Victorian Civil and Administrative Tribunal|2005-11-25

Begonia Pty Ltd v Frankston CC [2005] VCAT 2500 (25 November 2005)

Connolly International Pty Ltd and Strasburger Enterprises (Properties) Pty Ltd

Lot 2 on Plan of Subdivision No. 328568P being the land in Certificate of Title Volume 10178 Folio 523.

A. In proceeding Begonia Pty Ltd v. Frankston City Council and others (P2742/2005) in relation to the currently approved development plan being the plan entitled:

"SITE DEVELOPMENT

PROPOSED DEVELOPMENT Cnr. BALLARTO ROAD & McCORMICKS ROAD,

CARRUM DOWNS FOR BEGONIA PTY. LTD."

being the plan 1557-TPAO1 B, job 1557, dated 9 September 2005 of The Ellis Group Architects; alterations thereto are approved to accord with the access arrangements depicted in plan 5796T 1B dated 16/11/05 of "Ratio" and entitled "CARRUM DOWNS SHOPPING CENTRE PROPOSED ACCESS ARRANGEMENTS."

B. Begonia Pty Ltd is directed to prepare and present to the responsible authority for endorsement a composite plan in accordance with order A above based on plan 1557-TPA01 B but incorporating the access arrangements depicted on plan 5796T 1B.

C. By consent application for review P817/2005 is granted. A permit is granted for the use and development of the land for a shopping centre including shops and a convenience restaurant being a shopping centre having a shop leasable floor area exceeding 3500 square metres with associated car parking and landscaping, the removal of native vegetation and a reduction in the car parking requirement pursuant to cl.52.06 of the Frankston planning scheme and with the creation of access from a Road Zone Category 1 (Ballarto Road and McCormicks Road) and associated works generally in accordance with the layout plan submitted on drawing 1557.WD.A02, issue P, dated 8 November 2005 and elevation details shown on drawing NO. 1557-TPA03A, dated 9 September 2005 being plans prepared by The Ellis Group Architects and with the proposed access arrangements to accord with plan 5796T1B dated 16 November 2005 prepared by Ratio Consultants and the endorsed plans hereafter provided for, and subject to the following conditions:

1. Before the use or development starts amended plans must be submitted to and approved by the responsible authority. The plans are to be drawn to scale with dimensions and 3 copies are to be provided. When approved these plans will be endorsed as evidence of their approval and will become the endorsed plans in relation to this permit. The plans are to be generally in accordance with the plans referred to in the words granting permission above but modified as follows:

a. include a landscape plan in accordance with condition 2 of this permit;

b. show all pedestrian crossing ramps within the car park and 'disabled' parking spaces to be constructed in accordance with Disability Discrimination Act standards;

c. provide a Drainage Management Plan that includes:

(i) provisions to ensure that any proposed drainage infrastructure should not impact on the open space values, including the native vegetation or built assets, and

(ii) provision for gross pollutant traps to be provided on site, prior to any connection to the local or regional drainage system, with a notation that these are to be maintained by the applicant or their successor;

d. where possible, incorporate design features that encourage use of the facility by people with limited mobility including:

(i) provision of seating with arm rests along path of travel from pedestrian entry at Ballarto and McCormicks Roads to the shops,

(iii) regular placement of ramps along the central path to allow wheeled access on and off the path so that customers in parking bays can use the path and with ramped access not to be blocked by parked cars,

(v) provision of a public drop-off and pick up areas close to the main entry,

(vii) the shared bicycle/pedestrian path at the rear of the service station should be raised and not incorporated into the service station tarmac area, for the safety of pedestrians using that path;

e. incorporate the recommendations of a consultant specialising in disability access issues following a review of plans to ensure that they are compliant with the Disability Discrimination Act with matters requiring attention to include:-

i continuous paths of travel,

ii continuity with external paths,

iii traffic issues,

iv safe paths of travel from cars,

v disability accessible parking bays (DAPBs),

vi use and location of tactile pavers (TGSMs),

vii toilets,

viii loading bays,

ix public transport and

x taxis drop off/pick up zone for elderly;

f. the realignment of the northbound through lane and left-turn deceleration lane in McCormicks Road to provide safe traffic conditions;

2. Before to the commencement of any buildings or works:

2.1 a landscape plan with all relevant specifications must be approved by the Responsible Authority and when approved will be endorsed as evidence of its approval and will then become part of the endorsed as part of this permit. The landscape plan is to be prepared by a suitably qualified and experienced person or firm and must incorporate:

a. a survey of all existing vegetation and natural features;

b. identification of the species of all trees to be retained or removed;

c. the area(s) set aside for landscaping, including a 5.0 metre wide buffer to the north and west boundaries;

d. a schedule of all proposed trees, shrubs and ground covers, which must include the location and size at maturity of all plants, the botanical names of such plants and the location of all areas to be covered by grass, lawn or other surface material as specified;

e. retention of the large eucalyptus tree adjacent to the eastern boundary of the McCormicks Road car park and provision of measures to ensure protection of the tree during construction and thereafter in accordance with the recommendations of a qualified arborist;

f. additional street tree plantings where appropriate and not affected by future road widening works;

g. details of paving, retaining walls, fence design (including any acoustic fence) and other landscaping works, including any areas of cut and fill;

h. location and details of street furniture and seating and water features to be provided within communal open space areas;

j. the design of the landscaping for the areas available to the general public must demonstrate proper regard for the special needs of shopping centre patrons, including older and disabled persons.

2.2 Landscaping must be undertaken in accordance with the endorsed plans and specifications to the satisfaction of the Responsible Authority.

2.3 A process for the transfer of any land within the site's title boundary to the ownership of Council or VicRoads, whichever is appropriate, must be commenced for land which is shown on the endorsed plans for road widening purposes required as a result of the subject development.

3. Except with the further consent of the Responsible Authority all landscaping in accordance with the approved landscape plan must be completed prior to the initial occupation of any building.

4. All fencing must be maintained to the satisfaction of the Responsible Authority.

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

6. a. Prior to occupation of the buildings approved under this permit, the applicant is to:-

i transfer to Council the 2400 square metre area of land shown as Proposed Council Pre-School and Infant Welfare Centre; and

ii transfer to the Council or the Roads Corporation as appropriate the land designated as road widening in the Section 173 Agreement dated 23rd September, 1992;

b. All costs associated with the transfers of land referred to above must be borne by the operator of this permit.

7. Without the further written consent of the Responsible Authority, the number of people that may be seated in the convenience restaurant must not exceed 102 persons.

8. Noise emissions must not exceed the requirements set out in the State Environment Protection Policy (Control of Noise from Commerce, Industry and Trade) No. N-1 to the satisfaction of the Responsible Authority.

9. Unless with the further consent of the Responsible Authority loading or unloading and delivery of goods must not occur between the hours of 8:00 pm and 7.00am on any day.

10. Air conditioning plant, compressors and exhaust fans must be located to the satisfaction of the Responsible Authority so as to minimise adverse amenity impacts on abutting and nearby residential properties.

11. Any clearing or construction activity associated with the development of the subject land should be carried out in accordance with EPA publications Construction Techniques for Sediment Pollution Control (Publication 275) and Environmental Guidelines for Major Construction Sites (Publication 480) to the satisfaction of the Responsible Authority.

12. Litter abatement treatments (Gross pollutant traps) must be installed on site prior to the connections to the local or regional drainage system, and then maintained to the satisfaction of the Responsible Authority.

13. Detailed design plans (including drainage computations) of the internal stormwater drainage system including drainage outfall are to be submitted for approval by the Responsible Authority prior to commencement of development construction.

14. Before the buildings hereby permitted are occupied, the areas set aside for parked vehicles and access lanes as shown on the endorsed plans must be:-

a. constructed to the satisfaction of the Responsible Authority;

b. properly formed to such levels that they can be used in accordance with the endorsed plans to the satisfaction of the Responsible Authority;

c. surfaced with an all-weather sealcoat or surfaced with crushed rock or gravel to the satisfaction of the Responsible Authority;

d. drained and maintained to the satisfaction of the Responsible Authority; and

e. line-marked to indicate each car space and all access lanes to the satisfaction of the Responsible Authority.

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

16. 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 must at all times take adequate precautions to the satisfaction of the Responsible Authority to maintain works to the highest public safety standards with precautions including:

a

appropriate signage to Australian Standard 1743 road works signing code of practice, and

b

the provision of adequate barricading of works, including trenches of service authorities and any other road openings sufficient to ensure public safety.

Note: All relevant permits are to be obtained from Council for works within the existing road reserves in addition to the planning permit.

17. During construction of the development hereby approved, trees/vegetation to be retained must be protected from damage to the satisfaction of the Responsible Authority as follows:-

a. adequate protection of all native vegetation by installing temporary fencing or barrier tape prior to commencement of works;

b. no construction equipment (trucks) are to be parked beneath the canopy of any trees or elsewhere on the land so as to result in compaction of the soil around tree roots or to result in any physical damage to the vegetation;

c. underground services must not be located below the drip line of any tree so as to not result in damage to tree roots; and

d. the natural ground surface level within the drip line of any tree must not be varied.

18. The development must be drained to the legal point of discharge as nominated by and to the satisfaction of the Responsible Authority.

19. The amenity of the area must not be detrimentally affected by the use or development hereby permitted, through the:-

a. transport of materials, goods or commodities to or from the land;

b. appearance of any building, works or materials;

c. emission of noise, artificial light, vibration, smell, fumes, smoke, vapour, steam, soot, ash, dust, waste water, waste products, grit or oil; or

20. External lighting must be designed, baffled and located to the satisfaction of the Responsible Authority to prevent any adverse effect on adjoining land.

21. Concrete kerbs or other barriers must be provided to the satisfaction of the Responsible Authority to prevent direct vehicle access to an adjoining road other than by a vehicle crossing.

22. The loading and unloading of goods from vehicles must only be carried out on the land to the satisfaction of the Responsible Authority.

23. Car parking spaces for the sole use of vehicles suitably identified as those of disabled persons must be provided to the satisfaction of the Responsible Authority.

24. a. Prior to the issuing of a Statement of Compliance, the Owner must enter into and comply with an agreement with Melbourne Water Corporation, under Section 269A of the Melbourne and Metropolitan Board of Works Act 1958, for the realignment of Melbourne Water's main drain that traverses the property;

b. no habitable structures (ie. dwellings), including overhangs and eaves are permitted to be erected over the drain/easement;

c. no domestic outbuildings, including verandahs, are permitted to be erected over the drain/easement;

d. all buildings and permanent structures including footings and eaves are to be set outside any easement or a minimum 1.5m laterally clear of the outside edge of the main drain, whichever is greater;

e. the depth of the footings must be adequate to satisfy the angle of repose relative to the drain to the satisfaction of Melbourne Water;.

f. details of any landscaping to be located within close proximity to the easement/drain are to be forwarded to Melbourne Water for approval and details to be submitted must include:

i species and locations of trees to be planted,

ii details of any hardstand areas, including paved and concrete areas,

iii details of carparking areas, and

iv fencing details including footings/posts;

g. any works to be conducted surrounding the drain must be undertaken in a manner that protects the drain;

h. any damage caused to Melbourne Water's drain must be made good at the owner's/developer's cost;

i. no services to be installed across the drain unless approval in writing has been granted by Melbourne Water;

j. for operational and maintenance purposes a 6 metre wide clear access way is required to be centrally located over the drain and all buildings/structures including footings and eaves must be set outside this zone;

k. before development, amended plans must be submitted to council and Melbourne Water addressing Melbourne Water's sub-conditions b, c, d, e, and;

l. if a new or upgraded connection to the main drain is required, a separate application must be made to Melbourne Water, providing details of the proposed location and size of the connection;

(Note: a. Prior to accepting an application, evidence must be provided demonstrating that Council considers that it is not feasible to connect to the local drainage system.

b. a Buildover Agreement will be required to be entered into with Melbourne Water for any structures located within close proximity to the main drain.)

m. no polluted and / or sediment laden runoff is to be discharged directly or indirectly into Melbourne Water's drains or watercourses;

n. prior to construction, a Site Management Plan, detailing pollution and sediment control measures, must be submitted to Melbourne Water;

o. finished floor levels must be a minimum of 300mm above the applicable flood level;

p. any new garage must be constructed with finished floor or surface levels a minimum of 150mm above the applicable flood level;

q.

any new carport, carpark or vehicle parking area must be constructed with finished floor or surface levels no lower than 350mm below the applicable flood level;

r. any vehicular and/or pedestrian access must be designed and constructed to comply with the following safety criteria associated with the applicable flood level:

iii. the Depth × Velocity product does not exceed 0.35 m2/s; and

s. upon completion of works a certified survey plan, showing levels reduced to the Australian Height Datum, must be submitted to Melbourne Water to demonstrate that Melbourne Water's sub-conditions o, p, q and r have been satisfied.

25. a. The owner of the subject land must enter into an agreement with South East Water for the provision of water supply and fulfil all requirements to its satisfaction;

b. the owner of the subject land must enter into an agreement with South East Water for the provision of sewerage and fulfil all requirements to its satisfaction; and

c. the certified Plan of Subdivision will need to show sewerage supply easements over its existing and/or proposed South East Water sewer mains located within the land, to be in favour of South East Water pursuant to Section 12(1) of the Subdivision Act.

26. a. Prior to a Statement of Compliance being issued by the Responsible Authority, the owner must provide to the satisfaction of Telstra all works for provision of Telecommunications Services to each lot created in the subdivision;

b. where any extension or alterations to Telstra's network or plant are necessitated by any proposed subdivision, the cost of such works shall be met by the owner prior to the Statement of Compliance being issued;

c. the plan submitted for certification must show details of easements and/or RCM/RIM sites which may be required by Telstra.

Conditions Required by Country Fire Authority (CFA)

27. a. Fire hydrants are to be provided to the satisfaction of CFA; and

b. prior to the commencement of construction, plans showing the location of fire hydrants are to be provided to CFA for approval.

28. Prior to the commencement of any use of the subject property as authorised by this planning permit, the applicant must complete to the satisfaction of VicRoads, all access roadworks and associated requirements as described hereafter:

a. access and intersection roadworks must be constructed in Ballarto Road and at the intersection of Ballarto Road and McCormicks Road generally in accordance with the proposed access arrangements plan numbered 5796T1B dated 16 November, 2005;

b. where the required intersection roadworks (including footpath and nature strip) lie within the subject property, a widening of the McCormicks Road reservation will be required at no cost to VicRoads or the Responsible Authority and the applicant must engage a licensed surveyor to prepare a Plan of Subdivision showing the affected land labelled "ROAD", which is to be vested in the Frankston City council upon certification of the Plan of Subdivision, without any encumbrances;

c.

traffic signals must be installed at the intersection of Ballarto Road and McCormicks Road, in general accordance with the functional layout plan to be approved under sub-condition d below, to VicRoads satisfaction. The signal installation works must be carried out by a VicRoads prequalified signals contractor to VicRoads standards and VicRoads will arrange for the supply and installation of traffic signal controllers and telecommunications and power connections, at an appropriate time, and all at the applicant's expense;

d. functional layout plans of the proposed access arrangements must be submitted to VicRoads for approval which plans must generally accord with the proposed access arrangements plan numbered 5796T1B dated 16/11/05 prepared by Ratio Consultants, and include public lighting and traffic signal layout, including the proposed signal phasing;

e. subsequent to VicRoads approval of the functional layout plans, detailed construction drawings must be submitted to VicRoads for approval which plans must be supported by a 'Detailed Design Stage' Road Safety Audit prepared in accordance with Austroads - Roads Safety Audit (Second Edition, 2002), by an independent VicRoads pre-qualified road safety auditor and carried out to the satisfaction of VicRoads;

f. prior to gaining consent from VicRoads to undertake works on Ballarto Road, the developer must:-

i provide a payment to VicRoads for all costs associated with the supply and installation of the traffic signal controllers, power and telecommunications connections;

ii provide a bank guarantee in favour of VicRoads without a termination date for a sum equal to the estimated cost of all works in Ballarto Road including signal installation costs;

iii provide evidence that the contractor has public liability insurance for at least $10 million effective for the duration of the works;

iv provide evidence that the contractor has developed and maintained a Quality Management System, Occupational Health and Safety System, Environmental Management System and a Traffic Management System, to the satisfaction of VicRoads;

v provide VicRoads with the name, address, business and out-of-hours telephone numbers of the principal roadworks contractor;

vi submit to VicRoads for approval, a Traffic Management Plan showing the proposed provision for traffic and signing for the duration of the works at least 21 days prior to the commencement of works which Traffic Management Plan must be developed in accordance with the "Road Management Act 2004, Worksite Safety - Traffic Management, Code of Practice;

vii traffic management/control must be carried out by suitably trained personnel; and

viii arrangements must be made for the contractor to contact the VicRoads Surveillance Coordinator (Telephone No. 9881 8079), at least seven 7 days prior to the commencement of works. Note: The contractor will be charged for the actual cost of VicRoads surveillance, which may be undertaken at certain key times during the works;

g. the depth and composition of new pavement must be to the satisfaction of VicRoads;

h. the standard of all materials and work must be to the satisfaction of VicRoads.

i. upon completion of all the required works in Ballarto Road, a 'Pre-Opening' Road Safety Audit must be prepared in accordance with Austroads - Roads Safety Audit (Second Edition, 2002), by an independent VicRoads pre-qualified road safety auditor and any identified problems must be rectified to VicRoads satisfaction;

29. The Ballarto Road access is to be modified by the owner at the expense of the owner and to the satisfaction of VicRoads in accordance with any written direction of VicRoads given not later than 10 years after the commencement of the use authorised by this permit. Note: The possible modification that might be required pursuant to the direction provided for in this condition is to prevent right turn exit movement.

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

•

The development and use are not started within two years of the date of this permit.

•

The development is not completed within four 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.

D. The Responsible Authority is directed pursuant to Section 85(1)(b)(ii) of the Planning and Environment Act 1987 to issue a permit in accordance with Order C above.

_________________ _______________________

RUSSELL BYARD NICK HADJIGEORGIOU

SENIOR MEMBER MEMBER

Mr. Patrick Doyle, solicitor of the firm Maddocks, appeared for the responsible authority.

Mr. M. Dreyfus QC appeared with Mr. P. Connor (both barristers) on the instructions of Deacons Solicitors for Begonia Pty Ltd.

Mr. Alan Gundry of VicRoads appeared for that body, being a referral authority in relation to this case.

Ms. Alexandra Guild, solicitor of the firm Corrs Chambers Westgarth, appeared for Connolly International Pty Ltd and Strasburger Enterprises (Properties) Pty Ltd.

Application under s.79 of the Planning and Environment Act 1987 (PE Act) for review of the failure of the responsible authority to grant a permit within the prescribed time.

Application under s.149 PE Act for a review of the refusal of the responsible authority to approve an amendment to an approved development plan.

Shopping centre including shops and convenience restaurant, access to Road Zone Category 1 with reduced car parking requirement.

Business 1 Zone and subject to a Development Plan Overlay Schedules 1 and 2 under the Frankston Planning Scheme.

At the commencement of the hearing Mr. M. Dreyfus QC sought, and obtained by consent, an amendment to the relevant permit application. The amendment was to substitute plans circulated to parties (unfortunately overlooking the clients of Ms. Gould) on 9 September 2005 for the original application plans. The plans circulated on 9 September 2005 were a set of seven plans of The Ellis Group Architects all bearing the number 1557 and the expression "TPAO" followed by an identifying number in relation to each particular drawing. The first three were site development plan, roof plan and proposed building elevations numbered 1B, 2A and 3A respectively and all dated 9 September 2005. The next three were proposed building sections, site analysis plan and neighbourhood plan numbered 4, 5A and 6 respectively and all dated 9 August 2005. The seventh plan was called "Development Plan" with the number 8A and the date 9 September 2005.

1 This case concerns a proposal for a shopping centre including shops and a convenience restaurant. It involves a reduction of the car parking that would otherwise be required and permission for access to a Road Zone Category 1.

2 Because the land is subject to a Development Plan Overlay the proposal must accord with an approved development plan.

3 The review site is on the north-west corner of the intersection of Ballarto Road (which runs approximately east to west) with McCormicks Road which runs approximately north to south.

4 It is a large site, and it surrounds, on three sides, an existing service station and convenient store with a frontage to the north side of Ballarto Road. Strasburger Enterprises Pty Ltd and Connolly International Pty Ltd are interested in the service station site as owners and occupiers thereof. They have had concerns about alterations to access which might adversely affect their interests.

5 Ballarto Road and McCormicks Road are Road Zones Category 1 in relation to which VicRoads is the referral authority.

6 At the beginning of the hearing the representatives of the parties informed us that substantial negotiations had been proceeding in relation to this case for some time and that substantial agreement had been reached between the parties. It was further indicated that they desired to have some time to continue discussions with a view, if possible, to reaching an agreement on all matters in connection with these cases, including a draft of conditions in relation to the review of the failure of the responsible authority to grant a permit. This time was granted and ultimately, when the hearing was resumed, the parties informed us that agreement had been reached and that they sought orders, effectively by consent.

7 The position in relation to the case was explained to us. This included advising us that there had been residential objectors whose properties are located across the northern boundary of the review site. However, the concerns of those objectors have, we were informed, been met in the revised permit conditions now proposed by consent.

8 We were also advised, by Ms. Guild, that her client Strasburger Enterprises (Properties) Pty Ltd has indicated a wish to withdraw from the proceedings.

9 The concerns of Strasburger Enterprises (Properties) Pty Ltd and Connolly International Pty Ltd relate to their service station located on the northern side of Boneo Road a short distance west of its intersection with McCormicks Road.

10 The modified proposal now agreed to by the various parties involves some modifications to the access arrangements, including vehicle access arrangements, in relation to the site. This revision of those arrangements now meets the concerns of Ms. Guild's clients.

11 However, the revised access arrangements are not in accord with the amended plans substituted for the original application plans at the beginning of the hearing. Furthermore, they are not in accordance with the access arrangements depicted on the existing approved development plan.

12 To achieve the proposal as now agreed to by the parties it is necessary, firstly, to amend the approved development plans. When that has been done it will possible to grant the application for review of the responsible authority's failure to grant a permit within the prescribed time and to then proceed to grant a permit (in accordance with the agreement between the parties) for the proposed use and development of the review site.

13 The second proceeding before us namely the application of Connolly International Pty Ltd in P2742/2005 seeks a review of the refusal of the responsible authority to approve amendments to the currently existing approved development plan. That proceeding gives us the opportunity to make those amendments in accordance with the consent of the parties.

14 The agreement of the parties in relation to the grant of a permit involves the question of conditions to such permit. We were provided with a fairly lengthy document setting out draft conditions agreed between the parties. Some of these conditions, no doubt, originate with the responsible authority, but others come from referral authorities such as Melbourne Water and VicRoads. Melbourne Water was not present or represented at the hearing.

15 We suppose that it is the varying origins of some of these conditions that has led to a certain degree of inconsistency of expression within the draft conditions. In relation to some of the draft conditions we would make the observation that the drafting is not so rigorous with an eye to clarity and validity as we would consider desirable. In the circumstances, and as discussed at the hearing, we propose to grant a permit in accordance with the draft conditions whilst reserving to ourselves the opportunity to revise the wording of some of the conditions. It is not a matter of changing the affect of the conditions so much as to tidy up infelicities of English expression and to achieve clarity and validity.

16 We note that some parties were loathe to quibble with these points in the interests of reaching agreement, and in the interests of avoiding delay that would be inherent in obtaining, for example, the agreement of the absent Melbourne Water to the terms of its conditions. We note also that the responsible authority would be bound to include conditions required by a referral authority. We are not so bound, and accordingly consider ourselves free to undertake the degree of tidying up of conditions referred to above and as discussed at the hearing.

_________________ _______________________

RUSSELL BYARD NICK HADJIGEORGIOU

SENIOR MEMBER MEMBER

Metropolitan Board of Works Act 1958

Environment Act 1987

Begonia Pty Ltd v Frankston CC [2005] VCAT 2500

At a glance

Court

Decision date

Source

Judgment (127 paragraphs)

Begonia Pty Ltd v Frankston CC [2005] VCAT 2500 (25 November 2005)

Parties

Legislation Cited (3)