Victorian Civil and Administrative Tribunal|2010-03-22

CSTP Pty Ltd v Boroondara CC [2010] VCAT 548 (22 March 2010)

Application under Section 77 of the Planning and Environment Act 1987 (the Act) to review a decision to refuse a permit. Camberwell Station. Opportunity provided to the applicants to respond to the Tribunal's concerns about detailed design issues. Amended plans circulated. Amended plans respond appropriately to the Tribunal's concerns.

The decision of the Responsible Authority is set aside.
In permit application PP07/01237 a permit is granted and directed to be issued for the land at 2R Cookson Street, Camberwell in accordance with the endorsed plans and on the conditions set out in Appendix A. The permit allows:
- Use and development of land for shops, offices and dwellings in the Public Use Zone (Clause 36.01)
- Removal of vegetation, demolition of or removal of a building, construction of a building or construction or carrying out works under the Heritage Overlay (Clause 43.01)
- Alteration of access to land in a Road Zone (Clause 52.29)
- Construction of a building or construction or carrying out works within a Road Zone (Clause 36.04-2)
- Reduction in car parking (Clause 52.06-1).
- Variation to the provision of loading bays (Clause 52.07).

Mr Ian Pitt SC of Best Hooper Solicitors. Mr Pitt called Mr. Tim Biles, planning and urban design consultant, Message Consultants.

Mr. Chris Wren, SC, instructed by Maddocks lawyers. Mr. Wren called Mr. Rob McGauran, urban designer, of MGS.

In July 2009 we issued an interim decision[1] in which we recorded our findings that the proposed development of the Camberwell Station precinct represents an acceptable "in principle" design response to the site's physical and strategic context. We also identified a number of design, functional and built form issues which had not been adequately resolved in the application plans. In particular, the Tribunal noted that while the incorporation of a podium element in the southern, mid rise building was supported, a greater setback for the element above the podium was required. A number of issues concerning the central plaza and the access to the station platforms, internal amenity and some aspects of the proposal's configuration needed to be reassessed. We concluded that the appropriate course was to provide the applicant with the opportunity to prepare amended plans responding to the identified concerns.
We prepared an order to this effect. The Order provided the opportunity for the Council, referral authorities and objectors to make further written submissions on the amended plans.
The applicant accepted the opportunity provided and circulated amended plans in accordance with our Order. We received submissions about the amended plans from:
- City of Boroondara
- Department of Transport
- Boroondara Residents Action Group.
The City of Boroondara and the Boroondara Residents Action Group continued to oppose the grant of a permit. In addition to comments about detailed aspects of the amended plans it was generally submitted that the plans did not respond appropriately to the Tribunal's criticisms of the application plans.
A hearing to consider submissions and evidence about the amended plans was conducted on 10 March, 2010.
At the hearing the Council advised that it was content to rely on the evidence of Mr McGauran and his assessment of the amended plan's compliance with the interim decision. Mr McGauran's evidence confirmed that he was satisfied that the amended plans responded appropriately to the issues raised in the interim decision with the following exceptions:

Access arrangements to the northern platform. 2. Functionality of entrances to the southern building and additional entry points elsewhere.

Gazing and reflectivity.
We agree with the evidence of Mr McGauran and Mr Biles that other issues identified in the interim decision have been addressed by the amended plans.
At the conclusion of the hearing we advised the parties that we are satisfied that the amended plans respond appropriately to the issues raised in the interim decision and that we would direct the issue of a permit.
With respect to the issues which remained in dispute between the applicant and the Council, the parties were advised that items (a) and (c) were matters which could be appropriately resolved through permit conditions, in the event that we considered any further changes were necessary.
With respect to item (b) we commented that we were not persuaded that the provision of an alternative, additional access from Burke Road was a matter which ought to be required to be provided as a condition on the permit. We noted that we regarded the proposed access arrangements as adequate and that if during detailed design or commercial leasing negotiations an additional access point was considered necessary, sufficient flexibility is available in the building layout to provide it.
With respect to item (a) we have concluded that the access arrangements to the northern platform are acceptable. We have reached this conclusion having regard to the role of the northern platform which services outbound trains only. The size, location and configuration of the access point is sufficient to accommodate capacity requirements.[2] We are also satisfied that sightlines to the access point are sufficient to ensure that it will not be obscured or create confusion for passengers.
With respect to item (c) we have imposed a condition requiring resolution of issues associated with the impact of glare on the amenity of properties located opposite the site in Burke Road and Cookson Street.

It follows from the above reasons that it is our conclusion that the decision of the responsible authority should be set aside and a permit be granted.
In deciding the conditions to be included on the permit we have had regard to the draft conditions provided to the Tribunal by the responsible authority and the submissions and evidence of the parties in addition to the matters which arise from our reasons.

Before the development starts, amended plans to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority and the Director of Public Transport. When approved, the plans will be endorsed. The plans must be drawn to scale with dimensions and three copies must be provided. The plans must be generally in accordance with plans prepared in response to the VCAT Interim Decision of 2 July, 2009, all prepared by Wood Marsh Architecture, drawing numbers TP004 to TP007 inclusive, all Rev. D, TP008 and TP009 both Rev. E), TP010 Rev. D, TP011 to TP013 inclusive, all Rev. C, TP013.1 Rev. A, TP014 and TP015 both Rev. C, TP015.1 Rev. A, TP016 Rev. C, TP016.1 Rev. B, TP016.2 Rev. A, TP017 Rev. C, TP018 Rev. D, TP019 and TP020 both Rev. C, TP021 Rev. D, TP021.1 Rev. B, TP022 Rev. D, TP023 Rev. E, TP024 Rev. C, Materials and Finishes (September 2009), and Canopy Details (September 2009), but modified to show:
- (a) Detail on the nature of the proposed glazing treatment to the residential tower including the degree of tinting, performance and reflectivity;
- (b) Details of air conditioning to the dwellings;
- (c) Provision of automated signage at the entrance to the car park which advises delivery vehicles entering the site when the loading area is full;
- (d) The location of a sign warning motorists exiting the site onto Burke Road to be aware of pedestrians;
- (e) Details of all car park control equipment;
- (f) Details of the allocation of car spaces to the dwellings, retail, office and commuters;
- (g) Details of the provision of bicycle parking and shower and change room facilities for bicycle users associated with the commercial uses;
- (h) Increased provision of storage space for dwellings within the basement;
- (i) Details of signage giving effect to access and egress arrangements
- (j) Details of the plaza including materials and location of bins, kiosks, seating, planting, balustrading and associated facilities.
- (k) Detail of lighting, security and integrated art for the undercroft levels of the railway platforms;
- (l) Reflectivity of glazing further detailed on plans. The additional detail is required to address issues about the impact of glare on the amenity of properties located opposite the site in Burke Road and Cookson Street
As part of the ongoing consultant team, an architectural firm of acknowledged skill and experience to the satisfaction of the responsible authority must continue to be engaged to oversee the design and construction to ensure that the design quality and appearance of the approved building is realized in built form
Prior to the commencement of works in Burke Road a detailed functional layout must be submitted to VicRoads and the Responsible Authority for approval. The layout must be to the satisfaction of the Responsible Authority and VicRoads.
Subsequent to the approval of detailed functional layout, a detailed engineering layout must be submitted to VicRoads for approval. When the detailed engineering layouts are approved, an additional copy must be submitted to VicRoads for surveillance purposes. The functional layout must be implemented to the satisfaction of the responsible authority and VicRoads.
The developer must pay the full cost of all roadworks, drainage, road safety devices, service relocations, civil works, public lighting, and any other associated costs i.e. all works to be completed at no cost to VicRoads.
Prior to the commencement of the occupation of the development, a Green Travel Plan (GTP) must be prepared by a suitably qualified person to the satisfaction of the Responsible Authority and the Director of Public Transport.

(a) Describe the location in the context of alternative modes of transport and objectives for the GTP.

(b) Outline GTP measures for the development to encourage the use of alternative modes of transport including, but not limited to:

(i) household welcome packs

(ii) cycle parking and facilities available

(iii) bicycle pool (if provided)

(iv) GTP management

(v) monitoring & review.

Once approved the GTP must:
- (a) form part of the planning permit; and
- (b) form part of any ongoing Management Plan for the site; and

to ensure the GTP continues to be implemented by residents / owners to the satisfaction of the Responsible Authority.

Any damage to public transport infrastructure must be rectified to the satisfaction of the Director of Public Transport at the full cost of the permit holder.
Prior to the occupation of the development all works outlined on the approved plans for tram and passenger access to Camberwell Station must be completed to the satisfaction of the responsible authority in consultation with the Director of Public Transport at the full cost to the permit holder.
All development must accord with the endorsed plans. Any alterations must be approved in writing by the Responsible Authority.
Floor levels shown on the endorsed plans must not be altered or modified without the prior written consent of the Responsible Authority.
Prior to the commencement of development an acoustic report must be prepared by a suitably qualified person and submitted to the Responsible Authority for approval. Such report must identify and set out recommendations and actions required to minimise detrimental acoustic effects on the amenity of the dwellings. This report must address the issues raised in Table 8 and Appendix D of the 'Noise and Vibration Impact Assessment Planning Report' prepared by Marshall Day Acoustics dated 31 March 2009. The recommendations and actions contained in the report must be implemented to the satisfaction of the Responsible Authority, unless with the further written approval of the Responsible Authority.
Prior to the commencement of development a wind effects report must be prepared by a suitably qualified person and submitted to the Responsible Authority for approval. Such report must identify and set out recommendations and actions required to minimise detrimental wind effects as a result of the design of the proposed development, including on both proposed buildings, the public plaza and beneath the northern railway platform undercroft. The recommendations and actions contained in the report must be implemented to the satisfaction of the Responsible Authority, unless with the further written approval of the Responsible Authority.
All trees to be retained shall be identified by the builder and Landscape Architect at the commencement of works. The identified trees shall be fenced off with sturdy fencing constructed to a minimum height of 1.5m using chain mesh strung between star pickets. The aim is to create an 'exclusion zone' beneath these trees. This fence will deter the entry of heavy equipment, vehicles, workers and/or the public into this Tree Protection Zone. At least two laminated, A3 size signs are to be attached to the tree protection fencing and are to clearly state "TREE PROTECTION ZONE. ENTRY RESTRICTIONS APPLY. DO NOT REMOVE FENCE FOR ANY REASON. CONTACT BUILDING IF ENTRY IS REOUIRED" and is to have the builder's (or appointed site foreman) and consulting arborist's contact details. This fence is to be established prior to any heavy machinery entering the site.
The exclusion zone shall be established at or near the perimeter of the tree branches (i.e. the further away from the trunk the better the protection offered). The exclusion zone is to be established no closer to the trunk than the distance specified as the Tree Protection Zone.
Where a root diameter of 20mm or greater is encountered during site works, these shall be cleanly pruned by hand, but never torn from the ground by machinery.
A suitably trained and experienced arborist shall carry out works using acceptable horticultural practices, and shall be used to undertake all root and branch pruning requirements.

Throughout building works they shall also undertake regular inspections of trees and carry out remedial works as required ensuring frees retain good health and vigour. Such works shall include but not be limited to irrigation, feeding, aeration, mulching and 'dead-wooding'.

Should services pass through the root zone of trees to be retained on the site, then they must be located in trenches augured beneath the root zone. i.e. at a minimum depth of 1200mm.
During the construction process, all areas beneath the canopies of the trees to be retained must be covered by a 100mm layer of coarse wood chip or other like material. This layer will help minimize the affects of compaction.
If temporary access is required through a root zone area, this must be carried out using sheets of heavy plywood, or like protection, but this must not be considered for long term use.
There will be no open trenching in the root zone of trees. This also implies no strip footings. Pier and beam construction would be essential in Tree Protection Zones, with beams laid at ground level and piers to be engineered to be as think and widely spaced as possible.
Any services required to be installed underground will be bored and utility authorities are to make use of a common trench where possible. This is the responsibility of the site foreman.
Any vegetation located within Tree Protection Zones is to be removed by hand so that no heavy machinery enters into TPA. Any trees to be removed that have canopies interlocking with trees to be retained are to be removed by a qualified arborist who will ensure that interlocking branches are removed first and other protection measures are undertaken.
No fuel, oil dumps or chemicals shall be allowed in or stored on the Tree Protection Zone. The servicing and refueling of equipment and vehicles must be carried out away from the root zones.
No storage of materials, equipment or temporary buildings will take place over the root zone of any trees.
No fixtures of any sort shall be attached to any tree for any reason.
If damage of any sort shall be attached to any tree for any reason.
If damage of any sort occurs to any tree or large shrub on site, the appointed arborist must be contacted to take immediate remedial action.
Prior to the commencement of building works on site the appointed builder (or site foreman) and staff shall have an hour-long briefing on tree Protection on-site along with the application of these Tree Protection Requirements.
Before the development starts, amended landscaping plans to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the plans will be endorsed. The plans must be drawn to scale with dimensions by a landscape architect or suitably qualified and experienced person or firm and three copies must be provided. The plans must be generally in accordance with the plans prepared by John Patrick Pty Ltd (Drawing No. 08-329LP - VCAT Dated March 2009) but amended to show:
- (a) A schedule of all proposed trees, shrubs and ground cover which will include the location, number, size at the time of planting, height and spread at maturity of all plants, the botanical name of such plants and the location of all areas to be covered by grass, lawn or other surface material as specified;
- (b) A schedule of all trees proposed to be removed or lopped;
- (c) Paving, retaining walls, fence design details, and other landscape works including areas of cut and fill and finished site levels;
- (d) The landscape concept (including fixtures and fittings, including surfacing, seating and lighting details) within the plaza.
An automatic in-ground sprinkler system must be installed in all landscaped areas, to the satisfaction of the Responsible Authority.
Landscaping as shown on the endorsed landscape plan must be carried out and completed to the satisfaction of the Responsible Authority prior to the occupation of the development or at some other time which is to the satisfaction of the responsible authority.
All landscaping works, shown on the endorsed landscape plan must be maintained and any dead, diseased or damaged plant replaced, all to the satisfaction of the Responsible Authority.
Before a building permit is issued, an Environmentally Sustainable Design Report which is to the satisfaction of the Responsible Authority must be prepared by a suitably qualified expert and submitted to the Responsible Authority. The report must address the ESD principles proposed for the site including but not limited to, energy efficiency, water, waste and building materials. Once approved, the report will be endorsed to form part of the permit.
Prior to the occupation of the development hereby approved, a car parking management plan to the satisfaction of the Responsible Authority prepared by an appropriately qualified traffic consultant must be submitted to and approved by the Responsible Authority. When approved, the car parking management plan will be endorsed and form part of this permit. The car parking management plan must include (but is not limited to):
- (a) the allocation of car parking spaces to residents, occupants, customers, visitors and other car space users;
- (b) the category of persons allowed to use car spaces, and the control of access to car spaces;
- (c) fees (if any) for the use of car spaces by persons other than residents, occupants of commercial tenancies and their employees;
- (d) car park area security including lighting;
- (e) traffic management devices and signage (including automated signage) for the safe and efficient use of the car park;
- (f) measures for the management of the car park in accordance with this plan;

The plan must not be revised without the consent of the Responsible Authority. The car park area must be conducted in accordance with the provisions of the plan to the satisfaction of the responsible authority.

All signs, mirrors, line marking and traffic control equipment must be maintained to the satisfaction of the Responsible Authority.
The area set aside for the parking of vehicles, together with the associated access lanes as delineated on the endorsed plan must:
- (a) be provided and completed to the satisfaction of the Responsible Authority prior to the commencement of the development hereby permitted;
- (b) thereafter maintained to the satisfaction of the Responsible Authority;
- (c) be made available for such use at all times and not used for any other purpose;
- (d) be properly formed to such levels that it can be used in accordance with the endorsed plan; and
- (e) be drained and sealed with an all weather seal coat.
All new vehicular crossings must be constructed in accordance with Council's standard vehicular crossing specification.
Any existing vehicular crossing made redundant by the building and works depicted on the endorsed plans must be broken out and re-instated as standard footpath and kerb and channel to the satisfaction of the Responsible Authority and at the permit holder's expense. Any new vehicular crossings must be constructed to Council's standard vehicular crossing specification.
Prior to the commencement of the development a Management Plan for the ongoing management and maintenance of the public spaces and the landscaped area adjacent to Cookson Street created by the development must be submitted to the Responsible Authority for approval. The Management Plan must also make provision for the prompt removal of graffiti. The requirements of the Management Plan must be implemented to the satisfaction of the Responsible Authority.
Prior to the commencement of the development hereby approved, a waste management plan to the satisfaction of the Responsible Authority must be submitted to, and approved by, the Responsible Authority and implemented. When approved, the waste management plan will be endorsed and form part of this permit. The waste management plan must include but is not limited to:
- (a) location of the storage of waste including an area appropriately screened from general view that can be maintained in a clean and tidy condition free from offensive odours;
- (b) location of all waste collection points including recycling for the commercial and residential uses;
- (c) details of collection and recycling services;
- (d) frequency of collection; and
- (e) location of collection points and details of collection.

The Waste Management Plan may be amended from time to time with the consent of the responsible authority.

Alarms associated with the commercial premises must be directly connected to a security service and must not produce noise beyond the premises.
Outdoor lighting must be designed, baffled and located to the satisfaction of the Responsible Authority to prevent any adverse effect on nearby land.
The amenity of the area must not be detrimentally affected by the use or development, through:
- (a) the transport of materials, goods or commodities to or from the land;
- (b) the appearance of any buildings, works or materials;
- (c) the emission of noise, artificial light, vibration, smell, fumes, smoke, vapour, steam, soot, ash, dust, waste water, waste products, grit or oil, or
- (d) the presence of vermin.
All pipes (except down-pipes), fixtures, fittings and vents servicing any building on the site must be concealed in service ducts or otherwise hidden from external view to the satisfaction of the Responsible Authority.
Reticulated electricity must be provided underground to the subject land and all buildings on the land, to the satisfaction of the Responsible Authority.
Provision must be made on the site for letter boxes and receptacles for papers to the satisfaction of the Responsible Authority.
Noise from the premises must not exceed limits prescribed by the State Environment Protection Policy (Control of Noise from Commerce, Industry and Trade) No. N-1, to the satisfaction of the Responsible Authority.
Noise from the premises must not exceed limits prescribed under State Environment Protection Policy (Control of Music Noise from Public Premises) N-2, to the satisfaction of the Responsible Authority.
Before the construction of the buildings hereby approved commences either:
- (a) a Certificate of Environmental Audit indicating the land is suitable for residential use must be issued for the land in accordance with Section 53Y of the Environment Protection Act 1970; or
- (b) an environmental auditor appointed under the Environment Protection Act 1970 must make a statement in accordance with Section 53ZS of the Act that the environmental conditions of the land are suitable for residential use.
Before the construction of the buildings hereby approved commences, a copy of the certificate of environmental audit and/or statement, and the complete audit report and audit area plan must be submitted to the Responsible Authority.
The development and use allowed by this permit must comply with the directions and conditions of any statement of environmental audit issued for the land.
Prior to the occupation of dwellings, a letter must be submitted to the Responsible Authority by an Environmental Auditor accredited with the EPA, to advise that all construction and remediation works necessary and required by an environmental audit or statement have been carried out.
Any handling and disposal of contaminated site soil must be in accordance with the requirements of any statement of environmental audit issued for the land, the requirements of the Environment Protection Authority and the Environment Protection Act 1970.
The development, once commenced, must be completed to the satisfaction of the Responsible Authority.
Before the commencement of the development, a Construction Management Plan to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the plans will be endorsed and will then form part of the permit. The Construction Management Plan must include the following matters:
- (a) a pre-conditions survey of relevant Council roads in the immediate vicinity of the site;
- (b) construction team details;
- (c) containment of dust, dirt and mud within the site and method and frequency of clean up procedures in the event of build up of matter outside of the site;
- (d) on-site facilities for vehicle washing;
- (e) parking facilities for construction workers;
- (f) methods for management of noise and general nuisance;
- (g) operational matters;
- (h) security;
- (i) waste and stormwater treatment;
- (j) construction program;
- (k) preferred routes for trucks delivering to the site;
- (l) delivery and unloading points and expected frequency;
- (m) regular newsletters to inform nearby residents and commercial operators of the progress of the work;
- (n) an outline of requests to occupy public footpaths or roads, or anticipated disruptions to local services including trams;
- (o) a liaison officer for contact by residents and the Responsible Authority in the event of relevant queries or problems experienced and who is available 24 hours per day;
- (p) traffic management measures to comply with provisions of AS 1742.3-2002 Manual of uniform traffic control devices - Part 3: Traffic control devices for works on roads.
- (q) Outline the steps that the permit holder will take to ensure that disruption to tram operation along Burke Road and rail operations is kept to a minimum during the construction of the development.
- (r) Provide that the permit holder must communicate all foreseen disruptions to tram and rail operations during construction and mitigation measures to Yarra Trams / Connex and the Director of Public Transport fourteen days (14) prior.
- (s) Provide that the permit holder must ensure that all track, tram / rail overhead and supporting infrastructure is not damaged or that works do not cause unplanned disruption to operations and detail mitigation and management measures to avoid such damage or disruption.
- (t) Any other requirements as applicable by VicRoads, the Director of Public Transport or any other affected authority or body.
- (u) Times for all works including earthworks, demolition and construction activity associated with the approved development
During the construction phase of the development, the following conditions must be met:
- (a) only clean rainwater may be discharged to the stormwater drainage system;
- (b) stormwater drainage system protection measures must be installed as required to ensure that no solid waste, sediment, sand, soil, clay or stones from the premises enters the stormwater drainage system;
- (c) vehicle borne material from the premises must not accumulate on the roads abutting the site;
- (d) all machinery and equipment must be cleaned (if required) on site and not on adjacent footpaths or roads;
- (e) all litter (including items such as cement bags, food packaging and plastic strapping) must be disposed of responsibly; and
- (f) all site operations must comply with the Environmental Protection (Residential Noise) Regulations 1997.
All storm water drainage within the property not absorbed by water storage tanks must be connected to the nearest Council pit of adequate depth and capacity (legal point of discharge), to Council's satisfaction.
Prior to the issue of a building permit, the owner must obtain the consents of all relevant authorities for any buildings or works, including any paving, fences and landscaping, over any easement or underground services under the control of a public authority including sewers, drains, pipes, wires or cables, to the satisfaction of the Responsible Authority and relevant authority.
The owner must accept all reinstatement costs in carrying out repairs to any buildings, works or landscaping over the easements should such buildings, work or landscaping be disturbed by any works undertaken by Council in the future.
All new boundary walls and fences must be cleaned and finished to the satisfaction of the Responsible Authority.
Prior to commencing demolition, a professionally prepared and annotated photographic study (of archival quality) of the Railway complex (including the landscape embankment and the bridge over Burke Road) must be prepared and submitted to the Responsible Authority as a record of the site. The survey must be prepared to the satisfaction of the Responsible Authority and must include:
- (a) Each component of the Railway complex, including the landscape embankment and bridge over Burke Road;
- (b) Landscape detailing of the embankment;
- (c) A statement prepared by an architectural and landscape historian describing and explaining both the design and construction of the landscape embankment and the photographs.
This permit will expire if:
- (a) the development is not commenced within four years from the date of this permit; or
- (b) the development is not completed within four years from the date of commencement; or
- (c) the use is not commenced within two years from the date of completion.
The Responsible Authority may approve extensions to these time limits if requests are made within three months of expiry.

[1] CSTP Pty Ltd v Boroondara CC & Ors (Red Dot) [2009] VCAT 1078

[2] We acknowledge that the train services using the northern platform may change over time but we were not presented with any evidence to persuade us that the capacity of the access point will not be sufficient to accommodate passengers using the northern platform.

Environment Act 1987

Environmental Protection (Residential Noise) Regulations 1997

CSTP Pty Ltd v Boroondara CC [2010] VCAT 548

At a glance

Court

Decision date

Source

Judgment (23 paragraphs)

CSTP Pty Ltd v Boroondara CC [2010] VCAT 548 (22 March 2010)

Parties

Legislation Cited (3)