Victorian Civil and Administrative Tribunal|2003-11-24|Before: Bamfra Nominees P

Bamfra Nominees PL v Darebin CC [2003] VCAT 1741 (24 November 2003)

Applications under S.79 of the Planning and Environment Act 1987 for review of the failure to grant permits within the prescribed time. Business 2 Zone. Clause 52.06 Car Parking. Clause 52.27 Licensed Premises. Clause 52.29 Land Adjacent To A Road Zone, Category 1, Or A Public Acquisition Overlay For A Category 1 Road. Mixed use (primarily residential) buildings. State and Local Planning Policy Framework. Zone Purposes. Neighbourhood character. Streetscape. Landscape. Massing and scale. Energy efficiency. Overshadowing. Privacy. Noise. Car parking, Traffic.

The order of the Tribunal is that the decision of the Responsible Authority is affirmed varied set aside. A permit is granted for 35 dwellings, a showroom and associated car parking at 367-373 Bell Street Preston generally in accordance with the endorsed plans and subject to the following conditions:-

1. Before the development starts, amended plans to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. The plans must be drawn to scale with dimensions and must be generally in accordance with the amended plans circulated prior to the VCAT hearing (Plans by Petridis Cornetta Architects, Drawings TPA01 to TPA11 dated 26 September 2003), but modified to show:

a. Any roof top heating or air conditioning equipment to be detailed on the relevant elevations. Any equipment, which will be visible from the street(s), must be appropriately sited and suitably screened.

b. A comprehensive scheduled of construction materials, external finishes and colours (including colour samples). Materials chosen should require minimal ongoing maintenance.

c. An increase in the areas set aside for garbage, storage and mechanical plant within the car parks, as appropriate to the size of each building.

d. Maximum ramp grades of 1:16 at 90 degrees to car spaces and 1:20 parallel to car spaces.

e. A minimum 2.1 metre height clearance to all car parking areas.

f. All columns within car parking areas to be located between 250mm and 1250mm from the open end of the car spaces, as specified in AS 2890.1-1993 Clause 5.2, to facilitate ease of access and ensure that car doors can be opened.

g. All car spaces adjacent to side walls to have a width of at least 2.7 metres.

h. All car spaces to have a length of at least 4.9 metres.

i. Provision of a one (1) metre aisle extension where car parking is located at the end of a blind aisle, to facilitate ease of access.

j. All visitor/patron car spaces associated with the residential/commercial components of the development located in proximity to the main entrance and clearly linemarked. A suitable security system must be provided to enable ease of access to all car spaces.

k. Provision of a separate numbered storage area for each dwelling within the development.

l. Provision of bicycle racks at a minimum rate of 1 rack per 5 dwellings.

m. The location of potential future advertising signs for the showroom tenancy (Note: the display of advertising signs may be subject to further planning permission).

2. The development shall be designed so that the dwellings within the development achieve an average 4 Star energy rating and the development shall incorporate water saving measures and a rainwater tank with associated reticulation for irrigation etc. all to the satisfaction of the responsible authority.

3. Prior to the occupation of the permitted dwellings the permit holder shall complete all works associated with the maximum practical extension of the right turn lane in Bell Street east. to the satisfaction of Vic Roads.

4. No construction or carrying out of buildings and works associated with the development may occur until:

a. A certificate of environmental audit is issued for the land in accordance with Part IXD of the Environment Protection Act 1970; or

b. An environmental auditor appointed under the Environment Protection Act 1970 makes a statement in accordance with Part IXD of the Act that the environmental conditions of the land are suitable for the sensitive use.

c. A copy of the certificate or statement must be supplied to the Responsible Authority.

The Environmental Audit shall be read in conjunction with this permit and all conditions of the Audit shall form part of this permit.

5. Prior to the commencement of the development a detailed Acoustic Report prepared by a suitably qualified Acoustic Engineer must be submitted to, and approved, by the Responsible Authority. The Report must include:

a. Details of measures necessary to ensure that all dwellings within the development are protected from noise associated with any on-site mechanical plant equipment, consistent with the requirements of the State Environment Protection Policy N-1.

b. Details of measures necessary (including treatment to windows if required) to ensure that internal noise levels of all habitable rooms within the development are limited to a maximum of 45dB(a) in accordance with relevant Australian Standards for acoustic control (including AS3761 - Road Traffic).

c. Details of measures necessary to ensure that dividing walls and floors between dwellings are constructed to limit noise transmission to 45 STC (Sound Transmission Class) in accordance with Part F(5) of the Building Code of Australia.

A copy of the Acoustic Report must be provided to the owner of 1 - 3 Blanche Street Preston. The development must be constructed in accordance with the recommendations of the approved Acoustic Report to the satisfaction of the Responsible Authority.

6. Before the development starts, a report to the satisfaction of the Responsible Authority prepared by a suitably qualified person confirming that the development achieves a minimum five (5) star energy rating using the Sustainable Energy Authority of Victoria `FirstRate' system (or equivalent), must be submitted to the Responsible Authority.

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

a. The development and use does not start within four (2) years from the date of this Permit; or

b. the development is not completed within two (2) years of commencement.

The Responsible Authority may extend the times referred to if a requires is made in writing before this Permit expires or within three (3) months after the expiry date.

9. Before occupation of the development, 62 car spaces must be provided in accordance with the endorsed plans to the satisfaction of the Responsible Authority. Car spaces, access lanes and driveways shown on the endorsed plans must not be used for any other purpose.

10. A sign, to the satisfaction of the Responsible Authority, must be provided directing drivers to the area(s) set aside for visitor car parking and must be located and maintained to the satisfaction of the Responsible Authority. The area of the sign must not exceed 0.3 square metres.

11. Before the development is occupied, vehicular crossing(s) must be constructed to align with approved driveways to the satisfaction of the Responsible Authority. All redundant crossing(s) or crossing opening(s) must be removed and replaced with footpath, naturestrip and kerb and channel to the satisfaction of the Responsible Authority.

12. Disabled access to the building must be provided to the satisfaction of the Responsible Authority. All work carried out to provide disabled access must be constructed in accordance with Australian Standards Design for Access and Mobility:-AS1428.1-1998, AS1428-2 1992, AS1428-3 1992 and AS1428-4 1992.

13. Prior to occupation of the development, car parking must linemarked and allocated, to the satisfaction of the Responsible Authority, as follows:

a. a minimum of 1 space per dwelling for the one and two bedroom apartments;

b. 2 spaces per dwelling for the three bedroom apartments;

c. a minimum of 7 visitor spaces for the residential component of the development;

During times when the showroom use is not operating, the car spaces set aside for their use must be made available for use by visitors of the dwellings. All visitor car spaces must be in common property.

14. The upper floor levels must be confirmed before a Certificate of Occupancy is issued by a report from a licensed land surveyor submitted to the Responsible Authority.

15. With the exception of guttering, rainheads and downpipes, all pipes, fixtures, and fittings servicing the permitted building must be concealed in service ducts or otherwise hidden from view other than with the consent of the Responsible Authority.

16. No plant, equipment, service or architectural features other than those shown on the endorsed plans are permitted above the roof level of the building without the prior written consent of the Responsible Authority.

17. The land must be drained to the satisfaction of the Responsible Authority.

18. Before buildings and works start, a detailed Landscape Plan to the satisfaction of the Responsible Authority must be submitted to, and approved by the Responsible Authority. When the Landscape Plan is approved, it will be endorsed and will then form part of this Permit. The Landscape Plan must be generally in accordance with the Landscape Concept Plan by ERM Drawing No LS1 dated October 2003 and must incorporate as appropriate:

a. a planting schedule of proposed vegetation detailing the botanical name, common name, pot size, sizes at maturity and quantities of all plants;

b. details of all surfaces including lawns, mulched garden beds and hard paving;

c. street trees within the nature strip/s adjacent to the property;

d. all constructed items including the undergrounding of overhead power lines, retaining walls, letter boxes, garbage bin receptacles, outdoor furniture, lighting clotheslines etc;

e. edge treatment between grass (lawn) and garden beds;

f. an outlined of the approved building/s including any basement, the location of entry doors, windows, gates and fences. An outline of buildings on adjoining land, including the location of windows and doors which face the site, must also be shown;

g. the location of both existing and proposed overhead and underground services. Conflict of such services with the existing and proposed planting must be avoided;

h. clear graphics identifying trees (deciduous and evergreen), shrubs, groundcovers and climbers;

The species of all proposed plants selected must be to the satisfaction of the Responsible Authority.

19. The landscaping as shown on the endorsed Landscape Plan for the subject land, and with consent of Council and/or VicTrack for any public road or railway around the periphery of the subject land must be completed to the satisfaction of the Responsible Authority before the development is occupied at such later date as is approved by the Responsible Authority in writing. No later than seven (7) days after the completion of the landscaping, the permit holder must advice Council, in writing, that the landscaping has been completed.

20. The landscaping as shown the endorsed Landscape Plan must be maintained, and any dead, diseased or damaged plant replaced in accordance with the endorsed Landscape Plan to the satisfaction of the Responsible Authority.

21. Before the dwellings are occupied, an automatic lighting system capable of illuminating all entries, vehicle accessways, car parking spaces and pedestrian walkways must be provided on the land to the satisfaction of the Responsible Authority. All external lighting of the land and buildings shall be designed, baffled and/or located to ensure that no loss of amenity is caused to adjoining and nearby land, to the satisfaction of the Responsible Authority.

22. Prior to occupation of the development, the permit holder shall arrange for the removal of waste and recycled product from the development by a private contractor to the satisfaction of the Responsible Authority. A copy of the collection arrangements must be provided to the Responsible Authority prior to the occupation of the development.

23. All security alarms or similar devices installed on the land must be of a silent type approved by the Standards Association of Australia and be connected to a registered security service.

24. The Body Corporate to be established for the development must oversee the provision of an Access Plan for the development to all tenants/owners. The Access Plan must be prepared in conjunction with Council's TravelSMART Coordinator, to the satisfaction of the Responsible Authority. (For the purposes of this condition an access plan is information in relation public transport and other related services and issues)

25. Prior to the commencement of the development plans and specifications for the construction of the right-of-way adjacent to the site must be submitted to, and approved, by the Responsible Authority. Details must include:

All roadworks must be constructed in accordance with the approved plans and specifications, at the cost of the permit holder, to the satisfaction of the Responsible Authority.

The order of the Tribunal is that the decision of the Responsible Authority is affirmed varied set aside. A permit is granted for 62 dwellings (4 with home offices), offices and associated car parking at 5-9 Blanch Street Preston generally in accordance with the endorsed plans and subject to the following conditions:-