Victorian Civil and Administrative Tribunal|1999-01-15

David Blutman & Ass v Horsham Rural CC [1998] VCAT 776 (15 January 1999)

LISTED TO BE HEARD AT HORSHAM ON MONDAY 30 NOVEMBER 1998 AND TUESDAY 1 DECEMBER 1998

Permit Applicant David Blutman & Associates Pty. Ltd.

The development and use of additions and alterations to the existing indoor shopping complex in accordance with the endorsed plans and information submitted with the application, and the development and use of the land known as 'Horsham Plaza' for the purpose of a supermarket, and works to the land to alter the existing carpark layout.

Horsham (Rural City) Planning Scheme, Commercial C Zone, and within the Horsham Airfields Environs Policy Area.

1. Vehicular access must not be afforded to or from the site from Delville Street.

4.1. a contribution towards to provision of an additional 34 car parking spaces must be made to the responsible authority. If paid within six months of the date of this permit the contribution will be $4000 per space.

4.2. The applicant must enter into an agreement under Section 173 of the Act with the responsible authority to provide for the treatment of intersections at Park Drive and the Plaza entrance and Park Drive and the Wimmera Highway to the satisfaction of the responsible authority.

6. Prior to the use commencing, the overhead power lines in Delville Street must be relocated to the satisfaction of the responsible authority in order to provide space for an adequate landscaping buffer strip which will effectively screen the development.

(a) the condition is neither necessary nor reasonable;

(b) access to or from the site from Delville Street will not cause any unreasonable amenity impacts on the persons residing in Delville Street.

(a) the additional floor space created by the development would not generate any further demand for carparking spaces which demand cannot be accommodated on the site;

(b) any additional traffic generated by the increase in the floor area as a result of the development will not be such as to require any treatment to the intersections referred to in Condition 4.2;

(a) the condition is not related to the development and use permission sought;

None of the conditions can be said to achieve any planning policy or the implementation of any planning objective derived from the Planning Scheme or any relevant planning policy.

This was an application for review of Conditions in a Notice of Decision to Grant a Permit.

Maddock Lonie & Chisholm, Solicitors for the Responsible Authority, advised the Registrar by facsimile on 24 November 1998 as follows:

"We act for Horsham Rural City Council. After discussion with the Applicant for Review, we advise that the matter has been resolved on the basis that the Tribunal directs the issue of a permit in accordance with the enclosed draft permit No. 98-047. The order is to be made by consent.

We enclose for your attention a withdrawal of objection by each of the objectors to the application.

Kindly confirm that attendance at Horsham will not be required on 30 November 1998.

Our client will notify each of the objectors as soon as we hear from you."

Maddock Lonie & Chisholm further advised by facsimile on 25 November 1998 as follows:

"We refer to our facsimile forwarded to the Tribunal yesterday. A draft permit was provided with the facsimile. The draft permit provided was an incorrect version. The enclosed version is the correct version. Please discard the incorrect version."

Mr. Cicero, Solicitors for the Applicant for Review/Permit Applicant, advised the Tribunal by facsimile on 26 November 1998 as follows:

"We act for the Permit Applicant/Applicant for Review.

We confirm that this matter has been resolved on the basis that the Tribunal directs the issue of a permit in accordance with the draft Permit No. 98-047 attached to the Maddock Lonie & Chisholm facsimile of yesterday.

We have been advised that you have been provided with a withdrawal of objection by each of the objectors to the application and in the circumstances kindly confirm that our attendance at Horsham will not be required on 30 November 1998."

Of the Conditions that were the subject of the Application for Review, Draft Permit No. 98-047 includes Condition 1, but does not include Condition 4 and Condition 6.

Vic Roads advised by telephone on 27 November 1998 that it would not be attending the hearing. All of the Objectors have now withdrawn their objections, on the proviso condition that vehicular access to or from Delville Street is not permitted. This issue is covered by retention of Condition 1 in the Draft Permit.

The Responsible Authority, the Applicant for Review/Permit Applicant and the Respondents/Objectors have now consented to a permit being issued, in accordance with the Draft Permit provided with the Maddock Lonie & Chisholm facsimile of 25 November 1998. The Tribunal is satisfied that such a permit should be granted. The Application for Review will therefore be allowed in part, and it will be directed that a permit be granted in accordance with the Draft Permit. It is emphasised that the merits of the Application for Review have not been considered by the Tribunal.

It is ordered that Application for Review against Conditions in the Notice of Decision to Grant a Permit is allowed in part, and it is directed that a permit be granted for:

1. Vehicular access must not be afforded to or from the site from Delville Street.

2. Before the development starts, plans generally in accordance with drawing R-9808/RSK-1 (2 sheets) of David Blutman & Associates dated October 1998 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 plans must be drawn to scale with dimensions and three copies must be provided. The plans must show:

a) the deletion of the entry and exit points into the proposed development from Delville Street.

b) the system to dispose of stormwater from all roofs, gutters, downpipes and paved areas to a legal point of discharge in a manner to the satisfaction of the Responsible Authority.

3. The Permit Holder is required to pay $10,000 to the Responsible Authority towards the landscaping of the existing carpark and the Delville Street frontage.

4. Once the development has started it must be continued and completed to the satisfaction of the Responsible Authority.

5. The amenity of the area must not be detrimentally affected during the development or afterwards for the life of the use through the:

a) Transport of materials, goods and commodities to or from the land;

b) Appearance of any buildings, works or materials;

c) Emission of noise, artificial light, vibration, smell, fumes, smoke, vapour, steam, soot, ash, waste water, waste products, grit or oil;

6. All loading and unloading of vehicles and delivery of goods to and from the premises must occur in the designated areas on site.

7. The storage of goods or materials on the site must be out of view from any adjacent premises or any public place and must be stored to the satisfaction of the Responsible Authority so as to not become visually obtrusive on the site.

8. No bins or other receptacles for any form of rubbish or refuse must be placed or allowed to remain in view of the public, and no odour must be emitted from any receptacle so as to cause offence to persons outside the subject site.

9. Access to the ground floor and the internal layout of the buildings must be designed and constructed so as to ensure ease of use by disabled persons to the satisfaction of the Responsible Authority.

10. Further signs, hoardings, flashing lights, flags, bunting or any other advertising devices must not be erected or displayed on the subject land, without the prior written approval of the Responsible Authority.

11. Effective physical means must be developed by the Applicant to ensure that no heavy delivery vehicles are permitted to use the access way between the eastern and western carpark. The method of ensuring compliance with the condition is subject to the approval of the Responsible Authority.

12. Effective acoustic baffling of all electrical mechanical equipment to be mounted on the roof extension shall be installed subject to the approval of the Responsible Authority.

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

David Blutman & Ass v Horsham Rural CC [1998] VCAT 776

At a glance

Court

Decision date

Source

Judgment (51 paragraphs)

David Blutman & Ass v Horsham Rural CC [1998] VCAT 776 (15 January 1999)

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