reasonable and appropriate for this activity centre context.  The shallow diagrams prepared demonstrate that an additional shadow will only occur at 1:00pm at the equinox, to an area of 7.0 square metres. We consider this to be a reasonable amount of shadowing impact to an area of ground level secluded private open space in the Commercial 1 Zone and an activity centre.  However, we also anticipate that this extent of additional shadowing will be further reduced, by the changes we have required above in order to reduce the extent of visual bulk caused to this ground level area of secluded private open space.
c.	We are not persuaded by the submissions of Ms Wolf that the extent of overshadowing to the skylights in the roof of 11 Gertrude Street is unreasonable.  These skylights will continue to provide daylight to the relevant parts of the affected dwelling, even if they are overshadowed for part of the afternoon at the equinox.  Even in a pristine residential environment, where a higher level of amenity expectations prevail, overshadowing of skylights is not sought to be prevented or limited in any way by the relevant ResCode standards.  We do not consider that such overshadowing should be sought to be avoided in this activity centre context, where a lower level of residential amenity is anticipated.
d.	We are not persuaded that the extent of overlooking that would be caused to the rear yards of the dwellings within Royal Terrace, is unreasonable or inappropriate. We make this finding as a minimum separation distance of around 11.7 to 12.7 metres is provided between the first floor west facing windows, and the western edge of the carports/garages at the rear of Royal Terrace.  Given the angles involved, and the increased separation distances to the terraces and windows on the upper levels of the proposed building on the review site, the minimum viewing distance will be in excess of 11.7 metres.  As such, no unreasonable levels of overlooking will be caused to the areas of secluded private open space at Royal Terrace.
e.	There are no windows in the ground, first, second and third floors that are proposed to face east.  While two windows are proposed in the fourth floor, these are to bathrooms, and are screened by hit and miss brick construction.  As such, no unreasonable level of overlooking will be caused to the residential properties to the east of the review site.  We continue to hold this view even if the required third floor eastern boundary setback, as explained above, creates the opportunity for glazing to be inserted at this level that is also screened by hit and miss brickwork.
f.	While it was not raised by the parties during the course of the hearing, we note that there is no potential overlooking from the ground floor of the proposed building to the properties to the north of the review site, and that the floors located above ground level are setback a minimum of 10.5 metres from the Comfort Apartments Royal Gardens buildings located on the northern side of Marion Lane.  As such, given this separation distance, no unreasonable overlooking will be caused to these nearby residential properties.
93	For these reasons we find, subject to a change to the height of the boundary wall to be constructed adjacent to the area of secluded private open space at 11 Gertrude Street, and the setbacks above that boundary wall, that no unreasonable off-site amenity impacts will be caused to any of the residential properties.
Is an appropriate level of internal amenity achieved for the one apartment?
94	None of the parties that oppose the grant of a permit, raise any concerns in relation to the likely future standard of internal amenity to be provided to the one apartment that is located on the top floor of the proposed building. Following our own assessment, we also consider that this proposed apartment will be provided with a high level of internal amenity.  We make this finding having regard to the sizes of the individual rooms, their ability to receive appropriate levels of daylight and solar access, the extent of secluded private open space that is provided and the likely level of amenity to be enjoyed by these spaces, and the convenient access that is provided to the basement areas of car parking and storage.
Does the proposal appropriately provide for car parking and traffic movements?
95	The proposed development of the review site comprises the following uses, which generate the following demand for car parking under Clause 52.06 of the Yarra Planning Scheme, and which are proposed to be provided with the following rates of car parking on the review site.

Use	Rate of car parking required	Amount of car parking required	No of car spaces proposed	
Shops	3.5 spaces per 100 square metres	8	3	
Food and drink premises	3.5 spaces per 100 square metres	4	1	
Art gallery	0.3 spaces per patron	13	1	
Office 	3.0 spaces per 100 square metres	49	10	
Dwelling	2 spaces per dwelling	2	2	
Total		76	17	

96	Car parking and traffic evidence was provided by Mr Hunt.  It is his evidence that the extent of car parking proposed for the shops, the food and drink premises and the Art Gallery are appropriate, as it provides for the long-term car parking demand created by the staff to these premises, that may drive to the review site.  However, it is the evidence of Mr Hunt that some of the staff to these uses will also be able to catch public transport to the review site, noting the excellent level of access that the review site enjoys to a wide range of public transport options.  It is also the evidence of Mr Hunt that the short term car parking demand created by visitors or customers to these uses should not be provided on site, and indeed cannot be provided on site due to the use of a car lift to provide access to the basement car parking on site.  Mr Hunt opines that many of the customers to these uses will be able to walk to the review site from the surrounding neighbourhood, or catch public transport to the site again using the wide range of public transport options that is available in this locality.  We are persuaded by this evidence, and find that the reduced level of car parking that is proposed for these uses on the review site is appropriate for these reasons as set out in Mr Hunt’s evidence.
97	It is also the evidence of Mr Hunt that the reduced level of car parking provided to the office spaces is appropriate, given that staff and visitors to the office will be able to access the site using the wide variety of public transport options that are accessible to the review site.  We note that this wide range of public transport options includes tram routes along Gertrude Street, Nicholson Street, Victoria Parade and Brunswick Street, as well as the short walk to the northern entrance to Parliament Railway Station, and the many bus routes that operate along Victoria Parade.  We agree with and adopt the evidence of Mr Hunt that this is a location where office workers should be strongly encouraged to utilise the wide plethora of public transport options that are available to access the review site, rather than drive to the review site and park their vehicles on site.  We also note that this approach will limit the extent of vehicle movements in this neighbourhood, and in particular along Royal Lane and Marion Lane, which is a desired outcome of providing a reduced level of car parking on the review site.
98	The proposed car parking on the review site is accessed via a car lift which is indented off Marion Lane. It is the evidence of Mr Hunt that the proposed development of the review site will generate an increase of up to 34 vehicle movements per day in Marion Lane, and 28 vehicle movements per day in Royal Lane.  This will equate to an increase of up to 5 vehicle movements per hour, or one additional vehicle movement every 12 minutes. Mr Hunt has recorded the existing level of vehicle movements in both Marion Lane and Royal Lane, the impact of the additional vehicle movements to both of these lane ways, as well as the delay and queue times that may occur to the car lift that provides access to the two basement levels on the review site.  We accept the evidence of Mr Hunt, for the reasons set out in his evidence, that the proposed development will not generate a level of additional traffic in these two adjacent laneways, or a level of queuing for the basement lift, that will impact unreasonably the existing traffic conditions in both Marion Lane and Royal Lane.
99	In respect of the other traffic related matters raised by the parties, we record the following findings and reasons.
a.	We are not persuaded that the width of the trafficable road and footpath widths within Royal Lane are so constrained so that they should limit the future development of the review site, beyond the limited level of development that is proposed in the plans that are before us.  As detailed in the analysis set out above, it is the evidence of Mr Hunt that the proposed development of the review site will generate very low levels of additional traffic to both Marion Lane and Royal Lane.  It is also evident that the majority of the additional pedestrian movements to and from the site will occur via the frontage to Gertrude Street, with there also being an alternative access available to the proposed Art Gallery from Royal Lane.  Given the limited extent of pedestrian and vehicle movements we anticipate to occur along Royal Lane, we are not persuaded that the proportions of that Lane are unsuitable for the scale of the proposal that is before us.
b.	We are also not persuaded that the indented nature of the entry off Marion Lane to the basement car lift would provide for an unreasonable safety environment for pedestrians within Marion Lane.  All vehicles will be entering and exiting the site in a forward direction, and the indented accessway will provide for an improved level of surveillance for vehicles when exiting the site of any pedestrians within Marion Lane.  Further, we consider that this indented area will be provided with an appropriate level of surveillance, both from the upper levels within the proposed development on the review site, but also from the Comfort Apartments Royal Gardens located on the opposite side of Marion Lane.  We are satisfied that this design will therefore appropriately limit safety issues for pedestrians along Marion Lane.
c.	We are not persuaded that the proposed levels of increased traffic along Marion Lane and Royal Lane will impact the pedestrian use of these spaces.  We acknowledge the submissions of a number of Respondents, such as Mr Francis, that Royal Lane is well used by pedestrians, including those from the Comfort Apartments Royal Gardens.  We note the observations of Mr Hunt that these pedestrians currently walk down the middle of Royal Lane, and then step onto the narrow footpaths when vehicles approach.  We consider that this existing pattern of pedestrian movement can continue to occur in a safe manner with the proposed development of the review site, as the extent of additional traffic from the proposed development of the review site is extremely low, peaking at one additional vehicle every 12 minutes at peak hour.
d.	We accept the evidence of Mr Hunt that, given the low amount of additional traffic, and the low speed environment in Royal Lane and Marion Lane, that the provision of a splay at the intersection of these two laneways is not necessary from a traffic and pedestrian safety viewpoint.  We also note that Council’s traffic engineers have not identified the need for such a splay, a view which we afford weight to given their own expertise, local knowledge and independence in their assessment.
e.	We are not concerned with the potential for 10 weekly collections of waste from the review site, as identified in the Waste Management Plan that was lodged during the course of the planning permit application.  We consider that in an activity centre location such as this, regular commercial traffic movements, including by loading and waste vehicles, must be expected.  We note that a permit condition as drafted by Council requires endorsement of a Waste Management Plan, which will restrict the hours of waste collection, noting the proximity of nearby dwellings and the potential amenity impacts.  On this basis, we consider that the concern raised by Ms Acreman regarding the impact of reversing beepers on residential amenity can be addressed by this control on collection hours through the Waste Management Plan.  On this point we note that the swept path diagrams contained in the Waste Management Plan demonstrate that waste collection vehicles will travel in a forward direction along both Royal Lane and Marion Lane, and only reverse for a short distance into the vehicle entrance to the review site.
100	For these reasons we find that the proposed development appropriately provides for car parking and traffic movements.
Are there any other issues?
101	A number of other matters were also raised during the course of the hearing, including the following.
Construction impacts
102	While a number of Respondents raised concerns with the potential impacts of construction activity on the review site, Mr Anthony provided the most comprehensive submission addressing this issue, and the potential impacts on the use and operation of Comfort Apartments Royal Gardens.  We agree that there is a significant potential for construction activity on the review site to impact this existing short stay accommodation.  However, the answer does not lie in refusing to grant a planning permit for a proposal such as this, but rather in ensuring that construction impacts are adequately controlled.  We note that the Yarra City Council has drafted a comprehensive set of permit conditions that are intended to achieve such an outcome.  We consider that the implementation of, and compliance with, these permit conditions will be sufficient in order to appropriately address the concerns raised by Mr Anthony, and other Respondents.
Requirements of the Environment Protection and Biodiversity Conservation Act 1999
103	We note that given the review site’s location within the declared world heritage environs of the REB and Carlton Gardens, that a referral to the Minister responsible for the Environment Protection and Biodiversity Conservation Act 1999 is required.  We understand that such a referral was previously made, and then withdrawn.  
104	Our decision making task needs to occur independently of a referral and subsequent process under the Environment Protection and Biodiversity Conservation Act 1999.  That is, we cannot foreshadow what the likely outcome of such a referral may be, nor do we intend to influence in any way the potential or likely outcome of such a referral.  Our task is to make a decision in accordance with the Planning and Environment Act 1987, and by guided in our decision making task by the content of the Yarra Planning Scheme, and other relevant documents.  
105	Therefore, while we note the submissions of Ms O’Brien and others that a subsequent process needs to occur in accordance with the Environment Protection and Biodiversity Conservation Act 1999, that does not influence the decision making task that is before us.
Net community benefit
106	Our ultimate task as a decision maker under the Planning and Environment Act 1987, and the Yarra Planning Scheme, is to determine whether a proposal achieves a net community benefit.  This is in accordance with Clause 71.02 of the Yarra Planning Scheme, which sets out the following.
Integrated decision making 
Society has various needs and expectations such as land for settlement, protection of the environment, economic wellbeing, various social needs, proper management of resources and infrastructure. Planning aims to meet these needs and expectations by addressing aspects of economic, environmental and social wellbeing affected by land use and development. 
Planning and responsible authorities should endeavour to integrate the range of planning policies relevant to the issues to be determined and balance conflicting objectives in favour of net community benefit and sustainable development for the benefit of present and future generations.
107	The application of a net community benefit analysis in a decision such as this was explored by His Honour Justice Osborne of the Victorian Supreme Court in the decision of Knox City Council v Tulcany Pty Ltd [2004] VSC 375.  The following extracts are from that decision.
The statement that the present outcome "might not be ideal" does not demonstrate an error in law. The planning scheme does not require an ideal outcome as a pre-requisite to a permit. If it did, very few, if any, permits for development would ever be granted and there would be difficult differences of opinion as to whether the outcomes were in fact ideal. The Tribunal is entitled to grant a permit where it is satisfied that the permit will result in a reasonably acceptable outcome having regard to the matters relevant to its decision under the planning scheme.
108	And further that:
Reference to the State and Local Planning Policy Frameworks demonstrates that a proposal may potentially be favoured by some policy considerations but opposed by others. In the present case the proposal is favoured by policies relating to housing diversity and social needs to which I shall shortly return. The goal of the State Planning Policy Framework is expressly stated in terms that recognised decision makers must address the question of whether outcomes are acceptable in terms of "net community benefit". Clause 11.02 provides:
"The State Planning Policy Framework seeks to ensure that the objectives of planning in Victoria (as set out in Section 4 of the Planning and Environment Act 1987) are fostered through appropriate land use and development planning policies and practices which integrate relevant environmental, social and economic factors in the interests of net community benefit and sustainable development." (My emphasis)
The concept of net community benefit is not one of ideal outcomes, but of outcomes which result in a net benefit to the community assessed within a policy framework by reference to both their benefits and disbenefits. 
109	The application of a net community benefit analysis in a dispute involving a heritage assessment was also considered in the decisions of 1045 Burke Rd Pty Ltd v Boroondara CC & Ors [2013] VCAT 1108 and Boroondara City Council v 1045 Burke Road Pty Ltd & Ors [2015] VSCA 27.  We have had regard to both of these decisions in our assessment of this proposal.
110	The principle of a net community benefit analysis presupposes that a development proposal will have some aspects that can be properly considered as a community benefit, and others that can rightly be described as a community disbenefit.  The mere presence of any community disbenefits does not mean that a planning permit should not be granted.  Rather, the task of a decision maker such as ourselves is to weigh the benefits and disbenefits, and determine whether a net community benefit is achieved.  That is, we need to determine whether the benefits outweigh the disbenefits, being guided by the Yarra Planning Scheme as to the weight to be placed on the various benefits and disbenefits that will be in play.
111	Quite unusually, in this case we find that we are mostly presented with benefits associated with the proposed development of the review site.  The proposed demolition of the existing building on the review site, which we regard as a blight on the existing Gertrude Street streetscape, is a substantial benefit.  The way that the proposed building has been designed to respond to the important views to the drum, dome, lantern and flagpole of the REB is a significant benefit, as is the manner in which it responds in a positive fashion to the more immediate heritage context.  The manner in which the proposed building for the review site achieves appropriate heritage and urban design outcomes, in a building that will be a striking and positive architectural inclusion in this important streetscape, is also a noteworthy benefit.  Given the alignment of these issues with the policy guidance for a site such as this as found in the Yarra Planning Scheme, we find that these benefits are weighty considerations.
112	Against this ledger of benefits, we struggle to find any real disbenefit associated with the proposed development of the review site.   To the extent that the proposed building would create an unreasonable level of visual bulk to the area of secluded private open space at 11 Gertrude Street, we have found it appropriate to address this concern with increased setbacks to the upper levels.  Further, to the extent that increased traffic along Marion and Royal Lanes will result from this proposal, we have found for the reasons set out above that they are at relatively low levels that will not cause any unreasonable traffic impacts on this locality.  Finally, while we acknowledge that there will be temporary impacts from the construction associated with the proposed building, these can be mitigated and controlled, and are a necessary product of replacing the existing blight of a building with a more modern and appropriate architectural insertion into this valued location.  For these reasons we find that the disbenefits that do exist, are not weighty considerations in a net community benefit analysis.
113	For these reasons it is our finding that there is no trade-off here between what urban consolidation and heritage policies are seeking to achieve, as we find that all relevant policy objectives are achieved by this proposal.  On this basis we must conclude that the proposal that is before us certainly achieves a net community benefit, and as such is worthy of the grant of a planning permit.
What conditions are appropriate?
114	A number of matters about permit conditions were raised by the parties.  With respect to those matters, other than those already addressed above, we summarise our conclusions as follows:
a.	We have deleted the components of Condition 1, that seek changes to the plans that the Council and Applicant agree have already been achieved by the plans that are now before us.
b.	We have also made the changes to Condition 6 that were suggested by the Applicant to set a performance based measure, and which were agreed to by the Council at the conclusion of the hearing.
c.	Finally, we will adopt the suggestion by the Applicant, and not opposed by other parties, to require the continued involvement of the current architects, or an alternative architect to the satisfaction of the Responsible Authority.  We consider that appropriate here given the high architectural merit of the proposal that is before us, which we are keen not to be lost through an amended plans process.
Conclusion
115	For the reasons given above, the decision of the responsible authority is set aside.  A permit is granted subject to conditions.

Michael Deidun		Lorina Nervegna	
Presiding Member		Member	

Appendix A – Permit Conditions

Permit Application No	PLN20/0566	
Land	1-9 Gertrude Street, Fitzroy	

What the permit allowS	
In accordance with the endorsed plans:
•	Use of the land for accommodation
•	Demolition of the existing buildings
•	To construct a building and construct or carry out works
•	To reduce the standard car parking requirement	

Conditions
1	Before the development starts, amended plans to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the plans will be endorsed and will then form part of the permit. The plans must be drawn to scale with dimensions and three copies must be provided. The plans must be generally in accordance with the plans prepared by Snohetta Architects, dated 01.07.2021 (Rev 4), but modified to show the following:
(a)	A 1.0 metre setback of level 3 from the portion of the eastern boundary of the review site that sits alongside, or north of, the ground level area of secluded private open space at 11 Gertrude Street.  If desired by the permit holder in order to maintain a certain architectural expression, it would be acceptable if the 1.0 metre eastern boundary setback of level 3 were applied to the entire eastern boundary;
(b)	A 2.0 metre setback of level 4 from the portion of the eastern boundary of the review site that sits alongside, or north of, the ground level area of secluded private open space at 11 Gertrude Street.  If desired by the permit holder in order to maintain a certain architectural expression, it would be acceptable if the 2.0 metre eastern boundary setback of level 4 were applied to the entire eastern boundary;
(c)	A 2.09 metre setback to levels 2 and 3 from the northern boundary of the review site;
(d)	The removal of the hit and miss brickwork (MA-04 Masonry Type 04) from the southern elevation at level 1, in order to fully reveal the glazing behind this brickwork;
(e)	The provision of hit and miss brickwork (MA-04 Masonry Type 04) and associated glazing to the eastern elevation of level 3, to the portion of this elevation that is setback from the boundary as a result of Condition 1(a) above;
(f)	A DDA compliant accessway to the toilet facilities at ground floor; 
(g)	Any proposed changes to on-street car-parking bays (including dimensions as per Australian Standards);
(h)	Bluestone pitcher along the Marion Lane laneway to be retained and or/reinstated to match existing as required;
(i)	Design changes to implement recommendations of the Sustainable Management Plan Condition No. 6 of this permit; 
(j)	Design changes to implement recommendations of the Acoustic Report Condition No. 10 of this permit; and
(k)	Design changes to implement recommendations of the Landscape Plan Condition No. 12 of this permit.
2	The development as shown on the endorsed plans must not be altered (unless the Yarra Planning Scheme specifies that a permit is not required) without the prior written consent of the Responsible Authority.
3	As part of the ongoing progress and development of the site, Snohetta Architects or an architectural firm to the satisfaction of the Responsible Authority must be engaged to:
(a)	oversee design and construction of the development; and
(b)	ensure the design quality and appearance of the development is realised as shown in the endorsed plans or otherwise to the satisfaction of the Responsible Authority.
4	Prior to the issue of a building permit, commencement of the development, or issue of a Statement of Compliance (whichever occurs first) the Development Infrastructure Levy and Community Infrastructure Levy must be paid to Yarra City Council in accordance with the approved Development Contributions Plan, or the Owner must enter into an agreement with Yarra City Council to pay the amount of the levy within a time specified in the agreement.
5	In conjunction with the submission of development plans under Condition 1, a Façade Strategy and Materials and Finishes Plan to the satisfaction of the Responsible Authority must be submitted to and be approved by the Responsible Authority.  When approved, the Façade Strategy and Materials and Finishes Plan will be endorsed and will then form part of this permit.  This must detail:
(a)	elevation drawings at a scale of 1:20 illustrating typical podium details, entries and doors, and utilities, including detailed design of all elevations; and 
(b)	a sample board and coloured drawings outlining colours, materials and finishes.
Sustainable Management Plan
6	Before the plans are endorsed, an amended Sustainable Management Plan to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the Sustainable Management Plan will be endorsed and will form part of this permit. The Sustainable Management Plan must be generally in accordance with the Sustainable Management Plan prepared by Ark Resources and dated 30 October 2020, but modified as follows: 
(a)	Assess the plans prepared by Snohetta Architects, dated 1 July 2021 (Rev 4) modified to reflect all design changes required under Condition 1 of this permit; and
(b)	Demonstrate achievement of the following performance standards:
i	Attain a 4 star Green Star standard based on the Design & As Built v1.3 rating tool;
ii	Attain a penthouse apartment NatHERS rating of 6.5 stars;
iii	Compliance with the BESS and Green Star daylight standards;
iv	Compliance with the energy efficiency requirements of the Better Apartment Design Standards; and
v	Compliance with the Urban Stormwater Best Practice Environmental Management Guidelines.
7	The provisions, recommendation and requirements of the plans and endorsed Sustainable Management Plan must be implemented and complied with to the satisfaction of the Responsible Authority.
Waste Management Plan
8	Before the development commences, an amended Waste Management Plan to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority.  When approved, the amended Waste Management Plan will be endorsed and will form part of this permit.  The amended Waste Management Plan must be generally in accordance with the Waste Management Plan prepared by Ratio Consultants and dated 30 October 2020, but modified to include:
(a)	All design changes required under Condition 1 of this permit;
9	The provisions, recommendations and requirements of the endorsed Waste Management Plan must be implemented and complied with at all times to the satisfaction of the Responsible Authority.
Acoustic Report
10	Before the development commences, an amended Acoustic Report to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority.  When approved, the amended Acoustic Report will be endorsed and will form part of this permit. The amended Acoustic Report must be generally in accordance with the Acoustic Report prepared by Acoustic Logic and dated 29 October 2020, but modified to include:
(a)	All design changes required under Condition 1 of this permit;
(b)	An updated report include noise limits specified in the Environment Protection Regulations under the Environment Protection Act 2017 and the incorporated Noise Protocol (Publication 1826.4, Environment Protection Authority, May 2021) as may be amended from time to time. If it is still not possible to obtain typical background noise levels, then Zoning Levels can be used as the noise limits;
(c)	A statement added to the report requiring the mechanical plant (including carpark gate, car lift and substation), once designed, be reviewed by a suitably qualified acoustic consultant to ensure compliance with the noise limits specified in the Environment Protection Regulations under the Environment Protection Act 2017 and the incorporated Noise Protocol (Publication 1826.4, Environment Protection Authority, May 2021) as may be amended from time to time; and
(d)	The limits on garbage collection hours be written as an absolute requirement (i.e. remove the word “generally”), with the hours reflecting the EPA 1254 Guidelines; 7 am to 8 pm Monday to Saturday and 9 am to 8 pm Sundays and public holidays, if there are two or more collections per week.
11	The provisions, recommendations and requirements of the endorsed Acoustic Report must be implemented and complied with to the satisfaction of the Responsible Authority.
Landscape Plan
12	Before the development commences, an amended Landscape Plan to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority.  When approved, the amended Landscape Plan will be endorsed and will form part of this permit.  The amended Landscape Plan must be generally in accordance with the Landscape Plan prepared by Snohetta Architects and dated 29 September 2020, but modified to include (or show):
(a)	All design changes required under Condition 1 of this permit;
(b)	Planting beds to be 450mm deep and not 300mm (to allow greater success for the proposed planters); 
(c)	Any mulch used on the higher levels to consist of a wind-proof material; 
(d)	A detailed planting plan including a plant scheduled that includes botanical and common names, size at maturity (height and width), pot size and number of trees. Trees and plants should be shown at mature size on the plan;
(e)	None of the plants specified are listed on the DELWP advisory list of weeds; and
(f)	Information around ongoing maintenance procedures; 
13	Before the building is occupied, or by such later date as approved in writing by the Responsible Authority, the landscaping works shown on the endorsed Landscape Plan must be carried out and completed to the satisfaction of the Responsible Authority.  The landscaping shown on the endorsed Landscape Plan must be maintained by:
(a)	implementing and complying with the provisions, recommendations and requirements of the endorsed Landscape Plan;
(b)	not using the areas set aside on the endorsed Landscape Plan for landscaping for any other purpose; and
(c)	replacing any dead, diseased, dying or damaged plants,
to the satisfaction of the Responsible Authority.
Tree Management Plan
14	Before the development commences, a Tree Management Plan to the satisfaction of the Responsible Authority must be prepared by a suitably qualified Arborist and must be submitted to and approved by the Responsible Authority.  When approved the Tree Management Plan will be endorsed and will form part of this permit.  The Tree Management Plan must make recommendations for the protection and preservation of the trees on the Gertrude Street footpath in accordance with AS4970, as well as a robust TPZ fencing with appropriate signage, including: 
(a)	pre-construction; 
(b)	during construction; and 
(c)	post construction;
(d)	the provision of any barriers; 
(e)	any pruning necessary; and 
(f)	watering and maintenance regimes, 
to the satisfaction of the Responsible Authority. 
15	Before the development commences, or by such later date as approved in writing by the Responsible Authority, the permit holder must provide a bond to the Responsible Authority for the existing trees on the Gertrude Street footpath, in proximity of the site. The bond:
(a)	is to be to the total value of the $15,000 for all trees;
(b)	must be provided in a manner, and on terms, to the satisfaction of the Responsible Authority;
(c)	may be held by the Responsible Authority until the buildings and works are completed to the satisfaction of the Responsible Authority; and
(d)	may be applied by the Responsible Authority to allow for any replacement or maintenance of plantings. 
Once the buildings and works are completed to the satisfaction of the Responsible Authority, any portion of the bond which has not been applied by the Responsible Authority will be refunded to the permit holder.
16	The provisions, recommendations and requirements of the endorsed Tree Management Plan must be complied with and implemented to the satisfaction of the Responsible Authority.
Green Travel Plan
17	Before the building is occupied, a Green Travel Plan to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority.  When approved, the Green Travel plan will be endorsed and will form part of this permit.  The Green Travel Plan must include, but not be limited to, the following:
(a)	All design changes required under Condition 1 of this permit;
(b)	Performance targets and monitoring and reporting components; 
(c)	Description of the location in the context of alternative modes of transport;
(d)	Employee welcome packs (e.g. provision of Myki/transport ticketing);
(e)	Sustainable transport goals linked to measurable targets, performance indicators and monitoring timeframes;
(f)	Designated ‘manager’ or ‘champion’ responsible for co-ordination and implementation;
(g)	Details of bicycle parking and bicycle routes
(h)	Details of Green Travel funding and management responsibilities;
(i)	Types of bicycle storage devices proposed to be used for employee and visitor spaces (i.e. hanging or floor mounted spaces);
(j)	Security arrangements to access the employee bicycle storage spaces;
(k)	Signage and wayfinding information for bicycle facilities and pedestrians pursuant to Australian Standard AS2890.3; and
(l)	Provisions for the GTP to be updated not less than every five years.
18	The provisions, recommendations and requirements of the endorsed Green Travel Plan must be implemented and complied with to the satisfaction of the Responsible Authority. 
Art Gallery Management Plan
19	Before the art gallery use commences, an Art Gallery Management Plan to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority.  When approved, the Art Gallery Management Plan will be endorsed and will form part of this permit.  The Art Gallery Management Plan must include, but not be limited to, the following:
(a)	Details of how DDA complaint access to the art gallery will be managed, including any security arrangements; and, 
(b)	Details of how public access to the shared toilet facilities will be managed, including any security arrangements. 
20	The provisions, recommendations and requirements of the endorsed Art Gallery Management Plan must be implemented and complied with to the satisfaction of the Responsible Authority. 
General
21	The use and development must comply at all times with the noise limits specified in the Environment Protection Regulations under the Environment Protection Act 2017 and the incorporated Noise Protocol (Publication 1826.4, Environment Protection Authority, May 2021) as may be amended from time to time.
22	Before the building is occupied, or by such later date as approved in writing by the Responsible Authority, all new on-boundary walls must be cleaned and finished to the satisfaction of the Responsible Authority.
23	Before the building is occupied, any wall located on a boundary facing public property must be treated with a graffiti proof finish to the satisfaction of the Responsible Authority.
24	All buildings and works must be maintained in good order and appearance to the satisfaction of the Responsible Authority.
25	Before the building is occupied, or by such later date as approved in writing by the Responsible Authority, all external lighting capable of illuminating access to the pedestrian entries and car parking area must be provided. Lighting must be: 
(a)	located;
(b)	directed;
(c)	shielded; and 
(d)	of limited intensity.
to the satisfaction of the Responsible Authority.
26	The area set aside for the parking of vehicles, together with the associated access lanes as delineated on the endorsed plan must:
(a)	be designed, provided and completed to the satisfaction of the Responsible Authority;
(b)	thereafter be maintained to the satisfaction of the Responsible Authority;
(c)	be made available for such use at all times and not used for any other purpose;
(d)	be properly formed to such levels that it can be used in accordance with the endorsed plan; and
(e)	be drained and sealed with an all-weather seal coat;
all to the satisfaction of the Responsible Authority.
27	Before the building is occupied, or by such later date as approved in writing by the Responsible Authority, the car lift must be installed in accordance with the manufacturer’s specifications by a suitably qualified person. The car lift must be maintained thereafter to the satisfaction of the Responsible Authority.
28	Before the building is occupied, or by such later date as approved in writing by the Responsible Authority, the redundant vehicular crossings on Gertrude Street and Royal Lane must be demolished and re-instated as standard footpath and kerb and channel:
(a)	at the permit holder's cost; and
(b)	to the satisfaction of the Responsible Authority
29	Before the building is occupied, or by such later date as approved in writing by the Responsible Authority, the footpath along the property’s Gertrude Street frontage must be stripped and re-sheeted with a cross-fall of 1:40 or unless otherwise specified by Council;
(a)	at the permit holder’s cost; and
(b)	to the satisfaction of the Responsible Authority. 
30	Prior to the completion of the development, subject to the relevant authority’s consent, the relocation of any service poles, street line markings, car parking sensors, service structures, fire hydrants or service pits necessary to facilitate the development must be undertaken:
(a)	at the permit holder's cost; and
(b)	to the satisfaction of the Responsible Authority. 
31	Before the building is occupied, or by such later date as approved in writing by the Responsible Authority, any damage to Council infrastructure resulting from the development must be reinstated (including the full re-sheeting of the footpath at the front of the property if required by Council):
(a)	at the permit holder's cost; and
(b)	to the satisfaction of the Responsible Authority. 
32	Before the building is occupied, or by such later date as approved in writing by the Responsible Authority, bike racks must be installed: 
(a)	at the permit holder’s cost; and
(b)	in a location and manner, 
to the satisfaction of the Responsible Authority.
33	Delivery and collection of goods to and from the land may only occur between 7am and 10pm Monday to Saturday, or after 9am on a Sunday or public holiday except for those allowed under any relevant local law.
34	The amenity of the area must not be detrimentally affected by the development, including through:
(a)	the transport of materials, goods or commodities to or from land;
(b)	the appearance of any buildings, works or materials;
(c)	the emission of noise, artificial light, vibration, smell, fumes, smoke, vapour, steam, soot, ash, dust, waste water, waste products, grit or oil, or
(d)	the presence of vermin.
to the satisfaction of the Responsible Authority.
Construction Management Plan
35	Before the development commences, a Construction Management Plan to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority.  When approved, the plan will be endorsed and will form part of this permit.  The plan must provide for (as appropriate):
(a)	a pre-conditions survey (dilapidation report) of the land and all adjacent Council roads frontages and nearby road infrastructure;
(b)	works necessary to protect road and other infrastructure;
(c)	remediation of any damage to road and other infrastructure; 
(d)	containment of dust, dirt and mud within the land and method and frequency of clean up procedures to prevent the accumulation of dust, dirt and mud outside the land,
(e)	facilities for vehicle washing, which must be located on the land, as far as practical;
(f)	the location of loading zones, site sheds, materials, cranes and crane/hoisting zones, gantries and any other construction related items or equipment to be located in any street;
(g)	site security;
(h)	management of any environmental hazards including, but not limited to: 
i	contaminated soil;
ii	materials and waste;
iii	dust;
iv	stormwater contamination from run-off and wash-waters; 
v	sediment from the land on roads; 
vi	washing of concrete trucks and other vehicles and machinery; and
vii	spillage from refuelling cranes and other vehicles and machinery;
(i)	the construction program;
(j)	preferred arrangements for trucks delivering to the land, including delivery and unloading points and expected duration and frequency;
(k)	parking facilities for construction workers;
(l)	measures to ensure that all work on the land will be carried out in accordance with the Construction Management Plan;
(m)	an outline of requests to occupy public footpaths or roads, or anticipated disruptions to local services; 
(n)	an emergency contact that is available for 24 hours per day for residents and the Responsible Authority in the event of relevant queries or problems experienced; 
(o)	the provision of a traffic management plan to comply with provisions of AS 1742.3-2002 Manual of uniform traffic control devices - Part 3: Traffic control devices for works on roads;
If required, the Construction Management Plan may be approved in stages. Construction of each stage must not commence until a Construction Management Plan has been endorsed for that stage, to the satisfaction of the Responsible Authority. 
36	During the construction:
(a)	any stormwater discharged into the stormwater drainage system must be in compliance with Environment Protection Authority guidelines;
(b)	stormwater drainage system protection measures must be installed as required to ensure that no solid waste, sediment, sand, soil, clay or stones from the land enters the stormwater drainage system;
(c)	vehicle borne material must not accumulate on the roads abutting the land;
(d)	the cleaning of machinery and equipment must take place on the land and not on adjacent footpaths or roads; and
(e)	all litter (including items such as cement bags, food packaging and plastic strapping) must be disposed of responsibly.
37	The provisions, recommendations and requirements of the endorsed Construction Management Plan must be implemented and complied with to the satisfaction of the Responsible Authority.
38	The development, once commenced, must be completed to the satisfaction of the Responsible Authority.
39	Except with the prior written consent of the Responsible Authority, demolition or construction works must not be carried out:
(a)	Monday-Friday (excluding public holidays) before 7 am or after 6 pm; 
(b)	Saturdays and public holidays (other than ANZAC Day, Christmas Day and Good Friday) before 9 am or after 3 pm;
(c)	Sundays, ANZAC Day, Christmas Day and Good Friday at any time.
40	This permit as it relates to use will expire if the use does not commence within two (2) years of the completion of the development hereby permitted.
In accordance with section 69 of the Planning and Environment Act 1987, an application may be submitted to the responsible authority for an extension of the period referred to in this condition.
41	This permit as it relates to development (buildings and works) will expire if one of the following circumstances applies:
(a)	The development is not started within two (2) years of the issue date of this permit.
(b)	The development is not completed within four (4) years of the issue date of this permit.
In accordance with section 69 of the Planning and Environment Act 1987, an application may be submitted to the responsible authority for an extension of the periods referred to in this condition.
– End of conditions –