1. The plans and elevations referred to as VCAT issue dated 22 October 2008 by Shelton Finis Pty Ltd Issue D are substituted for the application plans.

3. The responsible authority must issue a permit for:

• Demolition of buildings
• Development of a three storey mixed use building above two basement levels of car parking
• Use of dwellings
• Works to a Road Zone-Category 1
• Partial waiver of car parking and bicycle provision
• Erection of advertising signage

in accordance with the endorsed plans and subject to the conditions. The conditions to be inserted on the permit are contained in Appendix 1 to this decision.

Mr Phillip Bisset, solicitor of Minter Ellison. Mr Bisset called evidence from:

Mr Andrew Sherman, solicitor on the first day. Mr J Monaghan, on the second day, both of Russell Kennedy.

Mr Ian Geddes, Mrs Judith Fields, Mrs Mary Rimington in person and Mr John McNaughton on behalf of Mordialloc Sporting Club Inc.

1. This is an Application for Review by 530 Main Street Pty Ltd [1] concerning the failure of Kingston City Council to issue a permit for a mixed use development comprising shops (with an Aldi store) and dwellings above two levels of basement car parking in Mordialloc Activity Centre.
2. Despite the Council Officers recommending approval, the responsible authority subsequently informed the Tribunal that had it the power it would have refused the application on several grounds which were summarised by Mr Sherman. The proposal:
   • is not consistent with the preferred neighbourhood character
   • will result in unreasonable visual bulk to adjoining properties
   • will result in unreasonable overshadowing to adjoining properties
   • has insufficient on-site parking
   • constitutes an overdevelopment of the site
   • will result in unreasonable increase in traffic generation
   • has unsatisfactory vehicle access arrangements
   • produces an unacceptable design outcome and in particular fails to improve the southwest boundary wall
3. Objectors the supported the responsible authority's decision and argued:
   • There was insufficient car parking and no justification for lowering the parking below the standard parking rate
   • The means of vehicular access to Epsom Road is inappropriate. The existing access to Main Street should be reconfigured to allow egress at least
   • The proposal will have unreasonable impact on nearby uses by increased traffic and parking on adjoining properties
   • There is excessive overshadowing and overlooking
   • The proposal produces an overdevelopment
   • The are potential pedestrian safety issues
   • It will effect the value of neighbouring properties
   • It as inappropriate built form, scale and design
   • It is out of character with Coastal Village Character and Coastal Village Policies in the Planning Scheme
   • The development is excessively high
4. Mr Bisset on the other hand argued:
   • The proposal will result in an outcome that responds positively to a range of relevant controls and policies under the planning scheme.
   • The proposal is consistent with the purposes of the BIZ that encourages intensive development of business centres for retailing and other complementary uses.
   • The property is already used for commercial purposes but presents an extremely poor urban design at a key entry point into the existing shopping centre. The position of the existing NQR supermarket is essentially retained and expanded but the proposal incorporates an external sleeve of shop and residential uses to improve the streetscape presentation.
   • The proposal has been well designed to present a quality contemporary building at this corner and has been carefully designed to manage the interface between the abutting commercial and residential sites.
   • The proposal is within an existing commercial centre which is designated as a Major Activity Centre with the Melbourne Metropolitan Strategy. All policy points to the continuation and intensification of commercial and residential uses on this site.
   • The proposal does not evidence features consistent with overdevelopment.

1. The amending plans[2] show:
   • Demolition of all buildings with the exception of a rear 6.5 metre high concrete block wall on the southern and western property boundaries
   • Construction of a three storey building comprising a supermarket (Aldi store), 10 retail shops, 38 dwellings, and 2 basement level car parking areas. A new loading area will be provided in the north-western corner of the site with direct access to Epsom Road
   • All vehicular access to the basement car parking area to Epsom Road. An existing crossover from the Main Street service road will be deleted and footpath and nature strips (where relevant) reinstated
   • The provision of 168 car parking spaces
   • Indicative business identification signage along the Main Street elevation
   • A presentation to Main Street of a single storey parapet commercial forms with canopies and signage provided over the adjoining footpath
   • The first and second floor residential uses set back beyond the street frontage. At the corner of Main Street and Epsom Road a two storey formation with punched openings marks the corner
   • Dwellings arranged along the central corridor so they are oriented either to Main Street or towards Port Phillip Bay with a number of small units placed towards Epsom Road and one to the southeast
   • Business identification signage in excess of 8 square metres. The signage plans depict notional signage on individual shop fronts and verandahs. Signs for the Aldi store were more specific in displaying corporate logo, business signage, including a wall sign, illuminated signage, directional signs. See plans by Flint Architects dated 8 January 2008

1. The subject site is located on the north western corner of Main Street (Nepean Highway) and Epsom Road in Mordialloc. The site comprises seven allotments having a frontage of 77.9 metres to Main Street and 37 metres to Epsom Road. It is an irregular shaped property falling from north to south with no vegetation. There are existing shops/commercial premises including an NQR supermarket in the south-western corner of the site. This corner of the site contains a 6.5 metre high wall that will be retained as part of the project. The site has a total area of 3450m2. There are various car parks located on the northern side of the existing shop.
2. Land to the north on the other side of Epsom Road is the Mordialloc Sporting Club. This is a two storey hotel building that operates as a sporting club with car parking to its rear. Vehicular access to the car park is gained from Epsom Road and the Main Street service Road. Blue public parking signs direct drivers to park in this car park.
3. Land to the west comprises three single storey villa units. Further to the south-west at Nos. 9 and 9A Montgomery Street are two recently constructed three storey buildings (two storeys above garages with a possible top level deck). Nos.11 and 13 Montgomery Street comprise single storey dwellings.
4. Land to the southeast comprises shops and commercial premises fronting Main Street with vehicular parking behind. These premises obtain vehicular access from Montgomery Street, via a laneway.
5. Land opposite on the other side of Main Street (Nepean Highway)to the north-east comprises shops, banks and other commercial premises.
6. A large roundabout controls traffic outside the site in a three-way intersection with Nepean Highway and McDonald Street. Vehicles exiting Epsom Road do not have direct access to this roundabout, they must turn left and travel in a northerly direction and if they wish to travel south or east they must use a U-Turn facility further to the north-east in Nepean Highway.
7. The site is the northern extremity of the Business 1 zoned area of the Mordialloc Shopping Centre. This centre is designated a Major Activity Centre within the Melbourne Metropolitan Strategy and is serviced by a train station and numerous bus routes.
8. Main Street is a major metropolitan arterial road carrying well in excess of 40,000 vehicles per day. Main Street itself is a two-way double lane through traffic road with individual service lanes and parking in those service lanes.

1. The subject site and properties to the southeast are zoned Business 1 under the Kingston Planning Scheme. The properties to the west in Epsom Road, south in Montgomery Street and The Mordialloc Sporting Club to the north are located in a Residential 1 zone.
2. The site is also located within a Heritage Overlay area HO123. It is also located within Design and Development Overlay DDO10-Mordialloc Activity Centre.
3. Permission is required to:
   • demolish buildings and to construct or develop land[3].
   • use land for dwelling, due to the entrance width.
   • reduce the number of car parking spaces below the standard rate in Clause 52.06-1.
   • erect advertising signage under Clause 52.05.
   • modify the access to a Main Road -Category 1 under Clause 52.29.
4. There are Decision Guidelines relevant to the exercise of discretion in Clauses 34.01-4, 43.01-4, 43.02-5 and 52.06-6 in addition to those contained within Clause 65.
5. Schedule 10 to the Design and Development Overlay provides design objectives, a maximum height limit of 11 metres on the site, design standards, performance criteria, and specific decision guidelines. The site has been specifically identified in supporting documents[4].
6. There are also specific State and Local Planning policies[5] that underpin specific local planning policies including Clause 22.14 - Mordialloc Activity Centre. This is based on the objectives and principles of Mordialloc Pride of the Bay: A Structure Plan for Future Mordialloc 2004.

1. At the review hearing each party provided detailed written submissions and supplemented these with oral presentations. All witnesses provided detailed witness reports and were available for cross-examination. We were provided with photos, aerial photography, maps and diagrams of the locality. At the commencement of the hearing Mr Bisset sought leave and was granted leave to table amending plans and elevation of the development. We undertook an inspection of the site and the surrounding area following the review hearing.
2. The issues to be determined in this application are:
   • Is the proposal consistent with State and local planning policies and the purposes of the Business 1 Zone?
   • Is the proposal an overdevelopment of the site having to its zoning and overlay controls?
   • Is there sufficient car parking for the proposed use?
   • Will the proposal have an unreasonable impact on local streets through increased traffic?
   • Are there any off-site amenity impacts derived from the proposed development?

Is the proposal consistent with State and local policies and the purposes of the zone?

1. In an application involving a site in a Business 1 Zone that has been designated as a Major Activity Centre and with Design and Development controls and a Heritage Overlay, there is invariably a need to balance various conflicting objectives in favour of net community benefit. We consider that the three storey mixed use development has responded well to the thrust of Council policies including the Mordialloc Pride of the Bay Structure Plan, the Main Street Precinct 6 guidelines, and the purposes of the Business 1 Zone.
2. We consider the development has responded to the specific purpose of the business 1 Zone which seeks:
   • To encourage the intensive development of business centres for retailing and other complementary commercial, entertainment and community uses.
3. This proposal replaces an inferior grouping of shops/commercial premises and a small supermarket, and provides a more intensive form of development on a site that is expressly referred to in the Precinct 6 Guidelines in Clause 22.14- 4. It also meets requirements of Table 1 to Schedule 10 in the DDO and related reference documents. The local planning policies encourage buildings up to 11 metres in height, with some restrictions on setbacks. Importantly these setback requirements in the DDO are met. We therefore agree with the evidence of Mr McGurn at paragraph 59 of his witness statement:

Having regard to the explicit nature of this policy direction, combined with the site's Business 1 zoning and the thrust of the Metropolitan Strategy in relation to Major Activity Centres, I consider that there could be little debate as to the strategic appropriateness of the proposed land use and, in my view, more broadly to the 'form' of the development in terms of its relationship with Main Street and its mooted role in reinforcing the northern gateway, as well as the prescriptive built form guidance given by the DDO10 control.

Has the proposal responded to the thrust of local planning policy?

1. The responsible authority and objectors claimed the proposal was an overdevelopment of the site and it had not adequately responded to the "village" character of the Mordialloc Activity Centre. They referred to the document Mordialloc Pride of the Bay Structure Plan, which seeks, amongst other things, "the identification and enhancement of established characteristics which make Mordialloc a highly attractive and unique coastal village centre".
2. We can appreciate the Council is seeking to preserve historic or cultural elements of the Mordialloc Activity Centre and introducing design and development guidelines to complement the centre. We also consider the efforts to provide specific development and siting guidelines particularly on strategic sites such as this is also helpful in understanding the extent of development anticipated by the Council in this Major Activity Centre.
3. The Structure Plan is a reference document in the planning scheme and underpins policy formulation that lead to incorporation of the Heritage Overlay and DDO10 into the planning Scheme. The objectives and precinct guidelines for the site, including Precinct 6 in Cluse 22.14 and the Design objectives, heights, design and performance standards in DDO10 also assists a better understanding of the extent of development anticipated in this Major Activity Centre.
4. However, there seem to be mixed messages being sent out about what is desired. Mordialloc has been identified as a Major Activity Centre but on the other hand the Mordialloc Pride of the Bay Structure Plan document seeks a village atmosphere. We appreciate that Mordialloc grew out of a village and remained a small village with a population of only 400 in the 1880s but we consider it has now far outgrown that somewhat quaint definition[6]. Whilst it might have once been described as a little backwater, it is now a busy, vibrant activity centre with a major metropolitan arterial road bisecting the centre, effectively divorcing one side from the other.
5. In evidence, Mr Riddett stressed that in heritage terms she did not see it as a village. She considered that most of the significance of the activity centre derived from its cultural significance.

Does the proposal respond to the thrust of the Design and Development Overlay?

1. Mr Sherman claimed that the proposal was an overdevelopment of the site and did not adequately respond to the purposes and intent of the Design and Development Overlay DDO10. Mr McGurn on the other hand advised at paragraph 59:

More specifically I consider that the proposal strikes an appropriate balance between a contemporary redevelopment which contributes positively to the Main Street character and the sensitivities of the adjoining residential zone. In summary I consider that the proposal:

• Meets the requirements of the DDO10, notably:
  • - The building has an overall height of 11 metres and is three storeys, meeting the mandatory height requirement.
  • - The proposed third storey is set back a minimum of 4 metres from Main Street in accordance with the mandatory setback requirement.
  • - Terraces and balconies are setback more than 4 metres from Main Street.
  • - The proposal does not include any roof decks.

1. We accept Mr McGurn's evidence and consider the proposed mixed-use development has met the objectives and thrust of DDO10 and is expressly identified in the Main Street Guidelines. Whilst there was some debate about the overall height of the building we consider it is neither too high or an over development of the site. From a reading of the building from most external points on the site, it appears to be within or close to the maximum 11 metre height nominated in the DDO. If there is any doubt about this issue, we have inserted a condition on permit requiring that the maximum height be 11 metres and therefore the applicant must demonstrate through appropriate cross sections that it meets this DDO limit.
2. We also consider the proposal meets the following policy directives in the Main Street Precinct 6 guideline document[7]:
   • Site 2: Gateway building mixed use retail/residential provides consolidated entry to rear car park from Main Street and Epsom Road.

• Redevelopment should bring forth a contiguous building alignment to the streetscape and maintain vertical elements that reflect the historic rhythm of commercial street frontages within Main Street. The development should further consolidate and extend the pedestrian pathways at the site's street frontage.
• A 7-9 metre spacing of store frontages to the street and incorporation of building elements that reinforce the pattern of development upper floor levels.
• A building height of three storeys or 11 metres with a 4 metre setback.

Whilst there will be no access from the Main Street Service road this largely the result of the congested nature of the egress from the existing service road. Vic Roads also insist access be from Epsom Road only.

1. We consider Council, in dismissing its own officer's recommendations, may have misunderstood its own planning policy guidelines and the provisions in DDO10.

1. Rather than challenging the quantum parking provision Mr Sherman claimed there will be difficulty for future shoppers in accessing two levels of basement car parking. On the other hand objectors expressed dismay at any reduction in the standard car parking rate identified in Clause 52.06 of the Planning Scheme.
2. Mr Turnbull referred to the Decision Guidelines in Clause 52.06-1 of the Planning Scheme to justify a reduction in the parking rate. He claimed the Planning scheme rate is generally only ever achieved for high intensity shop uses such as markets, with metropolitan specialty shops and supermarkets only generating in the order of 4 and 5 spaces per 100m2 respectively during peak periods. Mr Turnbull's predicted parking demand was 131 spaces on weekdays and 158 car spaces on weekends for all uses, and therefore the 168 on-site spaces exceeds the predicted peak demands.
3. Mr Turnbull also referred to the Advisory Committee appointed by the Minister for Planning to review Clause 52.06 of the planning scheme which had recommended rates of 5 car spaces per 100m2 for supermarkets and 4 car space per 100m2 for shops (reducing to 3.5 spaces/per 100 square metres in an activity centre).
4. For the benefit of objectors, Mr Turnbull explained that the standard car parking rate in the planning scheme was derived from historical parking surveys dating back pre 1980 when there was no Friday night, Saturday afternoon and Sunday trading.
5. We accept Mr Turnbull's evidence and conclude that there is justification to reduce the car parking rate for this development in terms of both retail, supermarket and dwelling uses.
6. We acknowledge the concerns by Mr Sherman some customers may not wish to park in a basement car park. However, multi level parking, whether in basements or on decks, is not uncommon in metropolitan Melbourne. Any future customer to premises such as Aldi will make a conscious decision as to whether to try and park outside the site in Main Street (which has a limited parking supply) or alternatively use the basemen car park.
7. We do not think that it will be a practical alternative for customers of the Aldi to park in Epsom Road or even the Mordialloc Sporting Club car park, simply because of the type of purchases undertaken. Usually customers make bulk purchases and often rely on trolleys. In this case the car park is directly accessed by both travelator and lift and is far more convenient for customers than the alternative circuitous route between the Aldi store and the Sports club car park.
8. We consider that the layout and access to the car parking is reasonable, and if a customer does not like this option then they can exercise their own judgment and travel elsewhere to another supermarket or Aldi store. After all this is not the only Aldi store with the City of Kingston.
9. We acknowledge Mrs Rimington's concern about the potential for customers to park in Epsom Road. There may be some overflow parking from retail customers, but we do not consider this will be a major issue having regard to the function that Epsom Road currently performs, its location on the periphery of the activity centre and its proximity to the Mordialloc Sporting Club.
10. We are somewhat perplexed at the objection by the Mordialloc Sporting Club about the likelihood of overflow parking transferring into the car park of the Mordialloc Sporting Club car park. We observed that at the two entrances to the Mordialloc Sports Club car park and on the power pole at the corner of Main Street and Epsom Road, there were blue public parking signs directing parking to the club's car park. We do not know what the status of this car park is but we think it curious the Club opposes the use of this car park by the customers of these premises when the signs invite the general public to park in its grounds.

1. We found it helpful that Mr Vegt of VicRoads attended the hearing to explain why VicRoads was strongly insistent on requiring closure of the service road access to Main Street and allocation of all vehicular access off Epsom Road. He explained that if access was provided from the Main Street service road into the site it would cause substantial congestion. He also opposed egress from the site into in the service road exit because it would also cause unacceptable congestion at the exit point to the roundabout.
2. Mr Vegt also explained that VicRoads required a condition on the permit requiring the applicant to provide before and after traffic surveys to determine whether a nearby U-turn in Main Street, north of the roundabout, should be upgraded. He confirmed that this was the best controlled under the VicRoads Act rather than specifically through the planning permit.
3. Objectors called for an independent assessment but we consider the most appropriate and best qualified body to deal with this is VicRoads and we accept the submission by Mr Vegt. Whilst objectors may believe that parking and access should be from Main Street, we consider that Epsom Road is eminently a more superior road access facility. It is wide enough and has good visibility to enable safe traffic movements, whether from the basement car park or the loading bay. We consider most vehicles will be dispersed relatively evenly and even if there is warrant for increasing the length of the U-turn in Main Street, this is and should be determined by the appropriate authority.
4. We consider the removal of the vehicular access to/from the Main Street service road will be a positive outcome. There will be the potential to increase on-street parking outside the site by about three spaces and there is opportunity to park bicycles in racks outside the site. We consider that the proposed access is reasonably consistent with the Main Street Precinct Guidelines and is a well thought out response having regard to the site context and the access issues raised by Vic Roads.

1. We consider the loading facilities are well sited and of sufficient size to cater with the usual vehicles servicing the shops and the Aldi store. Importantly the interface treatment with the loading area will be substantially improved to which is currently provided. At present, the current loading facility is open and there are no limits to the hours of operation. On the other hand, the applicant is prepared to meet the usual EPA loading bay requirements.
2. Mr Burton supported the use and location of the loading bay on environmental and acoustic grounds. He asserted that due to background noise levels, particularly from the am peak traffic that there may be justification to extend the morning loading time. We have refrained from doing that, and rather have relied on the usual 7am - 10pm standard. We consider this is reasonable in the context of the existing facility, the zoning of the land, the background noise levels and the measures that will be taken to improve acoustic treatment of loading facilities. This treatment in itself is a positive outcome.

1. There are no heritage issues with this proposed development. No heritage building is being removed and the proposed building will not impact on any heritage building within Heritage Overlay Area No.123 The closest heritage building is the Mordialloc Sports Club building, that is in a separate overlay (HO88). There have been a number of unfortunate modifications to the Mordialloc Sports Club building to render a reading of the building in the context of its Statement of Significance as questionable. It seems that its Spanish mission origins have been somewhat diminished severely by additions, alterations and facade changes. We accept the evidence of Ms Riddett and consider this building will not have its significance diminished by the proposed development.

1. Mr Sherman sought removal of the western boundary wall abutting Nos. 9, 9A, 11 and 13 Montgomery Street in an effort to improve the residential/commercial interface. He argued that the only reason the large 6.5 metre wall was being retained was because it allowed a larger form of development on the subject site and the interface. We consider there is no justification to make the applicant remove the boundary wall. It forms part of the exiting site context and from our observation, in recent developments such as that on 9A and 9 Montgomery Street owners have adapted their development expectations on the basis of the wall. The new dwellings at 9 & 9A are virtually three storeys in height (with a possible deck above) and take advantage of the excellent views to Port Phillip Bay. They provide a guide to the form of development that is taking place on the fringe of a Major Activity Centre.
2. We can well see that No.11 Montgomery Street, which is ripe for redevelopment, may adopt a similar design concept and build up to take advantage of views of the bay whilst also turning its back on this very large wall. So whilst there are some disadvantages attributed to this wall, it also provides opportunities for residential landowners to develop their sites for higher order and more intensive development than might otherwise be possible, which is consistent with the thrust of Metropolitan Strategy. We acknowledge that the new building will produce a substantially larger built form than the current and that it is unlikely that such a building would be acceptable in the residential hinterland surrounding the activity centre. However this is suitable mixed use building that has responded to the complex matrix of planning controls and policies affecting the site.
3. We consider the interface arrangement is an appropriate one for an urban area which is zoned Business 1 but with a Residential 1 interface along its western abuttal. In this regard we are mindful of the Martin Stewart decision which stated:

The owners and occupiers of allotments at such zoned interfaces must both make compromises. The occupier of the residential allotment must accept a lower residential amenity. The occupier of the Business Zone allotment must accept a possible requirement that the height and intensity of development that may be appropriate elsewhere in the zone be softened or scaled down at the boundary.[8]

1. It should also be appreciated that the site not just located in a small suburban shopping strip that zoned Business 1, but rather it is in an area identified as a Major Activity Centre where there is strong policy support more intensive redevelopment. Council's own Pride of Bay document identifies this site specifically for redevelopment such as this.

1. We are satisfied that overlooking and overshadowing have been addressed and is a reasonable response for a Business 1 zoned property at the interface with residential properties. These sites are fortunate in that they only experience morning shadowing which rapidly diminishes from about 10am. Dwellings more to the southwest such as 9A, 9 and 11, may experience some increase to their eastern side but as noted above, the redevelopment of 9 & 9A shows the major outlook from these properties is to the west to take advantage of views to the bay.

1. We have modified some conditions recommended by the Council after examining the proposed development. Most changes relate to the need for further detail on material finishes and architectural articulation. We do not consider there is justification to reduce the height of the building or to reduce parts of the building to appease a perception of overdevelopment.
2. No evidence was presented by the Council or objectors to justify further control of the development or use through a Section 173 Agreement nor do we consider there is any evidence to justify additional road works in Epsom Road. We have limited the location of clothes lines to the recessed section of the balconies and required solid balconies on the southern part of the upper level to assist in masking activity on balconies. Clothes lines should be placed to avoid visibility from the public domain in Main Street.
3. We have modified the conditions required by VicRoads as these are mutually acceptable to VicRoads and the applicant.
4. We appreciate the impassioned submission by Mr Monaghan about the need to act cautiously in wording of the soil testing conditions, but we refer to existing documents filed with the Council concerning removal of the underground fuel storage tank and the soil validation program. Section 6 of the first document, states:

"The chemical testing results obtained indicate that residual concentrations of potential contaminants of concern in the in-situ soils remaining on the site are unlikely to pose an unacceptable risk to future users and/or occupants of the site."

1. We have taken up the suggestion by both Mr Vegt and Mr Bisset and inserted a condition which places a higher level of scrutiny on the that part of the site that contained the underground storage tank noting that the applicants have already undertaken extensive removal and investigative works. We are somewhat surprised at Councils obvious concern about this issue when documentation has been available to it since May 2008.
2. We also note that in preparing the subject site the applicant will be removing soil to the depth of about 6 metres from almost the whole site to provide a basement car park. Residential accommodation will be located on the first and second floors and there will be no ability for future residents to obtain direct contact remnant soil. During the process of extraction soil validation sampling will take place[9] in accordance with AS 4482. At the time of basement extraction and soil validation if there is evidence of contaminants on the remainder of the site these can be reported to the EPA.
3. We consider that this is an appropriate safeguard in the context of information about the history of the site. We note the Council nor any objector could provide details or evidence of previous uses that would necessitate further investigation. This included Mrs Rimington who had lived nearby for more than 50 years. We consider the EPA is the better authority to deal with any contamination discovered through the process rather than rely on the Council because we consider it has greater expertise in this field.

1. No party raised any concern about the proposed signage. We consider the proposed signage depicted in the plans is a responsive and logical signage scheme for this commercial development in a Business 1 zone with no heritage buildings affected.

1. For the above mentioned reasons we consider a permit should issue for the proposed use and development. The development and use has responded to the thrust of the State and Local Planning Policy frameworks, the purposes of the Business 1 Zone and the Design and Development Overlay provisions. We have rationalised conditions and deleted others that we consider were inappropriate or onerous.

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 substantially in accordance with the plans submitted in respect of the Land and prepared by Shelton Finnis Pty Ltd Job No. 766 Rev D, but modified to show:
   • (a) The glazed section of the balcony balustrades to dwellings 27,28,29 & 30 be shown as solid (other glazed balustrades may remain).
   • (b) The building modified by reinforcing the prominence of the vertical divisions between individual retail tenancies along Main Street.
   • (c) The location of all externally-located heating and cooling units, exhaust fans, and the like clearly shown;
   • (d) The maximum height of the building shown at 11 metres above natural ground level;
   • (e) A schedule of colours, materials and finishes schedule, including samples where appropriate, for all external surfaces of the building;
   • (f) Provision of clothes lines in recessed sections of balconies, where they exist. Such lines shall be retractable and generally out of line of sight from the public domain in Main Street.
   • (g) The location of stormwater retention tanks which provide irrigation for above ground planting areas.
   • (h) Stormwater treatment works that use water sensitive urban design principles (including re-use) to reduce stormwater run-off quantity and improve discharge quality.
2. Before the residential use starts, an amended landscape plan to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the landscape plan will be endorsed and will then form part of this permit. The landscape plan must be drawn to scale with dimensions and three copies must be provided. The landscape plan must be substantially in accordance with the plans submitted in respect other Land and prepared by MEMLA Pty Ltd Drawing No. LC885 and dated 31 December 2008.
3. The development as shown on the endorsed plans must not be altered without the prior written consent of the Responsible Authority.
4. Prior to the occupation of any part of the development hereby permitted, the security gate and associated works and security system shown on the plans endorsed under this permit must be installed to Council satisfaction, at the applicant's/permit holder's cost.
5. The dwellings hereby permitted must not be occupied until all buildings and works and the conditions of this permit have been complied with, unless with the prior written consent of the Responsible Authority.
6. Before the commencement of any building or works on the Land a Construction Management Plan (CMP) to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority and when approved shall thereafter be complied with. The CMP must deal with the parking of vehicles during construction, delivery of materials, containment of waste on site and suppression of dust, existing business operations on the site during construction, arrangement for car parking for the existing businesses during construction, construction over the public domain.
7. Before the development hereby permitted commences, a drainage plan showing the method of treatment and discharge to the nominated point must be prepared to the satisfaction of the Responsible Authority. Stormwater drainage of the site must be provided so as to prevent overflows onto adjacent properties and be in accordance with the approved drainage plan.
8. Conditions Required by VicRoads
   • (a) The developer must submit a program/traffic report to monitor traffic conditions at the U-turn slot in Nepean Highway immediately north of the site prior to the commencement of the development authorised by this permit and subsequently 12 months after the completion of that development to the satisfaction of the VicRoads (the monitoring program/traffic report).
   • (b) Should the monitoring program/traffic report established a need to extend the queuing lane to the existing U-turn slot as a result of traffic movements associated/derived from the approved development, the developer must construct that extension to the U-turn in accordance with plans, specifications, and a construction program submitted to and approved by VicRoads.
   • (c) Subsequent to the approval of the functional layout plans, prepare detailed engineering plans for the roadworks along Nepean Highway, to the satisfaction of VicRoads.
   • (d) Before the commencement of any roadworks along Nepean Highway authorised by this permit, the developer must:
     • (i) Provide a bank guarantee (in the name of the developer/owner) without a termination date, to VicRoads for the estimated cost of works.
     • (ii) Provide a payment to VicRoads of the pre-estimate certification audit fee.
     • (iii) Provide evidence that the Contractor has a public liability insurance policy for at least $10 million, effective for the duration of the works.
     • (iv) Provide VicRoads with the name, address, business and out-of-hours telephone numbers of the principal roadworks contractor.
   • (e) The applicant must engage VicRoads pre-qualified contractors (pre-qualified at the appropriate level or as otherwise approved) to undertake all roadworks along Nepean Highway.
   • (f) Prior to the commencement of any roadworks in, on, under or over the Nepean Highway reservation the applicant must have first applied for and received written consent from VicRoads for those works in accordance with Section 63 of the Road Management Act 2004.
   • (g) The applicant must pay the full cost of all roadworks, drainage, service relocations, public lighting and any other costs associated with the subject development.
   • (h) Prior to the commencement of any use authorised by this permit the applicant must complete all roadworks, in accordance with approved plans and to the satisfaction of VicRoads.
9. Before the occupation of any use the areas set aside for the parking of vehicles and access lanes as shown on the endorsed plans must be:
   • (a) properly formed and surfaced to such levels that they can be used in accordance with the plans;
   • (b) line marked to indicate each car space and all access lanes.

Car spaces, access lanes and driveways must be kept available for these purposes at all times.

1. Exterior lights must be installed in such positions to effectively illuminate all pathways, car parks and other public areas to the satisfaction of the Responsible Authority and designed, baffled and located to the satisfaction of the Responsible Authority to prevent any adverse effect on neighbouring land.
2. The maintenance of the buildings, service areas and the surrounds within the site shall be the responsibility of the Owners Corporation, owner or agent and must be serviced at such frequency as will render the service areas and the surrounds to be neat, tidy and clean at all times to the satisfaction of the Responsible Authority.
3. The loading and unloading of goods to and from vehicles serving the supermarket (Aldi store) must be carried out to the satisfaction of the Responsible Authority.
4. The area designated on the endorsed plans for the purpose of loading and unloading of goods from vehicles must be made available for such use and must not be used for any other purpose.
5. The arrival, departure and loading and unloading of goods to and from vehicles must only occur on the following days and between the following hours:

1. All piping and ducting (other than stormwater downpipes) above the ground floor storey of the development must be concealed to the satisfaction of the Responsible Authority.
2. No external equipment (including, but not limited to: ducting and piping, air-conditioning units, heating units, satellite dishes etc), services and architectural features, other than those shown on the endorsed plan, shall be permitted unless with the prior written consent of the Responsible Authority.
3. All external surfaces of the building elevations must be finished in accordance with the schedule on the endorsed plans and maintained in good condition to the satisfaction of the Responsible Authority.
4. Finished floor levels shown on the endorsed plans must not be altered or modified without the prior written consent of the Responsible Authority.
5. Once the development has started it must be continued and completed to the satisfaction of the Responsible Authority.
6. Environmental assessment
   • (a) Prior to commencement of the development the owner must supply a preliminary site assessment of the northern corner of the site contained within Title Volume 5802 Folio 376 and Title Volume 9396 Folio 624 (but not including the larger portion of the entire site known as 540 Main Road (the five units and common land) in accordance with the National Environment Protection Measures (Assessment of Site Contamination) 1999 and a report detailing the findings of the preliminary site assessment must be submitted to the Responsible Authority: or
   • (b) Prior to the use or development authorised by this permit the applicant must submit a Soil Management Plan to the responsible authority. The SMP must be generally in accordance with the draft plan prepared by JD Environmental Services titled Soil Management Plan 540 Main Road Mordialloc Victoria 2008. When approved, the SMP will form part of the permit under this permit and the actions required by the SMP must be implemented to the satisfaction of the Responsible Authority.

Which ever is to the satisfaction of the Responsible Authority.

(c) If the site assessment identifies contamination of the land identified in (a) or (b) above, an environmental audit report must be produced in accordance with Section 53X of the Environmental Protection Act or alternatively a Certificate of Environment Audit produced in accordance with Section 53Y of the Environment Protection Act must be to the satisfaction of the Responsible Authority.

(d) For that part of the land generally known as 540 Main Road, soil validation testing must take place during excavation and prior to construction of the basement (generally in accordance with the report by JD Environmental Services -May 2008) to determine whether soil is unreasonably contaminated for the proposed residential uses noting that residential development is to be erected on the first and second floors. If site contamination is detected, the results of the soil testing must be forwarded to the responsible authority and the EPA within 7 days of receipt of the soil validation testing.

This permit will expire if one of the following circumstances applies:

(a) The development is not commenced within two (2) years from date of issue of the permit;

(b) The residential use does not commence within 2 years of the date of commencement of buildings/works;

(c) The development is not completed within two (2) years from commencement of development.

The Responsible Authority may extend these times if a request is made in writing before the permit expires or within three months afterwards.

[1] Pursuant to section 79 of the Planning and Environment Act 1987

[2] Substituted plan - known as Revision D at the hearing pursuant to Section 64 Schedule 1 of the VCAT Act.

[3] See Clauses 34.01-4 (Business 1), 43.01(Heritage overlay) & 43.02-2(DDO)

[4] Mordialloc Pride of the Bay: A Structure Plan for Future of Mordialloc, and related Precinct Area Plan for Precinct 6.

[5] Clauses 11.03, 12, 14.01, 15.11, 16.02, 17.01, 19.03, 21.

[6] See Encyclopaedia of Melbourne by Andrew Brown May Shurlee Swain Cambridge University Press 2005.

[8] See Martin Stewart Pty Ltd v Port Phillip CC [2000] VCAT 887

[9] See section 6.5 of the Soil Management report May 2008 by JD Environmental Services.