1. Prior to delving into my decision, it is important for me to outline my ambit of discretion given this is a retrospective application. I have assessed the merits of this proposal on the basis that the permit applicant is not at a disadvantage or derives a benefit from this circumstance. This is consistent with the approach taken in Van Egmond v City of Knox & Ors[5] (the 'Van Egmond principles') which is an established principle summarised by J Osborne in Knox City Council v Tulcany Pty Ltd & Ors[6] that states:

The permit applicant should neither be punished nor rewarded for undertaking work before a permit was obtained.[7]

1. The review site located 10 metres west of the intersection of Atherton Road and Hanover Street, Oakleigh. It contains a single storey shop that is one five occupancies within the Oakleigh MAC.

1. Directly east is a real estate agent and to the west is a clothing store. On the opposite side of the street is paint supplies and associated car parking.
2. Commercial buildings in the Oakleigh MAC generally have a veranda over the pavement and signs on glazing, under the veranda, and on the parapet. There are other roller shutters on shopfronts nearby including on the greengrocer and chemist in Atherton Road.

1. The review site is in a Commercial 1 Zone ('C1Z') which has purposes including to create vibrant mixed use commercial centres for retail, office, business, entertainment and community uses. Whilst alterations to an existing building façade are exempt in Clause 34.01-4, this does not include installation of an external roller shutter.
2. The decision guidelines for buildings and works at Clause 34.01-8 is relevant as it states:

The streetscape, including the conservation of buildings, the design of verandahs, access from the street front, protecting active frontages to pedestrian areas,[9] the treatment of the fronts and backs of buildings and their appurtenances, illumination of buildings or their immediate spaces and the landscaping of land adjoining a road.

1. The review site is also within Design and Development Overlay - Schedule 11 ('DDO11') which is applicable to the Oakleigh MAC. The precinct map shows the review site is in Precinct 1 - Oakleigh Village. The Design Objectives at Clause 1.0 include to ensure that new development contributes to safe and active streets.
2. Clause 2.0 of DDO11 relevantly states under Urban Design and Heritage:

All infrastructure improvements in the activity centre, including street widening, paving upgrades and new buildings should have a primary focus of improving pedestrian amenity[10] and access to and through the centre, linking key destination points.

1. Clause 4.0 contains specific precinct objectives for Precinct 1 - Oakleigh Village. These include relevant objectives:
   • To further improve and encourage active street frontages to create interest and vitality at the pedestrian level.
   • To encourage an enhanced pedestrian environment within the Precinct.
   • Active shop fronts should be provided at street level.
   • Development should be designed to maintain a human scale by providing active street frontages and verandahs to shopfronts.
2. The Municipal Planning Strategy ('MPS') contains policies that are relevant to my decision including:
   • Clause 02-03-1 (Settlement) notes that activity centres are to provide attractive environments and a focus for community activities in Monash. Oakleigh is classified as a MAC, which has a regional focus.
   • Clause 02.04-1 (Strategic framework plan) shows the review site within a MAC.
   • Clause 02.03-6 (Economic development) states that Monash is seeking to facilitate greater diversity in economic investment in activity centres through enhancing the physical environment by improving amenities.
3. Council has listed a range of state and local policies in the Planning Policy Framework ('PPF') that are relevant to my decision that include:
   • Clause 11.03-1S (Activity centres and precincts) contains strategies to build up activity centres as a focus for high quality development, activity and living.
   • Clause 11.03-1L-01 (Activity centres - Monash) contains strategies to design development that:
     • Provide casual surveillance of open areas.
     • Design buildings to address the future amenity of the occupants, visitors and those using public streets by maximising accessibility, passive surveillance and internal amenity.
     • Maintain the vibrancy of the street by encouraging "active frontages" with retail, leisure and cultural facilities.
     • Incorporate uses with active commercial frontages on the ground floor of a multistorey development where the location of the development is in a core retail or business area of the activity centre.
   • Clause 11.03-1L-06 (Oakleigh Major Activity Centre) contains a strategy for Precinct 1 to facilitate a strong sense of identity and the traditional/cultural character of the precinct. The clause also seeks to create a safe environment that provides a lively community focus.
   • Clause 15.01-1S (Urban Design) has an objective to create environments that are safe, healthy, functional and enjoyable and that contribute to the sense of place and cultural identity. This is to be achieved by ensuring the interface between the public and private realm protects and enhances personal safety.
4. Council also referred me to the Urban Design Guidelines for Victoria[11] (the 'Urban Design Guidelines') which is a policy document at Clauses 11.03-1S, 15.01-1S, 15.01-2S and 15.01-4S. These guidelines provide guidance for the provision of transparent street frontages in activity centres and open-grill type structures for security. Section 5.1.5c of the Urban Design Guidelines state:

Tip: People prefer to walk along streets where there is activity, visual interest and a perception of being visible from nearby windows. People tend to avoid streets with long blank walls or solid security shutters that contribute no interest or activity at street level.

1. Council also drew my attention to the Built Form Overlay ('BFO') at Clause 43.06. Whilst it acknowledges the overlay is not applicable to the review site, it says the provisions at Clause 43.06-7.9 are instructive in relation to active frontages. This clause states that security grills or mesh should be transparent, not obscure views into tenancies at night, and be mounted internally to the shop windows.
2. Council has advised that the Department of Transport and Planning ('DTP') is considering applying this overlay to Oakleigh commercial areas and the new controls are likely to be gazetted towards the end of year.

DOES THE DEVELOPMENT RESPOND TO ITS POLICY CONTEXT?

1. Council argues that it has maintained its consistent position that any security shutters should be internal to the building and be an open grill. It submits that policy is clear as it encourages active frontages within the Oakleigh MAC. It says that installation of solid, external shutters on shopfronts within an activity centre is inconsistent with this objective.
2. Council submits that as the review site is within the retail core of the Oakleigh MAC, land use activity contributes to the vibrancy of the centre for day and nighttime economies. It says that consideration must be given to not only the existing land use mix and activity, but the future and how it is expected to evolve and intensify over time.
3. Council notes the Oakleigh Major Activity Centre Structure Plan (2012)[12] (the 'Structure Plan') seeks to create attractive, safe and vibrant streets, enhance active street frontages and pedestrian movements. It submits the proposal undermines the objectives of the Structure Plan as it will create a hostile and blank frontage when closed which will deter foot traffic and reduce vibrancy.
4. The applicant understands there are policies that seek active street frontages, but says there are security risks to the business that need to be addressed.

1. The general thrust of C1Z, DDO11, local policies and the Structure Plan is to encourage safe and attractive streetscapes in this activity centre. This is also reiterated in the Urban Design Guidelines that recommend transparent windows to the street frontage.
2. I have given no weight to the provisions of Clause 43.06 (Built form overlay) but note it also includes recommended measures to maintain an active frontages.
3. Whilst understanding the applicant's concerns regarding security of the business, I must look at the 'bigger picture' implications to the Oakleigh MAC as a whole. This is articulated in Clause 11.03-1L-06 that seeks to support the strong sense of identity and the traditional/cultural character of Oakleigh Village.
4. I am not persuaded by the applicant's arguments and consider the inclusion of the security roller shutter will have a detrimental impact on the streetscape. This feature will present as a harsh blank black wall in the streetscape as it obscures the shopfront. This then creates an inactive area that reduces the sense of safety for pedestrians.
5. I agree with Council that this contrary to the Planning Scheme objectives to create active, vibrant spaces within the Oakleigh MAC during the day and evening. It will also have longer term economic impacts on the safety and security concerns for other businesses nearby.
6. This is contrary to the decision guidelines of the C1Z that require consideration of whether the buildings and works protect active street frontages to pedestrian areas. It also fails to respond to the design requirements of the DDO11 that seeks to focus on improving pedestrian amenity and provide active street fronts at ground level.
7. Council referred me to a decision of the Tribunal that dealt with this same issue. In Dossetter v Maroondah CC [2008] VCAT 2556 ('Dossetter') the Tribunal stated:

It is this display and sense of activity that promotes active frontage and perceptions of safety that the planning scheme seeks to protect. Proliferation of fully screened roller shutters in a street only increases the extent of blank wall / façade in the street and reduces pedestrian amenity and perception of safety. Whilst shops may not be occupied at night displays and display lighting can add to a sense of activity and safety that engages people to be in a centre. This in turn can add to the real safety of the centre for users and business owners as there are then more people in the area to maintain casual surveillance of public and private property.[13]

It does, however, reinforce to me concerns in incremental loss of active frontage in the centre from additional solid screens that can reduce the sense of activity and perception of safety for users of the street.[14]

1. Given the circumstances of this proposal are similar, I agree with the above findings which indicate that there is a lack of policy support for solid external shutters in areas where active frontages are a promoted, particularly in activity centres.

1. The applicant submits that since the business opened in 2023, there has been numerous thefts and one major break-in that damaged the shopfront. It says the Oakleigh market area is ranked one of the worst areas for shoplifting and homelessness. It says that it needed to take action to protect the business with the installation of roller shutters on the shopfront.
2. The applicant argues that there are precedents in the same street with similar arrangements to protect against break-in/burglaries. It says as the site is at a corner of a big intersection, it will have minimal impact on pedestrians walking experience.
3. The applicant also submits the bottle shop is open from 10.30am to 11.00pm and therefore the shutters will up and will blend in with the streetscape for most of the time.
4. Council submits that it understands that the applicant is seeking to protect its business from the ongoing threat of property crime and vandalism. It acknowledges the threats are real and property damage has occurred in the area. However, it argues that there are alternative measures that could be considered, such as internal fittings, which provide the same level of security and are more aesthetically pleasing.
5. Council argues the shutters reduce the visual permeability of shopfronts that contribute to passive surveillance and engagement with the street. It considers the shutters create 'dead' frontages and a hostile environment that will deter foot traffic and reduce vibrancy.
6. It also submits the existence of other roller shutters nearby does not set a precedent as others may have been installed without the necessary planning approvals. It says that it is currently investigating the installation of these shutters, with further action to be taken.

1. My inspection of Atherton Road, in the vicinity of the review site, is that it has a 'village-like' feel due to the open glazed shopfronts and verandas over the pavement. I also note that the review site is approximately 50 metres from a large public car parking area[15] and Atherton Road is used as one of the pedestrian thoroughfares in the Oakleigh MAC.
2. I acknowledge a balance is required between providing active street frontages encouraged in policy and providing adequate security measures for businesses. However, I agree with Council that solid shutters are contrary to these objectives as they remove visual permeability and light spill from the shopfronts.
3. I find the insertion of blank walls containing roller shutters at night will contribute to a perception of unsafe spaces that will deter pedestrians walking on this section of the street. It will also detract from the appearance and vitality of the Oakleigh MAC early in the morning and later in the evening.
4. I agree with the comments made by the Tribunal regarding security matters in Mastroianni v Moreland CC [2016] VCAT 872 where it was noted:

Mr Mastroianni submitted that he understood crime was increasing in this area and that anecdotally police had indicated that installation of security measures such as roller shutters were to be promoted. Mr Mastroianni did not provide any evidence of this, and it appears to contradict the public policy position of the planning scheme to promote CPTED practices. This is to provide active frontage as the preferred means of providing security to both pedestrians and shop owners. With this I note that information on the Victorian police website[16] concurs that the principles of CPTED are important. It also suggests that having clear view into a shop has the potential to reduce crime within the premises as a perpetrator is exposed to the street.[17]

1. Whilst the applicant has identified there are other shops nearby that have shutters, this is not a valid reason for supporting this one given there are explicit policies in the Planning Scheme which seek to make MACs, such as Oakleigh, safe, inviting destinations during the day and evening.
2. I concur with the comments made by the Tribunal regarding precedent in Sakkas v Hobsons Bay CC [2000] VCAT 2486 where the Tribunal commented:

The Tribunal considers the existing roller doors rather unsightly, and there has been no attempt to enclose or disguise the roller door encasement. The view of these roller doors does little to enhance the appearance of the shops. Whilst the placement of a further roller door on the third shop in a row may be seen by some people as only marginally worse than that which exists on the two adjoining shops the Tribunal considers there are alternative treatment to achieve a reasonable standard of security for the shopfront. It is disappointed that the applicant is unwavering in his desire to have a solid type roller door (only) on the shopfront.[18]

1. Council submits that alternative protection measures should be considered, such as internal fittings.
2. The applicant submits that it is unable to install security measures within the building as there is inadequate internal structural support. It says that it will be expensive to relocate the existing meter box and it will take a long time to work out a solution. It says this is unfair as the small business will be exposed to burglaries and thefts.
3. The applicant suggested installation of a translucent roller shutter to the exterior of the shopfront as an alternative security measure. It says this will provide 70-80% transparency and address the issue of informal surveillance and pedestrian experience on the footpath.
4. Council responded to say that its preference is for a security measure that is internal to the shopfront as it is more aesthetically pleasing. It acknowledges this option provides some permeability, but the shutter is still a solid screen erected on the outside the shopfront.

1. Whilst I agree that the translucent shutter provides some visibility of the shopfront, this proposal is not before me.
2. The applicant will need to make a fresh application to Council for this design or a range of other security options.

1. For the reasons given above, the decision of the responsible authority is affirmed. No permit is granted.

[1] The submissions and any supporting exhibits given at the hearing and the statements of grounds filed have all been considered in the determination of the proceeding. In accordance with the practice of the Tribunal, not all of this material will be cited or referred to in these reasons.

[5] (1985) 3 PABR 249.

[6] (2004) VSC 375.

[9] Underlining is the Tribunal emphasis.

[11] Department of Environment, Land, Water and Planning (2017).

[12] Oakleigh Major Activity Centre Structure Plan (City of Monash, 2012) is a policy document at Clause 11.03-1L-06.

[15] On the south-east corner of Atherton Road and Hanover Street.

[16] See http://www.police.vic.gov.au/content.asp?Document_ID=10912 and http://www.police.vic.gov.au/content.asp?document_id=10444.

[17] Mastroianni v Moreland CC [2016] VCAT 872, at [18].

[18] Sakkas v Hobsons Bay CC [2000] VCAT 2486, at [15].