Victorian Civil and Administrative Tribunal|2010-11-05|Before: Warren J

For the reasons provided in this decision, I have decided to set aside the decision of the responsible authority and direct that a permit be granted subject to conditions.

In permit application 469/2008/P a permit is granted and directed to be issued for the land at 211-212 Nepean Highway, Seaford. The permit will allow development of the land for 19 dwellings and create access to a road in a Road Zone Category 1 in accordance with endorsed plans and subject to the following conditions.

Before the development starts, amended plans to the satisfaction of the Responsible Authority must be submitted to be 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 Warren J Foster Architects plan numbers TP06, TP07a, TP08a, TP09, TP10a-TP13a (inclusive), TP14 - TP17 (inclusive) all dated August 2010 and substituted by the Victorian Civil and Administrative Tribunal but modified to show:

All floor plans and elevations to correlate and be correctly labeled. 2. Screening devices to prevent overlooking from all habitable room windows in accordance with Standard B22 of Clause 55 of the Frankston Planning Scheme.

Screening devices to prevent overlooking from all balconies in accordance with Standard B22 of Clause 55 of the Frankston Planning Scheme.

Details of the treatment of the windows to the stairwell located in the eastern section of the development to prevent overlooking to the south. 2. Details of the treatment of the windows to the stairwell located in the western section of the development to prevent overlooking to the north. 3. The security entry gates setback a minimum of 5.0 metres from the street frontage. 4. The use of glass balustrade to the second floor balconies on the east elevation of units 18 and 19. 5. Increased provision of timber cladding or other light finish to the second floor north elevation of Units 17 and 18. 6. Relocation of the bin storage area from the main entry to the development to within the basement, or an alternative location to the satisfaction of the Responsible Authority. 7. The provision of pedestrian gates to the secluded open space of dwellings 1 & 2. 8. The basement setback a minimum of 2 metres from both the south and north boundaries.

The northern section of the balcony for Unit 15 deleted east of the kitchen wall.

Provision for storage for each dwelling in the basement. 2. The area north of the lift and stairwell in the western section of the development marked as 'common garden' included as part of the secluded private open space for Unit 3. 3. Side fencing within 25 metres of the eastern site boundary to be of open design. 4. A Schedule of external colours and finishes and colour samples and these shall be non reflective. 5. The following trees, as marked on the arborist report provided by Stephen Daniel October 2008, to be retained: T 24, 26 and 42-50 (inclusive). 6. A Landscape Plan as required by Condition 4 of this permit. 7. The location of all external plant and equipment as required by condition 7 of this permit. 8. Provision of an Environment Management Plan as required by Condition 23 of this permit. 9. Provision of a Waste Management Plan as required by Condition 25 of this permit.

The location of tree protection fencing as required by Condition 27 of this permit.

Melbourne Water's requirements as shown in Conditions 31 to 39 of this permit.

VicRoad requirements as shown in Conditions 40 to 44 of this permit.

Country Fire Authority requirements as shown in Conditions 45 and 46 of this permit.

The development as shown on the endorsed plans must not be altered without the written consent of the Responsible Authority.
Floor levels as shown on the endorsed plans must not be altered without the prior approval of the Responsible Authority.

Before the commencement of buildings and works, a landscape plan prepared by a suitably qualified person must be submitted to and approved by the Country Fire Authority and the Responsible Authority. When approved, the plan will be endorsed and will then form part of the permit. The plan must be drawn to scale with dimensions and three copies must be provided. The plan must generally be in accordance with the plan prepared by John Patrick Pty Ltd drawing number 10-182 TP VCAT dated August 2010 but modified to show:

Altered layout to incorporate basement setback required by Condition 1 of this permit. 2. A survey (including botanical names) of all existing vegetation to be retained and/or removed including retention of Tree 24, 26, and 42-50 (inclusive) as marked on Vegetation Plan drawing number 212-TPO4.1 dated August 2010 prepared by Warren J Foster Architects;

Buildings and trees (including botanical names) on neighbouring properties within three metres of the boundary;

Details of surface finishes of pathways and driveways, retaining walls and areas of cut and fill; 2. A planting schedule of all proposed trees, shrubs and ground covers, including botanical names, common names, pot sizes, size at maturity and quantities of each plant; 3. Maximisation of planting to the south and north boundaries to the extent that compliance with the requirements of the Country Fire Authority is achieved. 4. All planting to be consistent with the requirements of the Country Fire Authority as provided for in the Wildfire Management Plan referred to in condition 46 of this permit. 5. A maintenance schedule that includes the requirements of the Country Fire Authority in relation to vegetation management. 6. Removal of existing environmental weed species.
Before the dwellings are occupied, landscaping works as shown on the endorsed landscape plans must be completed to the satisfaction of the responsible authority and thereafter maintained in accordance with the maintenance schedule shown on the approved landscape plan and to the satisfaction of the Responsible Authority.

All external plant and equipment must be acoustically treated or placed in sound proof housing to reduce noise to a level satisfactory to the Responsible Authority.
All works facing the boundaries of adjoining properties must be finished and surface cleaned to a standard that is well presented to neighbouring properties in a manner to the satisfaction of the Responsible Authority.
Mailboxes shall be provided to all dwellings in accordance with Australia Post 'Protecting Your Mail' guidelines.
Lighting must be fixed and shall be provided near the front entrance and within the development, and must not cause adverse impact on adjoining land, all to the satisfaction of the Responsible Authority.
All plumbing work, sewer pipes etc. (except for spouting and stormwater pipes) associated with the buildings shall be concealed from general view to the satisfaction of the Responsible Authority.

Provision of a Stormwater Detention System with a volume capable of retarding the 10 year ARI flow from the development site back to a 5 year ARI pre-development value to the satisfaction of the Responsible Authority.
Prior to commencement of development construction detailed design plans and drainage computations of the internal stormwater drainage system including the method of connection to the existing Council drainage infrastructure are to be submitted and approved to the satisfaction of the Responsible Authority.
Water Sensitive Urban Design Principles (WSUD) are to be incorporated into the drainage design to the satisfaction of the Responsible Authority.

Vehicle crossings shall be constructed to the satisfaction of the Responsible Authority.
Before the dwellings are occupied, areas set aside for parked vehicles and access lanes as shown on the endorsed plans must be:

Constructed to the satisfaction of the Responsible Authority. 2. Properly formed to such levels that they can be used in accordance with the plans.

Drained and maintained to the satisfaction of the Responsible Authority.

Line-marked to indicate each car space to the satisfaction of the Responsible Authority.

Parking areas and access lanes must be kept available for these purposes at all times.

All car spaces must be marked as designated car spaces for use by residents of respective apartment occupiers only.
Visitor car spaces must be clearly marked as 'visitor' parking to be easily identifiable.
Disabled car spaces must be clearly marked as 'disabled' car space to be easily identifiable.
Arrow and directional linemarking should be installed with the basement car parks to guide and regulate safe and efficient flow of traffic within the underground parking.
Columns in the underground car park must be painted with brighter colours to at least eye level (approx. 1.5m) to reduce risk of collision.
Where the development involves work on or access to Council controlled land including roads, reserves and rights of way, the owner, operator and their agents under this permit shall at all times take adequate precautions to maintain works to the highest public safety standards.

Precautions are to include, appropriate signage to AS 1743 road works signing code of practice, the provision of adequate barricading of works, including trenches of Service Authorities and any other road openings sufficient to ensure public safety. All relevant permits are to be obtained from Council for works within the existing road reserves in addition to the planning permit.

Prior to the commencement of works associated with the development start, a project specific Environmental Management Plan (EMP) must be submitted to, and approved in writing by, the Environment protection Authority and the Responsible Authority. In addition to all other relevant matters, the EMP must address acid sulphate soils. The development must be undertaken in accordance with the approved EMP to the satisfaction of the Responsible Authority.
All earthworks must be undertaken in a manner that will minimise soil erosion and adhere to Construction techniques for Sediment Pollution Control (EPA 1991) and any exposed areas of soil must be stabilised to prevent soil erosion, to the satisfaction of the responsible authority.

Prior to the commencement of construction a waste services management plan (WSMP) must be submitted for approval by the Responsible Authority. When approved, the WSMP will be endorsed and form part of this permit. The plan must detail the method of garbage collection from the site, times and frequency of garbage collection, to the satisfaction of the Responsible Authority.

Prior to the commencement of the development temporary fencing must be constructed along the 1.55 metre (AHD) contour line (identified as Melbourne Water Building Line). A fixed sign must be provided stating that access, vegetation removal and other disturbances are prohibited during construction.
Prior to the commencement of the development (including demolition) hereby permitted, a Tree Protection Fence defined by a 1.8 metre high (minimum) temporary fence constructed using steel or timber posts fixed in the ground or to a concrete pad, with the fence's panels to be constructed of cyclone mesh wire or similar strong metal mesh or netting with a high visibility plastic hazard tape, must be installed at the extremity of the dripline of the trees to be retained on the site. A fixed sign is to be provided on all visible sides of the Tree Preservation Fencing, stating "Tree Preservation Zone - No entry without permission from Frankston City Council". The requirements below must be observed within this area:

No vehicular or pedestrian access; 2. The existing soil level must not be altered either by fill excavation;

The soil must not be compacted or the soil's drainage changed;

No fuels, oils, chemicals, poisons, rubbish or other materials harmful to trees are to be disposed of or stored; 2. No storage of equipment, machinery or material is to occur; 3. Open trenching to lay underground services e.g.: drainage, water, gas, etc. Must not be used unless approved by the responsible authority to tunnel beneath; 4. Nothing whatsoever, including temporary services wires, nails, screws or any other fixing device, is to be attached to any tree. 5. No building or any other structure is to be erected; 6. Tree roots must not be severed or injured; 7. Machinery must not be used to remove any existing concrete, bricks or other materials.

Any variations to these requirements must be approved by the Responsible Authority in writing and supervised onsite by an arborist.

All storage sites, material and equipment must be restricted to outside 10m of the creek bed and be located outside the fenced tree protection zones.
Prior to the commencement of works, all hollows must be inspected for the presence of fauna. The inspection must be carried out by qualified expert. If fauna is located during the inspection, they must be salvaged and relocated, if appropriate, in consultation with the Department of Sustainability and Environment.
All tree pruning is to be carried out by a qualified and experienced arborist who has a thorough knowledge of tree physiology and pruning methods. Pruning must be carried out in accordance with Australian Standard AS4373-2007 Pruning of Amenity Trees.

No polluted and/or sediment laden runoff is to be discharged directly or indirectly into Melbourne Water's drains or watercourses.
Any new dwelling or building must be constructed with finished floor levels a minimum of 2.4 metres to Australian Height Datum (AHD).
All entrances to the basement car park, including vents, stair cases, drainage outlets, are to be flood proofed to a minimum of 2.4 metres to Australian Height Datum (AHD).
No buildings or works, including private vehicular parking, fencing or private open space, is permitted within the drainage corridor that extends a minimum 10 metres from the top of bank or land with existing surface levels below the 1.55 metre contour, whichever is greater.
Any earthworks within the site must not adversely affect flooding on upstream or downstream properties.
All proposed excavation works must be undertaken in accordance with the approved Environment Management Plan required by Condition 23 of this permit.
Upon completion of any proposed earthworks and development, appropriate revegetation along the creekside must be undertaken to Melbourne Water's satisfaction.
Any works or development (including vegetation removal) on the banks of the Kananook Creek requires separate approval from Melbourne Water.
Prior to the commencement of works, a separate application direct to Melbourne Water must be made for any new or modified storm water connection to Melbourne Water's drains or watercourses.

A two-way sealed vehicular crossover to Nepean Highway must be constructed at least 6.4 metres wide, as measured at the property boundary, to the satisfaction of the Responsible Authority.
The driveway within the property shall be at least 6.0 metres wide for the first 6 metres to allow two-way traffic flow, to the satisfaction of the Responsible Authority.
The edges of the vehicular crossover must be angled at 60 degrees to the road reserve boundary, to improve entry and exit conditions, to the satisfaction of the Responsible Authority.
Existing vehicular crossovers must be removed and the footpath, nature strip and kerbing reinstated to the satisfaction of the Responsible Authority.
The developer must pay the full cost of all road works, drainage, services relocation, and any other associated costs.

Before the development commences, amended plans to the satisfaction of the Country Fire Authority (CFA) must be submitted for approval by CFA and the responsible authority. When approved, the plans will be endorsed and then form part of the permit. The plans must be drawn to scale with dimensions. The plans must be generally in accordance with the application but modified to show:
- Location of fire brigade boost assembly as required by the CFA.
- Location of Hydrants throughout the development, including distances from the buildings or details of safe guards by construction as required by the Building Code of Australia and relevant standard AS 2419.
The Wildfire Management Plan developed by Norm Winn & Associates dated 13 September 2010 modified to reflect the approved landscape plan required by Condition 4 of this permit must be endorsed as part of the permit.

Once the development has started it must be continued and completed to the satisfaction of the Responsible Authority.

This permit will expire if one of the following circumstances applies:
- The development is not commenced within two (2) years of the date of this permit.
- The development has not been completed within four (4) years of the date of this permit.

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

[1] As shown on the plans substituted at the Tribunal.

[2] Noting that the clauses referred to are those in the State Planning Policy Framework (SPPF) amended by Amendment VC71 that was gazetted on 20 September 2010. The amendment incorporated a policy neutral translation of the SPPF but also includes new State planning policies that give expression to the adopted Government policies The Victorian Housing Strategy and Melbourne @ 5 Million.

[3] I have considered all submissions and evidence presented by the parties although I do not recite all of the contents in these reasons.

[4] As indicated on the Housing Directions Map at Clause 21.04 of the Scheme.

[6] Standard B6 at Clause 55.03-1 of the Scheme that would require a front setback of 7.8 metres with balconies to 5.3 metres.

[7] Seaford 7 Design Guidelines Neighbourhood Character Precinct Brochure referred to in the decision guidelines of DDO6 of the Scheme

[8] Comments from Council's urban designer dated 16 September 2 - 9 and provided by Mr Crack at the hearing.

[10] Although I note that there are currently sections of solid metal fencing dividing 211 and 212 towards the rear of the properties.

[11] Comments from Council's urban designer dated 16 September 2 - 9 and provided by Mr Crack at the hearing.

[12] Standard B22 at Clause 55.04-6 of the Scheme.

[14] In a letter to VCAT dated 14 April 2010.

[16] Prepared by Geoaquitards Environmental dated 4 August 2010.

[17] Clauses 12.02-2 Appropriate development of coastal areas and 13.01-1 Coastal inundation and erosion

Ausbuild Constructions Pty Ltd v Frankston CC [2010] VCAT 1778 (5 November 2010)

Ausbuild Constructions Pty Ltd v Frankston CC [2010] VCAT 1778

At a glance

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Before

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Judgment (54 paragraphs)

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Cases Cited (1)

Ausbuild Constructions Pty Ltd v Frankston CC [2010] VCAT 1778 (5 November 2010)