VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment LIST	vcat reference No. P11380/2021
Permit Application no.MV/880/2020 	
CATCHWORDS	
Moonee Valley Planning Scheme, Section 80 Planning and Environment Act 1987, Activity Centre Zone, setback to street, guideline, visual bulk, overshadowing, street activation.     	

Applicant	Hamton Hostplus JVMV Pty Ltd	

Responsible Authority	Moonee Valley City Council	
Respondents	S Ambrogio on behalf of Save Moonee Ponds Inc and M Holtz	
Referral Authority	Head, Transport for Victoria	

SUBJECT LAND	33 Dean Street, Moonee Ponds (Moonee Valley Racecourse)

HEARING TYPE	Hearing	

DATE OF HEARING	28 March 2022	

DATE OF ORDER	26 April 2022	

CITATION	Hamton Hostplus JVMV Pty Ltd v Moonee Valley CC [2022] VCAT 443   	

Order
Amend permit application 
1	Pursuant to section 127 and clause 64 of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998, the permit application is amended by substituting for the permit application plans, the following plans filed with the Tribunal:
•	Prepared by:	Rothe Lowman (project No. 217158)	
•	Drawing numbers:	TP00.01, TP00.02, TP00.03, TP01.00, TP.01.03, TP.01.05, TP.01.06, TP.01.07, TP01.15, TP.02.01, TP02.02 and TP03.02; all revision B
TP01.01, TP01.02, TP02.01A, TP02.50, TP02.51 and TP03.01; all revision A
TP01.04 and TP01.11 – TP01.14; all revision C.	
•	Dated:	10 February 2022	
Conditions changed
2	In application P11380/2021 the decision of the responsible authority is varied.  
3	The Tribunal directs that planning permit MV/880/2020 must contain the conditions set out in planning permit MV/880/2020 issued by the responsible authority on 24 August 2021 with the following modifications:
(a)	The preamble to condition 1 is amended to read:
1.	Before the development starts, amended plans must be submitted to and approved to the satisfaction of the Responsible Authority. The amended plans must be drawn to scale and an electronic copy must be provided. The plans must be generally in accordance with plans prepared by Rothe Lowman Architects, dated 10 February 2022, (Project No. 217158: drawings TP00.01, TP00.02, TP00.03, TP01.00, TP.01.03, TP.01.05, TP.01.06, TP.01.07, TP01.15, TP.02.01, TP02.02 and TP03.02; all revision B, TP01.01, TP01.02, TP02.01A, TP02.50, TP02.51 and TP03.01; all revision A, TP01.04, TP01.11 – TP01.14; all revision C) but modified to show:
(b)	Condition 1o) is deleted.
4	The responsible authority is directed to issue a modified planning permit in accordance with this order. 

Alison Glynn
Member			
Appearances
For Hamton Hostplus JVMV Pty Ltd	Mr Peter O’Farrell, barrister on instruction from Mr Shantanu Joshi of Norton Rose Fulbright Solicitors.	
For Moonee Valley City Council	Ms Lorraine Stupak, town planner of LS Planning Pty Ltd	
For Head, Transport for Victoria	No appearance	
For Save Moonee Ponds Limited	Ms Sarah Ambrogio 	
For Mr Michael Holtz	No appearance.	

Information
Description of proposal	Construction of a 10 storey building to accommodate dwellings, office and food and drink premises.  A permit has been granted and includes condition 1o) that directs the building be set back from Kenna Street five metres for its first 20 metres in height and a further five metres for building above this height.  	
Nature of proceeding	Application under section 80 of the Planning and Environment Act 1987 – to review the conditions contained in the permit.  Specifically the review seeks deletion of condition 1o).	
Planning scheme	Moonee Valley Planning Scheme	
Zone and overlays	Activity Centre Zone – Schedule 1 (ACZ1)
Heritage Overlay – Schedule 379 - (HO379)
Environmental Significance Overlay – Schedule 2 (ESO2)	
Permit requirements	Use of the land for a food and drink premises and office.  Buildings and works in ACZ1.	
Relevant scheme policies and provisions	Clauses 11, 15, 16, 17, 18, 37.08, 42.01, 65 and 71.02-3.	
Land description	The building forms part of a 7.7 hectare site that has formed part of the Moonee Valley Racecourse and is currently being redeveloped for mixed use.  It sits to the east of a near fully constructed three storey townhouse development and north of an extension to Kenna Street that already exists to the west of the racecourse land.	
Tribunal inspection	I inspected the edge of the site from McPherson Street and Kenna Street before the hearing on 27 March 2022.   	

Reasons
What is this proceeding about?
1	Moonee Valley City Council (the council) has granted a planning permit to Hamton Hostplus JVMV Pty Ltd (the applicant) for a 10 storey building to be used mostly as dwellings but includes ground floor offices and food and drink premises.  The permit was granted as a result of a decision made at a council meeting on 24 August 2021 at which the council determined to support an officer report to grant the permit subject to permit conditions.  In doing so the council determined to include two additional conditions to what the officers recommended.  The applicant has asked the Tribunal to review one of these conditions, condition 1o).  The applicant seeks this condition be deleted.
2	Condition 1o) requires the application plans to be amended to show:
1o)	The building to provide a setback from the southern boundary at Kenna street of at least 5 metres for the first 20 metres in height and a further 5 metre setback to building elements above 20 metres in height to comply with Clause 5.9-4 of Schedule 1 to the Activity Centre Zone.
3	Save Moonee Ponds Incorporated, along with Mr Holtz (the objectors) support the council’s position stating the condition is necessary to ensure that the building provides sufficient setback to Kenna Street, consistent with the guidelines contained within the Activity Centre Zone – Schedule 1 (ACZ1) provisions that apply to the land.
4	Prior to the hearing the applicant circulated amended plans for the permit that it says addresses any concerns that may arise with the deletion of condition 1o).  These plans include a 1.6 metre recess to offices facing Kenna Street (being the footpath interface) and a three metre setback to three levels above a height of 23 metres from the footpath level of Kenna Street.
5	Having substituted these plans at the request of the applicant, these are the plans by which I must assess whether condition 1o) is needed.  I must make this assessment against the relevant provisions of the Moonee Valley Planning Scheme (the planning scheme).  The most relevant of these are the ACZ1 provisions, along with relevant planning policy applying to the site.
6	From my review of submissions and evidence tabled, and my own review of the relevant provisions of the planning scheme I am satisfied that condition 1o) can be deleted.  While the building encroaches into the setback envelope sought in design guidelines within the ACZ1, I am satisfied the building in the plans before me provides a respectful interface to Kenna Street and does not result in any unreasonable amenity impacts.  I am also satisfied that the encroachment does not set a precedent for increased density on the site beyond what is already provided for in the planning provisions and existing permits applying to the land.  
7	I therefore have determined to delete condition 1o) set out in the council permit dated August 2021.  My reasons follow.
proceedural issue
8	Prior to the hearing of this matter the review applicant filed and served plans it would seek to be substituted as the application plans in accordance with the Tribunal Practice Note PNPE9 at the commencement of the Tribunal hearing.
9	At the commencement of the hearing no opposition was made by other parties to the substitution of the plans and I made oral direction that I would substitute the plans.  In making the oral direction I collectively referred to the plans as those prepared by Rothe Lowman, dated 10 February 2022.
10	In deliberating on the merits of the proceeding after the hearing, I identified a potential error in the plans.  This was that there were two TP0.02 plans, both dated 10 February 2022.  One was identified as revision B and shows landscape treatment to the south side of levels 6, 7 and 8 as well as to the north side of level 7.  The other plan is identified as revision C and does not show these landscape treatments on the south elevation, although other elevations indicate provision for landscaping on the southern elevation, in side view. 
11	By written order dated 29 March 2022 I directed the applicant to confirm if there was an error and, if so, which plan should be relied on and substituted.  
12	By email dated 30 March 2022 the applicant confirmed that it is TP02.02 – revision B that should be used, not revision C.  In this email the applicant confirmed an error had occurred in including both revision B and C in the plans circulated to all parties.
13	The 29 March 2022 order also allowed the responsible authority or any other party to file a written submission in response to the material provided by the applicant to that order.  By email dated 12 April 2022, Save Moonee Ponds Incorporated provided an email commenting on the merits of the design in both TP02.02 revision B and revision C. 
14	The response sought by the Tribunal in the interim order was simply to request the applicant confirm the correct plan to be relied upon given there were two elevation plans that all parties had received and based their submissions on, being the plans circulated prior to the hearing.  The submission dated 12 April 2022 made by Save Moonee Ponds Incorporated extended beyond the leave granted to make submission, which was simply to confirm if it agreed with the position of the applicant that an error had occurred and that the correct plan to rely on is revision B.  I have therefore not considered the additional information provided by the Save Moonee Ponds Incorporated about the merits of the revision B elevation, as set out in its email of 12 April 2022.
15	I also note, in relation to comments in the email of the Save Moonee Ponds Incorporated, that that when submissions were made at the merits hearing on 28 March 2022, both plans were before all parties at the hearing and it was open for any party to comment on any difference between the plans at the hearing and the detail of both TP02.02 revision B and C and indeed the merits and detail of vegetation on the façade as shown in revision B. 
16	Order 1 of this order reflects the oral order made at the commencement of the hearing to substitute the plans for those dated 10 February 2022, but without sheet TP02.02 revision C. 
what are the relevant issues?
17	The council and the objectors submit that condition 1o) is needed to ensure that the building provides an acceptable interface to Kenna Street.  They say that this is important so as to ensure:
•	The building does not overly dominate or enclose Kenna Street by means of visual bulk or shadow.
•	The building creates a consistent streetscape as sought by the ACZ1 provisions.
•	Proposed landscape treatment and active interface to Kenna Street is maintained.
•	The proposal does not establish a poor precedent for exceeding the building envelope provisions of the ACZ1 schedule.  
18	Objectors are also concerned that exceeding the setback requirements will ultimately lead to a greater density and number of dwellings incrementally across precinct 9 of the ACZ1 area.
19	To address these issues I firstly find it important to set out the context of the decision to be made.  I do this below and then assess the issues raised by the council and objectors in this context.
What is the decision making context?
20	As set out in its wording, the intention of condition 1o) is to require alteration to the approved building so that it has setbacks to Kenna Street that ‘comply with clause 5.9-4’ of the ACZ1.
21	Parties all concurred that in interpreting this condition:
a	Clause 5.9-4 of the ACZ1 is now clause 6.9-4 as a result of Amendment C207 to the Moonee Ponds Planning Scheme, introduced to the planning scheme on 28 January 2022.  It was also agreed that this amendment makes no other material change to the ACZ1 as it relates to precinct 9.
b	The relevant setback guideline set out in Table 4 of clause 6.9-4, as set out in figure 1 below, includes what appears to be an error in referencing building height requirements of clause 5.9-3.  It was agreed that statutory interpretation leads to a conclusion that the correct clause to be referred to is now 6.9-3.  

Figure 1 - extract from Table 4 to clause 6.9-4 of the ACZ1, as amended through Amendment C207.
22	There is also no dispute between parties that it was open for me to address Kenna Street as a public road and therefore a street to which the table applies.  This is noting a Tribunal determination for a previous proposal for this land (the 2020 decision).  The 2020 decision relates to a different proposal that included a different road layout abutting that proposed building.  In the 2020 decision, the Tribunal considered ‘the Kenna Street extension is a private road and the height and setback requirements’ in what was then Table 5 of Clause 5.9-4 ‘are not applicable’.
23	In the case before me, the applicant does not rely on a legal determination about whether Kenna Street is a public road or not, simply that it considers the interface, on its merits, is acceptable.  I agree that the issue before me is to address the merits.  The application plans refer to Kenna Street as a public road.  While not yet constructed, the intent of the proposal before me is for the building to abut what will become a public road.  I therefore find it relevant to consider the design guidelines of what is now clause 6.9-4 regardless of the current subdivision of the land.  
24	It is also worth noting that while the Tribunal in the 2020 decision considered the table to clause 6.9-4 was not applicable, it nevertheless made merits finding that ‘the construction of a sheer 50 metre high wall with minimal articulation and expansive building footprint limits landscaping along the north side of the street which reduces the amenity for pedestrians walking along this street.  We are also concerned about the extensive overshadowing of the roadway and future parkland and find this is an unacceptable design response for this site and balance of the overall precinct’.  
25	The decision of the Tribunal in 2020 related to a larger building across a larger site than what is before me.  As illustrated in diagrams to the 2020 decision, that proposal included a south facing sheer wall façade along a different road layout that extended along the north side of two Stone Pine trees that are protected through the Environmental Significance Overlay – Schedule 2 (ESO2) provisions.  
26	The matter before me has a building sitting to the west and north-west of the Stone Pine trees with only a 20 – 25 metre wide direct frontage to Kenna Street.  This facade extends to a height of 23 metres at the street edge.  The building then extends north and west around a private driveway and porte cochère.  Figures 2 and 3 below illustrate the interface to Kenna Street at street level and the overall volume proposed, relative to the 32 metre high preferred maximum building height requirement set out in clause 6.9-3 of the ACZ1.
 
Figure 2 - ground floor layout of proposal.  I have notated the alignment of the proposed Kenna Street road pavement to the south (bottom of image).

Figure 3 - overall building volume relative to 32 metre preferred maximum height requirement.  Diagram within the substituted plans.
27	The building, based on the substituted plans, includes a zero setback for six of the seven lower levels, with the street-edge level (lower ground) having a 1.6 metre recess to Kenna Street.  Levels 6, 7 and 8 are then setback 3.0 metres from Kenna Street.  
28	South of Kenna Street is other future development.  While the ACZ1 schedule indicates indicatively that this may be a park, I was advised that the park committed to in the ACZ1 has now been approved and constructed further south, opposite the Coat Street / McPherson Street intersection, and referred to as Tote Park.
29	To the west of the building I am considering, there are three storey townhouses currently under construction.  These include dwellings that face McPherson Street with a side street setback to Kenna Street of 1.6 metres and dwellings facing Kenna Street set back 2.7 metres.  Directly south of Kenna Street are approved townhouses with similar street setbacks.  The guideline in clause 6.9-4 for a five metre setback also applies to these sites where a lesser setback has already been approved and under construction.
30	The setback referred to in condition 1o) is a design guideline of clause 6.9-4 to the schedule to clause 37.08 (ACZ provisions).  Clause 37.08-6 states that a schedule to the zone may include requirements relating to a number of matters including building setbacks and building height.  Clause 37.08-9 sets out that in addition to general decision guidelines set out in clause 65 of the planning scheme, a responsible authority must consider as appropriate:
•	‘The Municipal Planning Strategy and Planning Policy Framework’,
•	‘The development framework plan set out in the schedule’ to the zone,
•	‘The land use and development objectives set out in the schedule’ to the zone,
•	‘Any requirements of the schedule’ to the zone, and
•	‘Any other decision guidelines specified in the schedule’ to the zone.
31	Relevant policy includes provisions within clauses 11, 15 and 16 of the planning scheme.  In particular there is an emphasis in the overarching policies of the planning scheme to direct growth to renewal areas where there is good access to services.  Managing building form, as sought by condition 1o) needs to be balanced against the delivery of such aspirations.
32	Requirements and guidelines within the ACZ1 include a development framework plan at clause 1.  This simply identifies the site as part of precinct 9.  Land use and development objectives are set out in clause 2.0 of the ACZ1 and relevantly include;
•	To encourage high quality architecture and urban design outcomes. 
•	To minimise overshadowing and wind impacts so as to contribute to a comfortable and safe public realm for pedestrians. 
•	To provide a continuous street wall edge and reduce the impact of building services on continuous active street frontages. 
33	Precinct 9 has a precinct map in which the site appears to be located in area 9B and has specific precinct objectives that relevantly include:
•	To encourage a street pattern, building design and land use mix that creates opportunities for street level activation, passive surveillance of the street and changing streetscapes. 
•	To create new and vibrant public spaces for the community.
•	To ensure a high standard of building design that displays dwelling diversity, permeability, flexibility, site responsiveness and environmentally sustainability.
34	A number of precinct requirements are then set out in clause 6.9-3.  The setback referred to in condition 1o), however, is set out in clause 6.9-4 that is headed ‘Precinct guidelines’.  This clause states that ‘the following guidelines should be met’.  The first of these guidelines is ‘setbacks set out in table 4’.  I have already set out the relevant section of table 4 in figure 1 above. 
35	A number of other, non-numeric, guidelines are then listed including that:
•	Development should activate the new and existing streets and encourage passive surveillance. 
•	Built form should respond appropriately to sensitive interfaces in terms of scale, visual mass, overshadowing and overlooking.
•	Built form should be carefully designed to maintain reasonable levels of sunlight to public spaces at the September equinox. 
•	Future development should be designed to carefully consider impacts on the amenity of other uses within the Precinct. 
•	Future development should be designed to minimise wind effects on key public realm areas.
36	I firstly find it important to comment that the table to clause 6.9-4 identifies a setback ‘guideline’ which is one of a number of guidelines sought.  It is not a requirement to be read in conjunction with clause 37.08-6.  Rather it is one of many decision guidelines to be considered as part of an assessment in accordance with clause 37.08-7.  
37	I also note that Mr Sheppard’s urban design evidence on behalf of the applicant included history that the setback guideline in table 4 to clause 6.9-4 is derived from a 2013 masterplan for the Moonee Valley Racecourse that was prepared by Tract Consultants on behalf of the racecourse in the preparation for an Advisory Committee to consider redevelopment of the racecourse in 2013.  The masterplan has no statutory weight as it is not a reference or incorporated document of the planning scheme.  It is also not an adopted policy of the council.  
38	I was provided a copy of the 2013 masterplan and it is consistent in the visual representation of the table 4 guideline.  The masterplan also refers to it as a guideline for general streets in the racecourse area.  Mr Sheppard referred to the 2013 guidelines objective for the broad precinct 9 area to have setbacks that ‘are consistent with the prevailing surrounding context’.  I also note that within precinct 9D of this document, there is a direction for all new building to be setback 5.0 metres from streets.
39	I give no weight to the 2013 document other than to acknowledge it provides some useful context to the establishment of the provisions now in the planning scheme.  My decision making is based on the planning scheme and adopted policies of the planning scheme.  
40	I assess the need for condition 1o) on its merits below, having regard to the relevant provisions of the planning scheme, not simply because the setback guideline exists.  I do not ascribe to submissions made by the objectors that to not meet the setback guideline will result in a poor precedent for future development of the racecourse land, or that it should be met simply because the guideline exists.  It has often been commented by the Tribunal that policy should not be applied slavishly but rather in an intelligent and flexible way having regard to the entire strategic and policy framework affecting the matter.  As a guideline, the setback is not a fixed standard and needs to be considered as one guiding factor among the many decision guidelines and objectives of the ACZ1.  
41	The setback also needs to be addressed in context of the building form as a whole and how this overall building presents to its public interfaces.  In this instance, it is whether the setback is needed so as to make the overall building acceptable in accordance with the objectives and requirements of the ACZ1.  
42	Relevantly this includes whether the building and its setback to Kenna Street, as now provided for in the substituted plans, results in an unreasonable streetscape presentation by way of visual bulk, shadow or street activation, therefore warranting the imposition of condition 1o).  I discuss these matters below.
Is condition 1o) necessary to address potential visual bulk?
43	The council submits that the wall to the street edge on the north side of Kenna Street ‘interrupts the boulevard view’ gained from a view from MacPherson Street and further north along Kenna Street.  It says that as the building will sit forward of the three storey townhouses to the west of the site, it will be a prominent built form, being a six storey high street wall, with three levels set back three metres above.  
44	Mr Sheppard’s urban design evidence is that the wall to face Kenna Street is acceptable as it is only short in its facia width to Kenna Street.  The council considers the wall remains long and will visually dominate the view along Kenna Street, particularly when viewed from the west where the broader racecourse development transitions to existing housing west of McPherson Street.  
45	This existing housing west of McPherson Street is over 70 metres from the proposed building and there is a transition of three storey townhouses under construction in between.  These townhouses have a 1.6 – 2.7 metre setback from Kenna Street.  While these townhouses are not as tall as the proposed 23 metre high street wall they create a more robust interface than the existing residential form of Kenna Street, west of McPherson Street.  They are also set back less than what the council is seeking for the review site.
46	I agree with Mr Sheppard’s evidence that the proposed street wall is not long, to the extent that its 23 metre height could be seen as visually imposing.  The proposed southern interface of the building is effectively a side wall of the building that faces east and west where it has balconies ‘eroding’ the sides of the 25 metre wide interface.  In this context I am not concerned that it sits forward of the buildings to the west.  The building then opens up to a larger landscape interface to its east.  The slight narrowing of the building setback to Kenna Street through the proposed zero setback of its southern street wall simply establishes a transition space to this larger opening.  It does not create a canyon effect or similarly detrimental impost on Kenna Street.  
47	The council submits that the five metre setback is an important design criteria to provide a landscaped transition space between the footpath and the front of the building.  As approved office use, if such a landscape space were provided it is unlikely that it would become active outdoor interface.  This is partly because of the approved use of the ground floor and also because the interface is to the south and therefore in shadow.  Shadow of the footpath north of Kenna Street would still occur, even if the building had a five metre setback.  At 20 – 25 metres in length I do not see that a five metre landscape space is needed.  The substituted plans provide for a shallower, 1.6 metre landscape space at ground level.  Again I agree with Mr Sheppard’s evidence that this will provide some physical and landscaped separation between the glazed office spaces and pedestrians, while providing for active interaction between the public and private realm. 
48	The council and objectors also submit that when viewed from the east, the building will not be softened as well as represented in photomontages provided from this eastern angle that included existing and proposed trees.  Mr Flood was called to explain how he derived this view and commented that it had been a complex and complicated montage to establish as the site is currently under construction and future roads are not yet constructed.
49	I have used the photomontages that exclude vegetation to assist in my review of plans.  It is the plans and the relevant cross sections and elevations that I primarily base my consideration.  From these I am satisfied that the view from the larger landscape space east of the building provides a sufficiently open setting.  It is not a setting that I envisage will create any adverse amenity impact via visual bulk.  Rather, I am satisfied that the design of the building to face east, toward the larger landscape space and porte cochère is an appropriate design response for the site setting.
50	When reading the building as a whole, including its generous eastern setback and space for landscaping, I am satisfied the southern setback as proposed without condition 1o), is acceptable as a question of visual bulk.
Is condition 1o) needed to avoid unreasonable shadow?
51	The council submits that the south wall of the building to Kenna Street will impact on proposed street trees proposed directly in front of the building due to shadow.  
52	The council officer report indicates that the proposal was referred to both the council arborist and the council landscape officer.  The report does not indicate that either had concerns with such issues.  Again because the wall is only 20 – 25 metres wide, I am satisfied that trees planted directly to its south will receive some direct sunlight in morning or afternoon and indirect or reflected light during other parts of the day.  
53	I also note that increasing the setback to five metres as sought by the council would not lead to the proposed street trees being in full sun all of the day, only that they would receive some more sun in angles, morning and afternoon.  The street trees have a potential to not meet their full mature height and spread due to shadow cast by the building, but not to an extent that I find a need for condition 1o) to be imposed.  Nor was there any evidence put to me that the trees cannot grow, only that the currently selected species prefer full sun.  Many trees grow well in some shade and adapt to their conditions.
54	As I have already set out, the proposed park set out in the ACZ1 schedule has now been moved to a location further south of Coat Street so there is no concern that the building will shadow such open space.  Any shadow on future buildings or the south footpath of Kenna Street is small due to the overall form proposed that is relatively narrow and includes setbacks to upper levels.
55	The wall will cast a small shadow over the two ESO2 protected trees by 2pm at the equinox.  Again I note that the officer report, that considered a wall without the three metre setback of the upper levels, was not concerned about adverse impact to these trees from shadow.
56	The overall shadow impact to these trees will derive from future development to their north-east, which is the subject of a separate permit that I understand is also subject to a review of conditions by the Tribunal.  This matter is yet to be heard.  For the section of space adjoining to the trees north-west that is before me, I am satisfied that the space of the trees and proposed communal and open space around them is sufficiently open without a need to reduce the building as sought by condition 1o).
Is condition 1o) needed to maintain a consistent streetscape pattern?
57	The council and objectors maintain that the condition is necessary to achieve the objective and guideline of ACZ1 to provide a continuous street wall edge.  
58	The buildings already under construction in Kenna Street provide some variety of street wall edge.  The provision of a taller wall at the street edge for its 20 – 25 metre section will be separated from the townhouses to the west and from other development to the east due to walkways already under construction and the proposed porte cochère area.  The building, with its southern interface to Kenna Street is a stand-alone element, rather than one that needs to ‘match in’ with an immediately abutting building.  
59	The ACZ1 objectives include encouraging high quality architecture and urban design outcomes.  I find the building, read as a whole, with its careful consideration to the Stone Pine trees to the east of the site to be a good urban design outcome.  The pedestrian access remains comfortable and safe, with the section of façade at the street edge being only for a relatively short length of Kenna Street with open areas east and west that will retain a sense of openness to the street as well as sunlight.  In context of this overall form evolving in the streetscape setting of the building I see no need to impose condition 1o).
Are there any other reasons why condition 1o) is needed?
60	The council commented that in the 2020 decision, the Tribunal found wind impacts acceptable.  There is nothing before me to defer from this position.  Nor was I provided with any material to indicate that the 20 – 25 metre wide wall that is 23 metres high would cause significant wind issues.  This is noting that the wall is lower and less wide than that considered in the 2020 decision.  I also note that the officer report was satisfied with the application plans it considered that was taller, and did raise any concerns about wind impacts.
61	The overall building form proposed creates street level activation, passive surveillance of the street and provides for ‘changing streetscapes’ as sought by the objectives of precinct 9B of ACZ1.  
62	The objectors submit that no net community benefit is achieved by allowing an exceedance of the ACZ1 setback guideline and that to allow the exceedance will be detrimental to the community as it will encourage further exceedance in other approvals sought, resulting in an overall size and density of development far greater than anticipated in the 2013 Advisory Committee Report.
63	The setback proposed, while exceeding the guideline, is to a building that overall has little exceedance in volume sought by the ACZ1 height provisions and includes areas that are well within the envelope of the ACZ1 requirements and guidelines.  This is evident in the volume graphic depicted in figure 4 and other shadow diagrams provided by the applicant. 
64	The density limit anticipated by the advisory committee report is a matter being monitored by the council in a separate permit condition for a staging plan.  This separate permit condition is not contested by the permit applicant.  
65	It is also relevant to note that exceeding the setback guideline does not directly mean more dwellings are built.  A building volume can derive different dwelling numbers depending upon the size and shape of dwellings.  I do not see that having the setback, as proposed, leads to failing of other strategic aspirations of the racecourse redevelopment about dwelling numbers.
66	I am satisfied that the building, as set out in the substituted plans, and with other, uncontested conditions, provides a net community benefit.  This is due to the overall nature of the building and its setting that I am satisfied achieves good design, without the need for the setback as sought by condition 1o).
Alteration to condition 1 preamble.
67	In substituting the application plans at the commencement of the hearing I also find it appropriate to make administrative change to the preamble to condition 1.
68	Condition 1 of the permit issued by the council on 24 August 2021 refers to submitting amended plans ‘generally in accordance with the plans submitted and assessed with the application’.
69	By substituting application plans by order of the Tribunal, the plans I am considering become the application plans.  To avoid any doubt that it is the 10 February 2022 applications plans that should be further modified by the items of condition 1, rather than plans originally lodged with the application made to the council, I find it appropriate to specifically refer to these plans in condition 1.
Conclusion
70	For the reasons given above, I find condition 1o) unreasonable and unnecessary.  I therefore direct the conditions be changed to permit MV/880/2020 to delete this condition.  

Alison Glynn
Member