With respect to permit application 04/0910, the Responsible Authority's decision to refuse to grant a permit is set aside.

A permit is granted for the development of buildings, loading bays, bicycle spaces, a reduction in car parking provision and the removal of native vegetation at 11 Bryants Road, Dandenong South generally in accordance with the endorsed plans and subject to the following conditions:

1 Before the development starts, three (3) copies of amended plans drawn to scale and dimensioned, 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 plans must be generally in accordance with the amended plans submitted to the Tribunal (Drg No 4244/04 TP1 Rev C, TP 2 Rev A & TP 3 Rev A) but modified to show:

(a)

The detail of the articulation of the buildings, including a schedule of materials, colours and finishes.

(b)

The provision of a minimum of one bicycle parking space for each building.

(c)

A staging plan with indicative timeframes for each stage of the development.

(d) "Stop" line marking adjacent to buildings 12 and 37 to require vehicles travelling north/south to stop adjacent to the southernmost access way into the site to ensure safe vehicular movements through the site.

(e) A 3.5 metre wide crossing to the northernmost crossing servicing the office 1 building.

All to the satisfaction of the Responsible Authority.

2 A landscape plan for the site prepared by a person suitably qualified in landscape design shall be submitted to the Responsible Authority. The details of that person's qualifications must be given and the plan must show existing vegetation to be retained, all proposed trees, shrubs and ground cover, including the botanical names and sizes at maturity of all plants and the location of all areas to be covered by grass, lawn or other surface material to be specified. The landscape plan must incorporate a 50% component of advanced planting along the site's Bryants Road frontage.

3 Prior to the commencement of works on site, an amended tree retention plan is to be submitted, accurately identifying the location and species of vegetation to be retained and removed and the control measures appropriate for those trees nominated for retention.

4 The landscaping shown on the endorsed plans must be maintained to the satisfaction of the Responsible Authority, including that any dead, diseased or damaged plants are to be replaced, for a period of 12 months from occupation of the buildings hereby approved.

5 Before occupation of the buildings hereby permitted for that stage of development which includes those buildings, or by such later date as approved by the Responsible Authority in writing, the landscaping works shown on the endorsed plans must be carried out and completed to the satisfaction of the responsible authority.

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

7 Once the development of each stage has started, it must be continued and completed, all to the satisfaction of the Responsible Authority.

8 The finishes of the building must be of a non-reflective nature. Cladding materials must be coloured or painted in muted shades of green, brown or in colours approved by and to the satisfaction of the Responsible Authority within twelve (12) months of completion of the building. All finishes must be maintained all to the satisfaction of the Responsible Authority.

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

10 Before the occupation of the buildings in any stage of the development starts, areas set aside for the parking of vehicles and access lanes as shown on the endorsed plans for that stage must be:

(a)

Constructed in accordance with the endorsed plan/s.

(b)

Properly formed to such levels that they can be used in accordance with the plans.

(c)

Surfaced with an all-weather seal-coat.

(d)

Drained to the legal point of discharge.

(e)

Line-marked to indicate each car space and all access lanes

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

All to the satisfaction of the Responsible Authority.

11 The car parking provided on the land must always be available for use by persons employed on or visiting the subject premises and no measures may be taken to restrict access to the carpark by such persons, all to the satisfaction of the Responsible Authority.

12 The car parking spaces for disabled persons designated on the endorsed plans must be clearly set aside for such a purpose and must not be used for any other purpose.

13 In areas set aside for carparking, measures must be taken to prevent damage to fences or landscaped areas, all to the satisfaction of' the Responsible Authority

14 Standard concrete vehicular crossing/s must be constructed to suit the proposed driveway/s in accordance with the Council's standard specifications other than widths and any vehicle crossing/s no longer required must be removed and the land, footpath and kerb and channel reinstated, all to the satisfaction of the Responsible Authority.

15 Access to the site and any associated roadworks must be constructed, all to the satisfaction of the Responsible Authority

16 All buildings and works must be maintained in good order and appearance to the satisfaction of the responsible authority.

17 All plant and equipment must be installed and located so that it does not adversely affect the amenity of the area due to the emission of noise, all to the satisfaction of the Responsible Authority.

18 All external lighting of the site, including car parking areas and buildings, must be located, directed and shielded and of such limited intensity that no nuisance or loss of amenity is caused to any person beyond the site.

19 The site shall be kept in a neat and tidy condition at all times, all to the satisfaction of the Responsible Authority.

20 Any bulk waste collection bin or alternative may be provided in an accessible area but shall be suitably screened to the satisfaction of the Responsible Authority.

21 Provision must be made for the drainage of the site including landscaped and pavement areas, all to the satisfaction of the Responsible Authority.

22 All wastes must be disposed of to the satisfaction of the Responsible Authority and no liquid waste or polluted waters shall be discharged into a sewer or stormwater drainage system.

23 This permit will expire if:-

(a)

The first stage of the development does not start within two (2) years of the date of this permit, or

(b)

The development is not completed within six (6) 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 (3) months afterwards.

The Responsible Authority is ordered to issue a permit in accordance with this determination pursuant to Section 85(1)(b) of the Planning and Environment Act 1987.

Mr Pitt called the following expert witness to give evidence and be made available for cross-examination:

1 This is an application to review the decision by Greater Dandenong City Council ('the Council') to refuse to grant a permit for 38 industrial/warehouse buildings, including one office of 120 square metres, native vegetation removal and a reduction in the provision of car parking at 11 Bryants Road, Dandenong South.

2 I gave reasons and issued an Interim Order on 8 February 2006 stating that I found the following matters required further consideration:

•

Alterations to the northern section of the development, comprising buildings 1 to 6 to provide loading bay access via the rear, a reduced number of crossovers and different car parking arrangements;

•

Mr Fairlie's recommended alterations to the semi-trailer sweep path and traffic linemarking on the common access road;

•

Any consequential changes required to the remainder of the development; and

•

An analysis by a suitably qualified traffic engineer of the appropriateness of the revised car parking provision for the proposed tenancies, and the car parking layout, loading and access arrangements.

3 Accordingly, my Interim Order contained the following requirements:

1 The Applicant has been provided with the opportunity to prepare amended plans and a traffic engineering analysis. Copies of such amended plans together with the traffic engineering analysis and a list specifying the amendments made to the plans are to be lodged with the Tribunal and served on the Council within 6 weeks of the date of this Order.

2 The Council then has the opportunity to lodge a written submission limited to such amendments with the Tribunal and the Applicant within 14 days of receipt of the amended plans.

3 If either party considers that a further hearing is necessary or desirable, they should state why it is said to be necessary or desirable and what matters, limited to the amendments made to the plans, should be considered in such a hearing.

4 The Tribunal will then consider the amended plans, traffic engineering analysis, the Council's submission, and any request for a further hearing. If no further hearing is determined to be necessary, the Tribunal will make a final determination on this matter.

5 If the timeframes specified are considered inadequate by either of the parties, a written request for an alternate timeframe and an explanation as to why it is necessary should be provided to the Tribunal and the other party. The Tribunal will then consider whether to amend the timeframes and issue revised directions.

4 It appears that the applicant for review failed to understand these requirements as amended plans were received with a covering letter dated 21 March 2006 without a traffic engineering analysis of the car parking provision and parking, loading and access arrangements. Accordingly, I issued further directions on 7 April 2006 requiring:

1 The Applicant must provide a traffic engineering analysis and a list specifying the changes made to the amended plans to the Tribunal and the Council within 2 weeks of the date of these Directions.

2 The Council then has the opportunity to lodge a written submission limited to such amendments with the Tribunal and the Applicant within 4 weeks of the date of these Directions.

3 The Tribunal will then consider the amended plans, traffic engineering analysis, the Council's submission, and any request for a further hearing. If no further hearing is determined to be necessary, the Tribunal will make a final determination on this matter.

5 The Tribunal then granted the applicant for review a further extension of time until 2 June 2006 to comply with these directions.

Amended Plans/Information and Council Submission

6 By letter dated 12 May 2006, Stephen D'Andrea Pty Ltd provided amended plans and stated the changes were:

1. Alteration to Northern Section which provides through rear of site with access to roller shutters.

2. The number of crossovers have now been reduced to four.

3. Amendments to Ratio Consultants requirements have been adhered to including one way drive at rear of building 2-6 and reducing garden strips in areas highlighted on plans to create a better sweep path for trucks.

4. We have taken the opportunity to amend the aesthetics of all of the development.

5. Letter from Ratio Consultants which addresses the Interim Order.

7 The Council advised by letter dated 3 May 2006 that the amended plans were being considered at a Council meeting on 8 May 2006. By letter dated 10 May 2006, the Council advised it did not support the amended plans and I have decided to quote the main content of this letter rather than attempt to summarise the Council's position:

I refer to your letter dated 10 April 2006 and the Direction by Tribunal dated 7 April 2006. The Tribunal Ms directed that the applicant make particular changes to the design and provide a further traffic engineering analysis. The Tribunal has also given the Council an opportunity to comment on the changes sought by it.

As background to the formal resolution taken by Council at its meeting on Monday 8 May 2006, and being mindful of the direction that "Council has the opportunity to lodge a submission limited to such amendments" I would be pleased if the Tribunal would permit this opportunity to be informed on the issues which give rise to the comments in that resolution by Council.

While it is true that the industrial sites along the northern half of the eastern side of Bryants Road have an Industrial I zoning that goes back many years, it cannot be divorced from the fact that there are a significant number of residential properties in that street with which they interface. The entire length of the western side of Bryants Road- with the exception of three properties- is zoned for and developed as residential, as is the southern half of the eastern side. The existing industrial developments generate a number of adverse amenity issues, the most noticeable of which is that of traffic safety and conflict. Understandably it is not possible to constrain or prohibit the existing industrial activity of those established and lawful uses, but is possible to constrain and limit the extent to which further development is allowed:

From a traffic engineering point of view the development of four (or more) access/egress points along the length of the application site will certainly make the development of the site more efficient and assist in it being developed to its maximum capacity. Thus, from a traffic analysis point of view the development may well pass the test. Also, the road is constructed to a standard that will probably carry the volumes of traffic generated by the development, as will the surrounding road layout. Therein lies the core of the issue.

The burden of any constraints, limitations or inconvenience that results from proposed development or extensions to development should not be shared or shouldered by the residential community. If severely limiting the number of access/egress points to the development results in an equally severe limitation in the design and extent to which the site can be developed, so be it. If, for example, the development was permitted only a single point of access/ egress at the northern-most point of the site and a traffic analysis indicated that for traffic safety and intersection capacity reasons the development had to be reduced to an extent that its traffic generation fitted within those safety and capacity thresholds, then that is a constraint that should be imposed on the developer. The right to develop the site has to be balanced against the rights of residents to an appropriate level of residential amenity, not a compromised level of residential amenity.

In undertaking a study in November 2005 for the development of a Local Area Traffic Management Plan for the immediate area, the concerns of safety resulting from the exiting levels of conflict were borne out by findings of that study. Of significant concern too is the safety situation at the intersection of Bryants Road with Webster Street and the rail crossing, making a right turn into Webster Street particularly dangerous and difficult when large truck s are involved. This situation is compounded at peak times when residential and commercial traffic volumes are at their greatest and when the potential for accidents is at its highest.

It is with the sincere purpose of protecting the amenity of the residents of Bryants Road that restricting further development of industrial uses along that road is being• pursued.

In view of the above and having had regard of the amended plans submitted by the applicant, the Council at its meeting on Monday 8 resolved as follows:

1. Council having reviewed the amended plans requested by VCAT, inform the Tribunal that the changes being sought:

a) do not adequately address concerns regarding the number of access points as is considered appropriate,

b) do not address the traffic safety and conflict issues external to the site,

c) does adequately address the issues of design, loading and unloading areas, and parking layout internal to the site,

d) remains opposed to the application for the reasons set down in its Refusal of the application on 22 August 2005; and

2. following the Council's Refusal of application on 22 August 2005 a Local Area Traffic Management Plan was undertaken by Council which further reinforces the issues of traffic safety raised above.

I enclose for the assistance of the Tribunal a number of photographs which illustrate to some extent the traffic impact existing industrial uses are having on Bryants Road.

8 The parties will recall that my Interim Order on this matter made findings in regard to the State and local planning policy support for this proposal; the use of the site for industry and warehouse; the layout and appearance of the development; traffic and car parking; and staging. I do not intend to repeat these findings in my final decision, but it is important that the parties understand the reasons for my final decision should be read in association with my findings on each of the matters discussed in my Interim Order.

9 Having considered the amended plans, the traffic engineering analysis and the submission received from the Council, I am of the opinion that a permit should be granted subject to conditions.

10 I am satisfied that the alterations to the northern end of the development have addressed the concerns I expressed in my Interim Order about the combination of crossovers, car parking areas and loading bays creating a poor streetscape appearance. The amended layout contains a reduction in the total number of crossovers from 8 to 4, which includes a reduction in the number of crossovers at the northern end from 6 to 2. The front setback area of the northern end now encompasses a row of car parking spaces with a 3 metre wide landscaped setback from the street. This appearance will be consistent with the balance of the development. The loading bays of buildings 2 to 6 are now located at the side or rear of these buildings, which again enhances the opportunity for these buildings to provide an attractive streetscape appearance.

11 Mr Crowder gave evidence in the hearing that the roller doors could become a design feature particularly if contrasting colours are used, or he suggested canopies could be introduced over the roller doors as an additional element of articulation[1]. In my Interim Order I agreed with Mr Crowder's suggestion about the canopies and found this change, together with the rest of the facades as proposed, will provide a good standard of design for this site. However, in the amended plans, it does not appear to me that the suggested canopies have been incorporated. Instead, the overall facades of the buildings have been amended and, in my opinion, they have been amended in positive ways. The Council, in its response to the amended plans, have reiterated the importance of providing an appropriate interface between the industrial and residential land uses along Bryants Road. I find part of the creation of an appropriate interface is the maintenance of a good standard of design on this site, so I will require the detail of the buildings' articulation, including their materials, colours and finishes to be provided to the Council and approved by the Council as part of the permit conditions.

12 I adopt the findings of Mr Fairlie, the expert traffic engineer who gave evidence in this case. He has reviewed the amended layout and provided a letter explaining the access arrangements throughout the site and the loading bays are appropriately designed. I also adopt his findings that the car parking provision remains more than adequate for the peak parking demand generated by this development; and that Bryants Road has the capacity to accommodate the additional traffic volumes generated by this development. I also remind the parties of the following comments I made in my Interim Order at paragraph 49:

In addition, I wish to make the observation that as no approval will be given for the use of industry and warehouse in my final decision (if a permit issues), the Council will have the opportunity to review the purpose of the use of the individual tenancies, including any likely effects of loading/traffic, as part of subsequent planning applications. Clearly, if the Council considers the effect of the use of a tenancy will create unsafe loading/traffic arrangements, it may require changes to the use or may refuse to approve the use.

13 I note Mr Fairlie's recommendation in regard to modifying the landscaping area adjacent to building 15 is included in the amended plans. However, Mr Fairlie also recommended[2]:

i

"Stop" line marking adjacent to buildings 12 and 37 to require vehicles travelling north/south to stop adjacent to the southernmost access way into the site to ensure safe vehicular movements through the site; and

ii

A 3.5 metre rather than 6 metre wide crossing to the northernmost crossing servicing the office 1 building.

14 I am of the view these recommendations should also be included in the plans for this development; therefore I will require these changes as permit conditions.

15 The final matter I wish to comment on is the staging of the development. I advised the parties in my Interim Order that I would require a staging plan to be submitted to the Council for approval as part of any permit issued. I also made the following suggestions in paragraph 53, which I wish to repeat here:

In determining the appropriate stages for the development, I suggest the applicant and the Council give consideration as to when to undertake building works adjacent to Bryants Road so that the construction noise and dust impacts upon the neighbouring residential properties can be minimised. I also suggest the applicant and the Council consider what amount of car parking must be provided for each stage so that there is adequate on-site car parking at all times throughout the development.

For the above reasons, the decision of the Responsible Authority to refuse to grant a permit is set aside. It is ordered that a permit be issued subject to conditions.

[1] Page 26 of Mr Crowder's expert evidence report.

[2] Appendix C of Mr Fairlie's expert evidence report.