1 The request to cancel Permit D/33/2003 is disallowed.

2 The request to amend Permit D/33/2003 is allowed. Permit D/33/2003 is directed to be amended as follows:

(a)

In Condition 1 add a new part (m) as follows:

(m)

Changes to floor plans and elevations reflecting the findings of the report and the amending plans required by Condition 4(a).

(n)

Condition 4 is deleted and replaced with the following:

4(a) Prior to the commencement of the development, the permit holder must submit to the Responsible Authority a report and amending plans prepared by a suitably qualified and experienced acoustic engineer and architect/draftsperson that indicate:

The form of window glazing and seals to west-facing habitable room windows and the location of any grilles if forced ventilation is proposed.

The location and design of additional openable windows that must face into the balconies in each of the bedrooms of Units 1.05, 1.07, 1.08, 1.10, 1.12, 2.04, 2.06, 2.07, 2.09 and 2.11 that would otherwise have only a west-facing window, including a detailed description of the internal noise levels that can be expected to these bedrooms. The expected noise levels must comply with the relevant requirements of the Australian Standard 2107-2000 Acoustics Recommended Design Sound Levels and Reverberation Times for Building Interiors ("AS2107").

The design and full details of the treatment to west-facing balconies at levels 1-4 including a detailed description of the internal noise levels that can be expected to living areas and bedrooms with windows facing westwards into the balconies. The expected noise levels must comply with the relevant requirements of AS2107.

South-facing openable windows added to the bedrooms at the south-west corner of Units 1.03, 3.03 and 4.03.

The addition of an openable skylight or alternative to Unit 4.08.

(b)

Once the report and plans are to the satisfaction of, and approved by, the Responsible Authority, the recommended works must be fully installed as part of the approved development.

(c)

On completion of the works and prior to the occupation of the development, the report of a suitably qualified acoustic consultant must be submitted to the Responsible Authority demonstrating to the satisfaction of the Responsible Authority that the relevant standards set out in AS2107 are met.

21(i) The permit holder must reimburse to the Australian Postal Corporation the cost of the construction of an acoustic barrier on the land owned by the Australian Postal Corporation and used for a regional mail distribution centre at the corner of Oakover Road and Railway Place to a maximum value of $200,000 plus GST so that the Mail Centre complies with State Environment Protection Policy N-1 in relation to the approved residential development. The permit holder must only reimburse the Australian Postal Corporation if the erection of such acoustic barrier is completed prior to the commencement of the occupation of the approved residential development. The reimbursement of funds to the Australian Postal Corporation must occur within two months of the permit holder being advised by the Australian Postal Corporation that the erection of the acoustic barrier has been completed.

21(ii) Alternatively, with the approval of the Australian Postal Corporation the permit holder may erect an acoustic barrier on the Corporation's land at its cost (to a maximum of $200,000 plus GST) and to a design and at a location agreed with the Corporation.

Mr J Gobbo QC of counsel instructed by Mr S Stewart of Minter Ellison Lawyers.

Mr I Pitt SC of Best Hooper solicitors for M1 Preston Pty Ltd.

Mr J Evans of counsel instructed by Deacons lawyers for Capital Finance Australia Ltd.

1 The Australian Postal Corporation ("APC") brought an Application under Section 87 of the Planning and Environment Act 1987 ("the Act") seeking cancellation of Permit No. D/33/2003 ("the Permit") issued by the Darebin City Council ("the Council") on 11 June 2003. The Permit allows the development of the land at No. 43-65 High Street, Preston ("the subject land") for a mixed use project including 83 dwellings. APC operates the Preston (or Northern) Mail Centre ("the Mail Centre land") on adjacent land to the west and north-west.

2 We issued an interim decision in relation to these proceedings on 13 April 2005. That decision set out our findings in relation to this Application. It included that we had found there to be a material mistake in relation to the grant of the Permit. We requested additional material be filed and served as follows (from paragraphs 79-80) prior to a final determination on the Application:

We are prepared to give the parties an opportunity to address the outstanding acoustic matter (as discussed in our paragraphs 66 - 68) as set out below:

•

For the Respondent M1 Preston Pty Ltd to prepare a report by an acoustic engineer demonstrating whether an internal noise level for habitable rooms in accordance with AS2107 can be achieved and, if so, a schedule of the specific measures required. That is to be based on the assumption that no acoustic barrier is erected on the Mail Centre land. Our objective is to ascertain whether the standard can be achieved without unduly compromising internal amenity.

•

For the other parties to have an opportunity to respond to this report.

With the findings of a report in the above terms available, we also seek comment from the parties on conditions in the following terms, as well as provide the parties with the opportunity to draft such possible conditions (an opportunity that had been requested by them):

•

A revised Condition 4 that may address the report referred to in paragraph 79 above and/or to require the following:

o Prior to the commencement of the development, the permit holder must submit to the Responsible Authority a report prepared by a suitably qualified and experienced acoustic engineer detailing works required to achieve an internal noise level for all habitable rooms within the development to an internal sound level in accordance with AS2107.

o That once the report is to the satisfaction of and approved by the Responsible Authority, the recommended sound attenuation works must be completed and, on completion of these works, a report prepared by a suitably qualified acoustic consultant must be submitted to the Responsible Authority demonstrating to its satisfaction that the required level of noise attenuation has been achieved by the measures undertaken.

•

A condition(s) addressing acoustic attenuation measures on the Mail Centre land should APC wish to implement them in terms such as:

o The condition is triggered by the commencement of the approved development on the subject land.

o Require the permit holder to make a financial contribution to APC for attenuation works undertaken by APC on its land.

o We are open to the suitable use of a bank guarantee, given that the Respondent is in receivership.

o Set a time limit on the ability of APC to undertake the acoustic attenuation works with a contribution by the permit holder (to a specified maximum limit) that must be implemented prior to the commencement of the occupation of the approved development thereby allowing considerable time for the attenuation works to be done given the size of the construction project.

On that point, we expect that the balconies and windows facing into them can be dealt with to achieve the specified levels in AS2107. The critical matter is for us to be satisfied that the levels referred to in AS2107 (eg. maximum level of 40dB(A) Leq for sleeping areas) could potentially be achieved on the following terms:

•

without any barrier being erected on the Mail Centre land;

•

allowing reasonable internal amenity such as some form of open-able windows for a bedroom or living room where that room faces directly toward the Mail Centre with no intervening balcony.

More broadly, we need to be satisfied that all habitable rooms within the development can meet AS3671 including the maximum levels referred to in AS2107 to deal with the range of noise sources that include the operations of the Mail Centre, railway noise and tram noise. If the matter set out in the above paragraph can be addressed we expect that other rooms could also be appropriately treated to achieve this level.

We have decided to seek this information now, rather than by an amended condition, to ensure it is achievable, given that we only have the oral evidence of Mr Growcott that levels close to this standard could be achieved.

If we can be satisfied on the point set out at paragraphs 66-68, then the barrier would not be needed to achieve a reasonable internal noise environment for dwellings in accordance with AS2107, regardless of whether SEPPN-1 legally applies. However, a barrier or like works would be desirable to reduce noise emissions to a level that is consistent with the type of standard applied by SEPPN-1 and thereby further reduce the potential for conflict between adjoining activities and complaints from future occupiers of the approved dwellings.

5 In response to our interim decision, further written submissions and report were filed as follows:

•

A report by Mr D Growcott dated 28 April 2005, filed by Best Hooper solicitors.

•

A written submission by Ms Lane for the City of Darebin, dated 12 May 2005.

•

Two reports filed by Minter Ellison lawyers, being a report by Ms E Hui and a report by Mr R Burton.

6 Ms Lane and Minter Ellison requested that the matter be listed for hearing. A resumption date was set for 3 June 2005 and that was adjourned following a request by Best Hooper. The adjournment was granted with the consent of parties who participated in the March 2005 Hearing.

7 Oral submissions were made by all parties at a resumed Hearing on 24 June 2005 as well as written submissions that were tendered by Ms Lane and Mr Pitt SC. All authors of the supplementary acoustic reports were present at the resumed Hearing (Mr Growcott, Ms Hui and Mr Burton). We only sought for Ms Hui to be called to clarify one matter relating to the height of balcony screens. No other party sought to cross-examine the authors.

8 All of the written and oral submissions, reports and evidence filed by all parties throughout the whole proceedings have been taken into account in reaching a final decision.

9 Our interim decision explained the basis on which we reached a conclusion that the proposal, as approved by the Council and relying on the design shown on the endorsed plans (endorsed on 4 December 2003) may with some modifications and/or attenuation works meet a satisfactory internal design standard that we have adopted as being AS2107.

10 On that basis, we stated that we would direct amendments to the Permit but not cancel the Permit for reasons we set out.

11 Our main concern has been to ensure that the internal amenity of approved units with bedrooms and living rooms facing west toward the Mail Centre would be acceptable. That was because of possible conflict between residents and the Mail Centre's operations which peak and are noisiest early in the morning (eg. 4/4.30am - 7/8am) and in the early evening. That could potentially give rise to nuisance to residents and place pressure on the Mail Centre to curtail its operations.

12 The endorsed plans show the following in relation to facing west windows:

•

At the first floor, six units have bedrooms, living rooms and/or balconies facing west. All windows in the unit face west except in Unit 1.03 where there is also a south-facing window to one room.

•

At the second floor, five units have bedrooms, living rooms and/or balconies facing west.

•

Each of third and fourth floors has two units with all windows facing west plus two units that have some west-facing windows.

13 We have not referred to the ground floor as there would be fencing protecting this interface although it should be to an acoustic standard.

14 We were also referred to another set of plans received by the City of Darebin on 9 September 2004 that are not endorsed under the Permit but Mr Pitt indicated that the Respondent may potentially seek to do so. The main change as relevant to the current proceeding is that several units are sought to be deleted from the upper-most levels.

Can AS2107 be Achieved with Acceptable Internal Amenity?

15 First we refer to the balconies that would provide some protection to west-facing living areas at levels 1-4 of the building. We are persuaded that a balustrade treatment could be designed to enable the living areas to meet the standard set out in AS2107, that is a range of 35-45LAeqdB(A) from satisfactory to maximum with doors open. The evidence of Ms Hui was that a continuous glazed screen of 2.1 - 2.4 metres around the perimeter of the balcony plus the installation of sound absorptive material to the underside of balconies would achieve AS2107. Orally she said that it may be possible to reduce this to 1.8 metres based on detailed investigations.

16 Mr Evans expressed concern about the potential of balcony balustrades to impact on internal amenity. We agree with him but the detailed design process could achieve a lower balustrade as suggested by Ms Hui.

17 In addition, we think that other design options could be considered to reduce impacts on internal amenity such as a balustrade form like the acoustic barrier discussed by Mr Growcott for the Mail Centre land ie. a vertical upstand with a racked back section rather than a wholly vertical screen. In addition or alternatively, a balustrade could be fully or partly acoustic glazing thereby maintaining light access and outlook. Such changes would produce consequential modifications to elevations.

18 At the third and fourth floors, similar balcony treatments could protect west-facing bedrooms and living rooms in Units 3.04, 3.06, 4.04 and 4.06 with the opportunity for a new south-facing window to be added to each of Units 3.03 and 4.03. There remains some doubt that some of the bedroom windows would achieve AS2107 based on the evidence before us but the living rooms would be able to be compliant. A permit condition can require internal noise levels compliant with AS2107 to be confirmed.

(ii) West-Facing Habitable Room Windows with No Intervening Balcony

19 In relation to west-facing bedroom windows at levels 1 and 2, Mr Growcott's evidence was that AS2107 could be achieved with windows closed and well sealed. Through the resumed Hearing this was clarified to mean that the windows would be openable but when closed with good seals a level of 30LeqdB(A) would be achieved based on nominated glazing types. That would meet AS2107 and forced ventilation would need to be provided to these bedrooms. With the windows open, AS2107 would not be met. Ms Hui addressed the same point by specifying that bedroom windows would need to be unopenable for AS2107 to be met.

20 We have difficulty accepting that the amenity outcome is reasonable for this number of potentially affected occupants as it gives no option for a window to be open at night should a resident so desire. We think that option should be available and it can be achieved by adding an openable window facing into the balcony of the same unit. Such a window could be a "slot" form that is slim and elongated or alternatively placed at a high level to ensure that sufficient wall space is retained to the bedroom. These openable windows would have protection given their orientation as well as the balcony treatments that we have discussed above. We believe on the evidence that such a solution should be able to comply with AS2107.

21 We do not consider this type of change to the plans should cause a real or significant detriment to an occupant or fail to be "just and fair". Hence, a condition can be drafted to provide options to achieve this end, bearing in mind that additional window forms could be discussed with the purchasers to ascertain their preference. That would affect 10 units at the first and second levels. Unit 1.03 has this same option and also for a new window to be inserted in the southern elevation.

22 At the third and fourth levels, two units would have no option for a non-west-facing window, being the two bedrooms to each of Units 3.08 and 4.08. The latter has the option of an openable skylight or the like and that same alternative could always be contemplated for Units 404, 405 and 406. Unit 308 has no solution that is obvious to us without more substantial changes to the layout and it seems that it would require non-openable windows to be compliant with AS2107.

23 We next refer to the question of an acoustic barrier on the Mail Centre land and SEPPN-1. In our interim decision, we made comment on the desirability for an acoustic barrier even if the standards of AS2107 could be met. That was on the basis that the evidence before us was that the Mail Centre would breach SEPPN-1 if the units in the form proposed were erected even with attenuation works to the units being implemented. That remains the case in relation to some aspects of the development.

24 At the resumed Hearing, Mr Gobbo stated that APC had not determined if it would seek for a barrier to be erected although it should be APC's choice as to whether it would proceed. Mr Pitt responded that APC has had long enough to decide whether it would want a barrier and has not indicated that it would undertake ameliorative works. Thus M1 Preston would seek the Tribunal's permission pursuant to Section 114(3) of the Victorian Civil and Administrative Tribunal Act 1998 to withdraw its open offer dated 7 March 2005. That offer was $200,000 plus GST. Costs of acoustic barriers can vary widely but the evidence before us was that a single wall with raked upper section may cost around $200,000 but possibly be higher.

25 We are not persuaded to grant leave for the open offer to be withdrawn.

26 We find that an acoustic barrier on the APC land is warranted to assist to achieve a reasonable noise environment for occupants of the proposed dwellings. Although bedrooms may be AS2107 compliant with west-facing bedroom windows closed the same is not the case if such a window was to be opened. There is also the likelihood that the achievement of AS2107 will be to levels at the upper end of the available range, ie. at the "maximum" level rather than the "satisfactory" level potentially still giving rise to nuisance as noted in Mr Burton's evidence. Moreover, SEPPN-1 would not be met even with some of the changes to the plans we have discussed above and further the introduction of an acoustic barrier would assist to achieve compliance for external balconies that we have not canvassed above. We therefore consider there to be a just and fair basis to require the permit holder to facilitate APC being compliant with SEPPN-1 given the imposition of a large residential complex into an otherwise predominantly (but not wholly) non-residential setting.

27 That is despite a barrier causing some disadvantage to APC.

28 It could fairly be asked why direct changes to the plans if an acoustic barrier is to be erected? Because we have no guarantee that a barrier will be erected as no consent to such works on APC land has been given by APC. We have no power to direct APC to give its consent.

29 We heard oral submissions from Mr Gobbo, Mt Pitt and Mr Evans as to whether a condition requiring the erection of a barrier would be lawful based on recent amendments through the Planning and Environment (Development Contributions) Act 2004 that address development contributions. Those amendments are important to a consideration as to whether a contribution can still be directed to be sought by way of a permit condition in the circumstances of this case. The amendments have been introduced since our interim decision. It was common ground between the parties that the relevant section is Section 62(5) of the Act that requires:

In deciding to grant a permit, the responsible authority may -

(a)

......

(b)

include a condition requiring specified works, services or facilities to be provided or paid for in accordance with an agreement under section 173; or

(c)

include a condition requiring specified works, services or facilities that the responsible authority considers necessary to be provided on or to the land or other land as a result of the grant of the permit be -

(i)

provided by the applicant; or

(ii)

paid for wholly by the applicant; or

(iii)

provided or paid for partly by the applicant where the remaining cost is to be met by any Minister, public authority or municipal council providing the works, services or facilities.

30 There are four questions arising in relation to these provisions that require determination to enable a finding as to whether we can include a condition requiring the Respondent to pay for an acoustic fence on the APC land[1]:

•

Is an acoustic barrier "specified works, services or facilities"?

•

Is the acoustic barrier "necessary" to be provided on other land?

•

Would the whole cost be provided by the applicant?

•

Is APC a public authority if it is required to make a part-payment for an acoustic barrier?

31 In relation to these criteria, the Tribunal finds as follows:

•

There is no definition of "facility" in Section 4 of the Act however "facility" is defined in the Macquarie Dictionary as (inter alia) "a building or complex of buildings, designed for a specified purpose". "Building" is defined in the Act as including a structure. Using common language and the Act definition of "building" an acoustic barrier is a specified facility.

•

"Necessary" is defined in the Macquarie Dictionary as (inter alia) "requisite" or "required". The acoustic barrier is necessary as one way in which APC would meet SEPPN-1. If SEPPN-1 must be met by law (that is in dispute between APC and the Respondents) then the works could be fairly regarded as "necessary", as the evidence before us is that the works that changes to the plans that we can require would not bring the Mail Centre into compliance with SEPPN-1. If APC is not required by law to comply with SEPPN-1, but seeks to as a company policy, then there is a case to argue that the works are not necessary; it is a matter of choice by APC. In our interim decision, we sought to be satisfied that AS2107 could potentially be achieved without a barrier on the Mail Centre land while also achieving an acceptable level of internal amenity by allowing windows to be opened. We have been substantially satisfied on this point subject to changes to window positions and modifications to balcony balustrades but not wholly so. We consequently find that it is necessary for an acoustic barrier to be erected on the Mail Centre land as a direct consequence of the residential development. Therefore, the second criterion is met.

•

The whole cost of a "basic" acoustic barrier could be met by M1 Preston in line with the amount referred to in its offer of $200,000 plus GST. Thus we are satisfied that the second criterion is met. However, if APC sought a more expensive option, then a contribution could still be made as we are satisfied on the last criterion as discussed next.

•

APC is a public authority for the purposes of the Act. Section 3 of the Act defines a "public authority" as including a body established for a public purpose by or under any Act. It thus applies to APC. Section 17(2) of the Interpretation of Legislation Act 1984 specifies that such a reference includes a reference to a Commonwealth Act and an Act or Ordinance of another State or of a Territory. Thus the final criterion is met should APC seek to fund a structure that is more expensive than the contribution the permit holder will be obliged to make.

32 Therefore, as the four criteria are met we will impose a condition requiring an acoustic barrier on the APC land to be funded by the Respondent.

33 We do not think that the offer should remain open-ended. The terms will require APC to be reimbursed for such works if the works are completed prior to the occupation of the approved development presumably with production of the necessary receipts or documentation.

34 If APC does not take up this initiative by that time, then the contribution will be lost. In such a circumstance, APC would be non-compliant with SEPPN-1 but nearly all habitable rooms within the approved development would be designed to a level that complies with AS2107 (albeit the upper end of the standard).

35 We will also provide for an alternative approach that allows the Respondent to erect the barrier (to the same maximum contribution) if agreed with APC.

36 In our interim decision, we sought information to ascertain whether the proposed development could be made compliant with AS2107 while achieving an acceptable level of internal amenity without an acoustic barrier on the Mail Centre land. If so, we said that we would be persuaded to amend Permit D/33/2003 but not cancel that Permit.

37 In short, we have not been wholly satisfied on this matter. The additional evidence and submissions have persuaded us that:

•

openable west-facing habitable room windows at levels 1-4 of the building would not be compliant with AS2107.

•

the development could, however, be entirely compliant with AS2107 if non-openable windows were used but we find that would unreasonably compromise the internal amenity of the affected units.

•

modifications to the plans can be made by the inclusion of an additional openable window so that the west-facing windows can be closed and habitable rooms therefore not reliant on forced ventilation. We believe this could achieve AS2107. Most but not all affected units can be treated this way.

•

balconies can be treated to provide acoustic protection for living rooms facing toward them but confirmation is required that bedrooms would achieve AS2107. We expect that this can be achieved.

38 In the circumstances set out above, there is a sufficiently high degree of compliance with AS2107 that we do not regard it as just or fair to cancel Permit D/33/2003.

39 However, as the outcomes do not result in the whole of the building (insofar as relevant to these proceedings) being compliant with AS2107, we have been persuaded that a contribution by the Respondent to the erection of an acoustic barrier on the Mail Centre land is just and fair. We have also found that the imposition of such an obligation on the permit holder meets the tests at Section 62(5) of the Act.

40 If we had the power to require, or APC's consent to erect, an acoustic barrier on the Mail Centre land to meet SEPPN-1 standards then the plan changes may have been avoidable (as a higher level of acoustic protection would be achieved by an acoustic barrier). But we do not have such power or consent.

41 For the above reasons, we will direct amendments be made to Permit D/33/2003.

[1] To the extent that these are questions of law, the findings are made by Member Martin alone.