Victorian Civil and Administrative Tribunal|2011-03-21

For the reasons set out above, I am satisfied that it is a fair and reasonable planning and heritage outcome for the proposal to be approved, but subject to the deletion of the proposed top level apartment. The final version of the permit conditions set out in the Annexure to this decision reflect this modification, together with any other changes to the draft permit conditions which I considered appropriate.

Part demolition to allow for the construction of a mixed use multi-unit development (comprising of two apartments, five townhouses and a ground floor office) including a reduction of the car parking requirement on land affected by a Heritage Overlay, in accordance with the endorsed plans.

all to the satisfaction of the Responsible Authority.

All development must accord with the endorsed plans. Any alterations must be approved by the Responsible Authority.
Floor levels shown on the endorsed plan(s) must not be altered or modified without written consent of the Responsible Authority.
No more than 3 staff are permitted to work at the site at any one time, unless further written consent is provided by the Responsible Authority.
Any damaged road(s) and footpath(s) adjacent to the development site must be reinstated to the satisfaction of the Responsible Authority.
All buildings and works must be maintained in good order and appearance to the satisfaction of the Responsible Authority.
The development's finished floor levels for pedestrian access, car parking areas and garages must match into Council's existing road infrastructure to the satisfaction of the Responsible Authority.
No fewer than 5 car parking spaces must be provided on the land at all times to the satisfaction of the Responsible Authority.
Provision must be made for the drainage of the site and pavement areas all to the satisfaction of the Responsible Authority.
All piping and ducting, other than for drainage above the ground floor storey of the building must be concealed.
All waste collection and recycling collection to be undertaken by private contractors or Council Service between the hours specified in Council's Local Law No. 3 and to the satisfaction of the Responsible Authority.
Prior to commencement of construction works, a pre construction site inspection and condition assessment of all right of ways and road ways abutting the development is to be prepared and in the event of damage during construction will be required to be repaired by the developer, at the developers cost and to the satisfaction of Council.
Before any development starts, a Construction Management Plan to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the plan will be endorsed as evidence of its approval. The plan must provide for or include the following:
- (a) A pre-conditions survey of all adjacent Council roads and footpaths;
- (b) Protection works necessary to road and other infrastructure (limited to an area reasonably proximate to the site);
- (c) Remediation of any damage to road and other infrastructure (limited to an area reasonably proximate to the site)
- (d) 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 the site;
- (e) On site facilities for vehicle washing;
- (f) Methods for management of noise and general nuisance;
- (g) Site security;
- (h) Waste and stormwater treatment;
- (i) Construction program;
- (j) Preferred routes for trucks delivering to the site;
- (k) Parking facilities for construction workers;
- (l) Delivery and unloading points and expected frequency;
- (m) An outline of requests to occupy public footpaths or roads, or anticipated disruptions to local services;
- (n) An emergency contact that is available for 24 hours per day for residents and the Responsible Authority in the event of relevant queries or problems experienced;
- (o) 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; and
During the construction, the following must occur:
- (a) Any stormwater discharged into the stormwater drainage system to comply with EPA guidelines;
- (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 must not accumulate on the roads abutting the site;
- (d) The cleaning of machinery and equipment must take place 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 EPA Publication TG302/92.
The amenity of the area must not be detrimentally affected by the use or development, through:
- The transport of materials, goods or commodities to or from land.
- The appearance of any buildings, works or materials.
- The emission of noise, artificial light, vibration, smell, fumes, smoke, vapour, steam, soot, ash, dust, waste water, waste products, grit or oil.
- The presence of vermin.
Except with the written consent of the Responsible Authority, demolition or construction works must only be carried out between: 7.00 am - 6.00 pm, Monday-Friday (excluding public holidays) and 9.00 am - 3.00 pm, Saturday and public holidays. No work is to be carried out on Sundays, ANZAC Day, Christmas Day or Good Friday without a specific permit. All site operations must comply with the relevant Environmental Protection Authority's Guidelines on Construction and Demolition Noise.
This permit will expire if any of the following occur:
- (a) The development is not commenced within two (2) years from the date of this permit;
- (b) The development is not completed within four (4) years from the date of this permit;

The Responsible Authority may approve extensions to these time limits if requests are made before the permit expires or within 3 months afterwards.

Daniel Stevens (Zero Nine Pty Ltd) v Yarra CC [2011] VCAT 467 (21 March 2011)

Excluding heritage issues which I will deal with separately, I accept that there is a high level of strategic planning policy support for the proposal. In particular, the subject land falls within a Business 1 Zone. The subject land also is located within an area which is already to a large extent characterised by a relatively intense pattern of development, with quite close living.
It is a plus for the proposal that this section of Johnston Street has the status of a Neighbourhood Activity Centre. I note that Council's submissions to me included citing several recent Tribunal decisions involving nearby sites in Major or Principal Activity Centre locations, in support of the proposition that this would be an over-development for a Neighbourhood Activity Centre. However I agree with Mr Bisset that the key distinction is that these other cases typically involve much larger proposals. For example, the cited case of LeBuild (Abbotsford) Pty Ltd v Yarra CC [2010] VCAT 1240 involved a project for roughly 300 new dwellings. This is a proposal for 8 new dwellings, not 80 or 180.
In relation to the objectives of the Business 1 Zone, they include (with my emphasis) "To encourage the intensive development of business centres for retailing and other complementary commercial, entertainment and community uses". Hence it seems fair to say that the primary zoning of the site does overtly anticipate an intense future development pattern for this location. The site also has the important advantage of having good access to local services, facilities and public transport. The greater utilisation of the site for additional dwellings will promote the urban consolidation objectives found in the Planning Scheme and Melbourne 2030 and add to the housing diversity of this area.
I expect that the project will provide a visual lift and a positive regeneration push for what is currently a rather hard edge and run down location. It is also a positive feature of the proposal that it was supported by the Delegate Planner.

Daniel Stevens (Zero Nine Pty Ltd) v Yarra CC [2011] VCAT 467

At a glance

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Decision date

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Judgment (6 paragraphs)

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Cases Cited (2)

Daniel Stevens (Zero Nine Pty Ltd) v Yarra CC [2011] VCAT 467 (21 March 2011)