Biviano Construction v Glen Eira CC [2008] VCAT 1196

The order of the Tribunal is that the decision of the Responsible Authority is set aside.

A permit is granted for the waiver of car parking in association with a restaurant use, buildings and works including partial demolition, signage and on premises liquor licence at 3-5 Derby Road, Caulfield East generally in accordance with the endorsed plans and subject to the following conditions:

1. Before the commencement of the development and use, 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 application plans considered by VCAT (identified as TP01-TP10) but modified to show:

1. The alterations to the shop fronts including proposed framing material, door detail and plinth to the shop front to be detailed on the plans, to the satisfaction of the Responsible Authority. 2. A schedule of construction materials, external finishes and colours, to the satisfaction of the Responsible Authority.

1. Deletion of the illuminated sign above the awning and the introduction of an illuminated sign below the parapet, to the satisfaction of the Responsible Authority.
2. When approved, the plans will be endorsed and will then form part of this Permit.
3. The layout of the site and size, design and location of buildings and works as shown on the endorsed plans must not be altered without the prior written consent of the Responsible Authority.

Note: This does not obviate the need for a permit where one is required.

1. The layout and description of the use(s) as shown on the endorsed plans must not be altered without the prior written consent of the Responsible Authority.

Note: This does not obviate the need for a permit where one is required.

1. This Permit will expire if:
   • The development and use does not start within two (2) years from the date of this Permit; or
   • The development is not completed within four (4) years of the date of this Permit.
2. The Responsible Authority may extend the times referred to if a request is made in writing before this Permit expires or within three (3) months after the expiry date.
3. No buildings or works are to be constructed over any easement or other restriction on the land or any sewers, drains, pipes, wires or cables under the control of a public authority without the prior written consent of the relevant authority and the Responsible Authority.
4. 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:-AS1428.1-2001 and AS1428.4-2002.

1. The use must operate only between the hours of;

1. Not more than 8 staff members/employees must be present on the site at any one time.
2. Not more than 90 patrons during the lunchtime period( upto 4pm) and 150 patrons during the evening period (4pm until close of business) may be present on the site at any one time.
3. At all times during the operation of the use, there must be present on the premises a person, over the age of eighteen (18) years, who is responsible for ensuring that the activities on the premises, and the conduct of persons attending the premises, do not have a detrimental impact on the amenity of the locality, to the satisfaction of the Responsible Authority.
4. The amenity of the area must not be adversely affected by the use or development as a result of the:

1. transport of materials, goods or commodities to or from the land; and/or 2. appearance of any building, works, stored goods or materials; and/or

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

or in any other way, to the satisfaction of the Responsible Authority.

1. Noise from the premises must not exceed the relevant limits prescribed by the State Environment Protection Policy (Control of Noise from Commerce, Industry and Trade) No. N-1.
2. Adequate provision must be made for the storage and collection of garbage, bottles and other solid wastes in bins or receptacles, to the satisfaction of the Responsible Authority.

All bins and receptacles used for the storage and collection of garbage, bottles and other solid wastes must be kept in a storage area screened from view, to the satisfaction of the Responsible Authority.

1. All bins and receptacles must be maintained in a clean and tidy condition and free from offensive odour, to the satisfaction of the Responsible Authority.

2. Collection of industrial waste must not cause any disturbance to nearby residential properties and must only occur between the following hours;

1. The location of the sign(s) (including the size, nature, panels, position and construction) shown on the endorsed plan must not be altered without the prior written consent of the Responsible Authority.

The Responsible Authority is directed to issue a permit in accordance with this order under the provisions of section 85(1)(b) of the Planning and Environment Act 1987.

Anthony Calthorpe, Town Planner from Urbis Planning Consultants.

1. By order dated 19 March 2008, the Tribunal directed the grant of a permit in Permit Application No GE/PP-1951/2007 under the Glen Eira Planning Scheme.

2. By letter dated 21 May 2008, the responsible authority drew the Tribunal's attention to what they suggested was a clerical error within the Tribunal's order, and submitted that the Order should be corrected by correcting the preamble to the permit to include both partial demolition and the permission for an on premises liquor licence.
3. At paragraphs 12, 24 and 25 of the reasons clear reference was made in respect to the on premises liquor licence and the extent of buildings and works to be undertaken. There was clearly no issue between the parties in respect to both the partial demolition and the on premise liquor licence.
4. Section 119 of the Victorian Civil and Administrative Tribunal Act 1998 provides for the correction of orders where, among other things, there has been a clerical mistake or omission.
5. I am satisfied that this has occurred here and find it appropriate to correct the order.