Victorian Civil and Administrative Tribunal|2010-04-06|Before: Mr J

The application is allowed. The amendment to the development plan prepared by Bate Architecture Project no. 07037, Drawing no. TP300, dated 14.01.2008, is approved and determined to be to the satisfaction of the responsible authority.

In permit application no. WYP2004/08:
- (a) The decision made by the responsible authority is set aside.
- (b) A permit is granted and is directed to be issued. The permit relates to the land known as No. 280-286 Point Cook Road, Point Cook. The permit will allow:
  - (i) use and development of the land as a hotel and place of assembly;
  - (ii) the installation and use of 70 gaming machines;
  - (iii) the sale and consumption of liquor;
  - (iv) a reduction in car parking;
  - (v) a variation to loading bay requirements;
  - (vi) alteration to access in a Road 1 Zone;
  - (vii) relocation of an easement;
  - (viii) three business identification signs;

Mr J Gobbo QC with Ms S Brennan of counsel instructed by Best Hooper solicitors. Expert evidence was called from:

Mr J Fetterplace, town planner of urbis;
Mr R Fairlie, engineer of Ratio Consultants;
Ms C Peterson, town planner of Ratio Consultants;
Mr N Huybregts, acoustic engineer of Marshall Day Acoustics.

Application under Section 149(1)(a) of the Planning and Environment Act 1987 [PEAct] against the responsible authority's refusal to approve an amendment to a development plan under Clause 43.04-1 of the Planning Scheme.

Application under Section 77 of the PEAct against the responsible authority's refusal to grant a planning permit (permit application no. WYP2004/08).

Amendment to a development plan, and a permit application, to enable a hotel (70 gaming machines), place of assembly (two community rooms at the first floor of the building), sale and consumption of liquor, a reduction in parking, variation to loading requirements and alterations to access in a Road 1 Zone. Several outdoor areas are shown on the plans associated with different bars, function rooms and the bistro. Three business identification signs are also shown on the plans. An easement requires relocation. A total of 350 at-grade car spaces are all accessed from Point Cook Road. Loading would be shared with the access currently utilised by the abutting shopping centre. The total floor area of the hotel and its associated facilities would be around 2,955 square metres as cited on the plans.

Residential 1 Zone. Development Plan Overlay (Schedule 2). Point Cook Road is in a Road 1 Zone.

Clauses 32.01-1, 32.01-6, 52.05, 52.06-1, 52.07, 52.27, 52.28-2 and 52.29.

The 1.536ha site is vacant land located on the west side of Point Cook Road immediately to the north of the existing Sanctuary Lakes shopping centre. Residential properties are to the north (Architecture Way), north-west (Windsong Way) and west (Castle Court and Ikon Drive). A child care centre is to the north and then houses and a primary school. Residential properties are also opposite the site in the Sanctuary Lakes estate.

The parties were advised at the commencement of the hearing that the Tribunal visited the site on 21 March 2010. The area was revisited subsequent to the hearing.

De Group Pty Ltd proposes a hotel with gaming facilities on a site adjacent to the existing Sanctuary Lakes shopping centre on Point Cook Road.
The first application made by De Group Pty Ltd seeks review of a decision made by the responsible authority to refuse an amendment to a development plan adopted under DPO2. The applicant requests the Sanctuary Lakes Development Plan (West of Point Cook Road) be amended to nominate the bulk of the review site as "HOTEL/COMMUNITY USES" and, on the balance of the land, "MEDIUM DENSITY HOUSING".[1] The whole of the review site is currently "RESIDENTIAL (MEDIUM DENSITY) DEVELOPMENT/SUBDIVISION" on the adopted development plan. [2] I must decide if the amendment to the development plan should be approved.
The second proceeding brought by De Group seeks review of a decision made by the responsible authority to refuse a permit for the proposed hotel and associated facilities. A permit must only be granted if the application is generally in accordance with the approved development plan.[3] I must decide whether to grant the planning permit. An application that is generally in accordance with the development plan is exempt from third party rights.[4]
Having considered all submissions and expert evidence with regard to the provisions of the Wyndham Planning Scheme[5], I am satisfied that the requested amendment to the development plan is acceptable. I also find that, subject to some modifications, a permit should issue for the hotel including gaming machines and associated facilities. My reasons follow.

What are the main grounds argued against the proposed development plan amendment and permit application?

The Council's case with respect to the request to amend the development plan, and the permit application, has the following main limbs:
- The proposal will not result in orderly planning and will not produce a net community benefit when weighing the entertainment/function facility with activity centre policy, the need to ensure an adequate supply of residential land, and to ensure new uses and development are appropriately located.
- There is no strategic justification for the outcome of these proposals that is a piecemeal expansion of the activity centre.
- The need for the facility is questionable given the Council's issue of a permit for a hotel and reception centre with 50 gaming machines in Wallace Avenue, Point Cook and the existing club at Sneydes Road, Point Cook, "The Brook on Sneydes".
- The amendment and permit application are inconsistent with strategic planning for the Point Cook growth area that has occurred over many years. These policies have envisaged a school (plus oval) and then medium density residential development as now reflected at Clause 21.04-4 of the Scheme and consistent with the land's zoning. An hotel with gaming machines was never planned in this location and is not an expected outcome for local residents and property owners.
- The proposal will result in an entertainment facility with a wide drawing capacity being located in a lower order activity centre. This will alter the nominated local convenience or neighbourhood role of the Sanctuary Lakes activity centre. Unlike another amendment to the development plan that allowed a convenience restaurant, the proposal will have a negative impact on strategic objectives for the area.
- The review site is well suited to medium density housing consistent with the zoning, the existing development plan, the proximity to the activity centre and its facilities, and previously issued planning permits. The opportunity to add to housing diversity will be lost.
- The proposal will have unacceptable off-site amenity impacts in terms of noise and hours of operation. It does not achieve an acceptable outcome when tested against the local policy at Clause 22.13. It will not have a minimal impact and is of a scale and intensity that would not enhance services to the local community without eroding amenity. Concerns arise with respect to the need for ongoing management of external spaces and the visual impact of acoustic measures.
- Previous permits issued for the residential development of the review site provided for the extension of Architecture Way to Point Cook Road. This will be prevented by the proposal leaving residents with no ability to turn right from Point Cook Road into Architecture Way.
The Council did not pursue arguments with respect to social impacts and the socio-economic impacts of the gaming component of the proposal. Mr Rantino stated these considerations would be pursued by the Council in any submission to the Victorian Commission for Gaming Regulation. It was not suggested by Mr Rantino that any, or significant, weight be given to the Council's policy that essentially prevents any new gaming machines.
All grounds advanced by the Council were challenged by the applicant in both proceedings including through its expert witnesses. Support for the proposals by Council officers was noted.

Are the amendments to the development plan acceptable?

From the mid 1990s, a lower order community/activity centre to service a growing population has been planned through strategies and studies relating to activity centres, the Point Cook growth area and Sanctuary Lakes. The need for an activity centre in the general vicinity of the review site has been consistently identified but the location has shifted and the centre's size has grown.[6] The now built activity centre, which the review site abuts, is known as the Sanctuary Lakes shopping or activity centre. Based on current Scheme provisions, it is a neighbourhood activity centre[7] and it is identified in the Local Planning Policy Framework as a local retail centre.[8]
Local policy in the Scheme makes clear the desire to implement, and review where necessary, the activity centres strategy and, at Clause 22.01, to vary concept plans as required. It also makes clear that activity centres are places for people to work, shop and recreate and will contribute to social interaction within the community.[9] In this context, a proposal that can enhance dining, entertainment and recreation facilities for the community cannot be rejected outright as being inconsistent with a shopping centre; the nature, intensity and scale of the proposed use must be considered in terms of the land's physical and planning contexts.
The request to amend the development plan is to facilitate an hotel. It is not retail floorspace that is akin to, or would compete with, shops, peripheral sales or a supermarket. These types of retail premises, offering goods and commodities for sale, are the types usually identified in floorspace limits.[10] Instead, the hotel would offer food and drink for consumption as well as gaming for recreation/entertainment. Function rooms (300 person limit) and community spaces (free of charge) would also be available.
Adding 2,955 square metres of proposed hotel floor space to the existing centre (6,500 - 7,692 square metres)[11] or the already approved size of 12,500 square metres, would not be a significant leap. It would not change the place of this centre in the hierarchy in numerical terms. If one takes into account the 1991 Werribee Growth Area Activity Centres Strategy cited in Clauses 21.05-5 and 22.05, then a centre with 10,000 - 30,000 square metres of retail gross leaseable floorspace fits a "community" centre profile.
It would not fit the "local" category that cites 5,000 square metres. But it is relevant to my conclusion that firstly, the existing centre is already approved beyond that limit as accepted in other strategic documents[12] and secondly, the local policy does not appear to specify any community centres.[13]
Although an outcome of the proposal would be to expand the activity centre, insofar as that term describes a range of activities not just retailing, there are further reasons why I am not persuaded that a use of the type proposed in the requested amendment to the development plan would fundamentally alter the role of the activity centre or its place in the hierarchy.
First, I am satisfied that the use would fulfil a local purpose mindful that there appear to be few bars, bistro/dining, entertainment and function facilities in the immediate area. The proposed hotel is not intended to host very large functions akin to large receptions discussed in Walker Corporation. [14] In addition, Ms Peterson's evidence helps to explain the likely catchment for the gaming component of the facility. Her evidence was that the majority of patrons for a metropolitan venue would be drawn from a catchment within 5km with the greatest concentration of patrons within a 2.5km radius. I recognise and expect the hotel would have some wider draw as many hotels and gaming venues can. But it is not primarily a regional facility that is more appropriately directed to a higher order activity centre. Even if one was to assume that the land to the west of the existing shopping centre was developed as currently proposed to a total of 17,000 square metres, the total commercial floorspace for the enlarged activity centre would be around 20,000 square metres including the hotel floor area.
Second, the proposal can be seen as having some benefits insofar as it would add a new land use/activity as an adjunct to the existing activity centre. That is on land that abuts the shopping centre and can share some facilities (such as the loading driveway). The proposal would supplement the range of facilities and activities available in this central location, on an arterial road, to the benefit of the local community in a readily accessible area. It is a place where a wider group of non-residential uses had been envisaged in the earlier strategic planning (schools) while the Council has approved new non-residential uses such as a child care centre and convenience restaurant that were not expressly cited in those strategic planning studies. Those two new uses offer different types and levels of service but are said by the Council to service local needs. I am persuaded the hotel can too even though its catchment may well be wider than those non-residential facilities.
Third, the Council did not present any arguments that the proposal would undermine the function and role of other activity centres in the hierarchy albeit there are other hotel and gaming facilities (eg. Sneydes Road) and approval for a hotel with gaming machines at the Point Cook town centre.
Such arguments, should they have been able to been supported, would have been more relevant to the ground that the need for the facility is questionable. However, the absence of an argument that the proposal will undermine the hierarchy in the Council's case is itself revealing.
Fourth, the local policy at Clause 22.13 does not nominate hotel or gaming uses. A policy objective is to locate non-residential uses in areas that are appropriate to the intensity and scale of the proposed use. The policy includes: "Major facilities serving catchments beyond the local level should be located in commercial areas or sited on roads, which avoid extra generation of traffic on residential streets" [emphasis added]. Even though the phrase "catchment beyond the local level" is not defined, it is noteworthy that the review site can be said to comply with this policy objective given the main road location that avoids traffic on residential streets.
In terms of gaming, it is important that the review site is not in a strip centre or a prohibited location. It is on the edge or periphery of an existing activity centre and facilities has been designed to provide physical separation so as to avoid the risk of impulse gambling. I have been assisted by Ms Peterson's evidence in reaching my findings - firstly, the location is not one likely to result in a significant social impact; secondly, the socio-economic profile of the community and catchment is not of a level of disadvantage and risk to warrant a finding that the location is unsuitable for gaming machines having regard to the objectives and decision guidelines in Clause 52.28; and thirdly, the density of gaming machines in the municipality would be lower than calculated in the officer's report to Council.
Another consideration raised by the Council is what might be lost if the development plan is amended. The opportunity for medium density housing adjacent to the activity centre would be reduced. But not all housing would be lost, as the proposal involves an area of some 0.4ha to the north-west, abutting the rear of a large number of existing residential properties, as medium density housing.
Four lots (three dwellings) would abut the hotel car park with sizeable setbacks to the hotel itself. This is a different outcome than likely with the former nomination of the whole of the review site for a school(s) and an oval and, more recently, medium density housing. However, the requested amendment to the development plan will not cause a prohibited use to become permitted as hotel use is in section 2 of the Residential 1 Zone. Moreover, public consultation invited by the Council about the amendment through letters and a newspaper advertisement drew only one objection.[15] I do not downplay that objection but the limited response is of interest. Provided site planning ensures the impacts of the use can be contained off-site amenity impacts are not unreasonable, the site is appropriate to provide for a complimentary land use to the existing activity centre.
Another of the Council's grounds is that land zoned Business 1 is available to the west of the existing centre. This is where there is a current application for an extension of the retail floorspace with supermarkets. A hotel may physically fit on that land but it would be accessed from a road that is not within a Road 1 or 2 Zone unless alterations were made to the supermarket car park. Using a local road would not accord with policy[16] and gives rises to a higher level of potential impacts on residential amenity.
For the above reasons, I am satisfied that the proposed amendment to the development plan is acceptable to allow an hotel (including gaming machines) and community uses in strategic and locational terms. The next part of these reasons focuses on more detailed planning and layout considerations with respect to the permit application.

Is the proposal acceptable in terms of its layout and potential for off-site amenity impacts?

The key issues arising with respect to the detailed design and layout of the hotel and gaming facilities focus on the potential for off-site amenity impacts. In addressing these matters below, I summarise my conclusions on some other aspects of the layout as follows:
- The built form outcome is acceptable being primarily a single storey building with a small double storey element. I understand the Council may have some concern about the architectural expression of the building but that was not articulated in any detail at the hearing. Any changes can be dealt with by permit conditions. I will also require signage to be lowered so as not to sit above the parapet and roof.
- The building turns its back on the existing shopping centre and shares accessways to loading areas with the abutting shops thereby providing some sense of separation which is appropriate with respect to the gaming component. Some pedestrian connectivity is, however, available along the Point Cook Road.
- The volume of car parking proposed, at 350 spaces, is 24 spaces short of the peak parking demands for all areas of the hotel assuming concurrent peaks in all bars, dining and gaming rooms. This is, however, unlikely other than in exceptional circumstances. Based on Mr Fairlie's evidence that peak demands will not typically coincide, a peak around 8pm on a Saturday evening would be around 289 spaces. If there is concurrent use of the community rooms to the maximum proposed number of 200 persons, there would be a demand for 359 spaces. I am satisfied that with around 340 spaces would be sufficient to cater for expected parking needs on most occasions.
- Access to the site has been agreed with VicRoads including a deceleration lane. A right turn lane is already constructed for south-bound vehicles.
- There is no road connection to Architecture Way (a road to which three houses have frontage). I do not consider the absence of such a link is a critical failing mindful that there are sufficiently convenient options to access Architecture Way from the arterial road. The absence of through traffic may be regarded by some as a benefit.
- Landscaping and acoustic fencing can be accommodated without unreasonable visual impacts for residents.
The hotel building would be well setback from the closest dwellings at No. 3 Ikon Drive, No. 5 Castle Court and No. 19 Architecture Way. The first two are single storey while the latter is double storey. There are additional dwellings fronting Windsong Way that back onto that part of the site that is proposed to remain designated as medium density housing but would also be exposed to the hotel until such time as the intervening land is developed. Other dwellings are on the east side of Point Cook Road.
The applicant agreed at the hearing to remove loading at the south-west of the site. With that change, the remaining potential impacts arise from noise emissions from the hotel and its external floor area and use of the car park. Five outdoor areas are proposed - one each for the bistro (facing east), cafe (facing east), gaming (facing north toward a child care centre), sports terrace (facing north-west) and function courtyard (facing west).
Mr Huybregts' evidence was that noise emissions can be controlled to achieve compliance with the applicable State Environment Protection Policies N-1 and N-2 as well as sleep disturbance criteria. Measures proposed included glazing treatments to some external spaces, limits on their use, a perimeter acoustic fence, and staff parking within 30 metres of the double storey dwelling at No. 19 Architecture Way.
I give weight to this evidence and the ability to achieve an acceptable acoustic environment. I will, however, require the northern fence around the sports terrace to be entirely fence type 2. Further, I accept the evidence that the acoustic environment for dwellings that abut the proposed medium density housing area would accord with the same criteria.
I am, however, concerned about the proximity of parking spaces abutting No. 3 Ikon Way and No. 5 Castle Court as well as the confined landscaping opportunities at these pinch points and with No. 19 Architecture Way. By increasing setbacks, car activity would be further removed from the direct interfaces while additional landscaping can be provided. I will require the deletion of car spaces #1 - 10 inclusive and their replacement with landscaping and the deletion of car spaces #175 - 178 inclusive abutting No. 19 Architecture Way and their replacement with landscaping. While these buffers are generous, I think the outcome would be appropriate in the circumstances. The changes would result in the loss of 14 spaces however approximately five car spaces can be gained with removal of sliding gate to the south-west boundary. The net outcome would be 341 spaces to service the development which is acceptable based on Mr Fairlie's evidence.
I record that during the course of the hearing, a number of suggestions arose with respect to alterations to the parking layout and revised acoustic treatments based on further background noise measures by Mr Huybregts. I have taken these into account in the conditions I will include on the permit.
In addition:
- the applicant agreed to a number of conditions such as a patron management plan, construction management plan, free use of the community rooms, and deletion of any loading to the south-west of the site with a fence to be placed along this southern edge instead.
- I will adopt waste collection and delivery times recommended in Mr Huybregts' evidence rather than more liberal hours suggested by the Council.
- I will require a temporary turning circle to be provided for Castle Court but the same is not necessary for Architecture Way as Mr Rantino conceded at the hearing.
- I will require some additional details to be provided, such as barrier type A.

I find the proposal to amend the development plan to be acceptable and direct that it be determined to be to the responsible authority's satisfaction.
With that amendment approved, the proposal contained in permit application no. WYP2004/08 would be generally in accordance with the adopted development plan under DPO2. I find the proposal to be acceptable subject to further changes that can be addressed by permit conditions.

The development and/or use(s) permitted by this permit must not be commenced until three copies of a site layout plan and floor plans drawn to scale and with dimensions are submitted to and approved by the responsible authority. When approved, the plans will be endorsed and will then form part of this permit. The plans must be generally in accordance with the application but modified to show:
- (a) Changes to car parking abutting the closest residential properties as follows:
  - (i) Deletion of car spaces #1 - 10 inclusive and their replacement with landscaping.
  - (ii) Deletion of car spaces #175 - 178 inclusive abutting No. 19 Architecture Way and their replacement with landscaping.
- (b) Deletion of the gate and notional truck movements shown on TP002 to the south-west of the site. The gate and access area must be replaced with barrier type A (consistent with the balance of this boundary treatment) and continuation of the row of car spaces along this southern boundary.
- (c) Details of "barrier type A (acoustic wall)".
- (d) Any changes in elevations agreed with the responsible authority.
- (e) Functional layouts for entry and egress to the site from Point Cook Road.
- (f) Provision of temporary turning circles at the termination of Castle Court within the subject site.
- (g) Acoustic treatments comprising:
  - (i) A 2.4 metre high acoustic fence around the site's western and northern boundaries;
  - (ii) The café terrace enclosed with a 1.8 metre high toughened glass fence or equivalent;
  - (iii) The bistro terrace enclosed with a 2.4 metre high toughened glass fence or equivalent and sound absorptive treatment of the hotel wall in this terrace area;
  - (iv) The northern fence around the sports terrace to be entirely fence type 2;
  - (v) Works required to the building, including the location of suitably baffled plant and equipment, to achieve compliance with Condition 9;
- (h) Amendments to the patron numbers shown on TP100 (Revision P8) so as to be consistent with Conditions 5 and 6.
- (i) Location of bin storage required by Condition 24.
- (j) Details of business identification signage that must be positioned below the parapet and roof of any building.
- (k) Nomination of staff-only parking areas including all car spaces within 30 metres of No. 19 Architecture Way.
- (l) A schedule of all external materials and finishes (including colour samples) detailing the materials, colour and finish of all external walls, roof, fascias, window frames, privacy screens, glazing types, fencing, and doors.
Prior to the commencement of development, detailed landscaping plans must be submitted to the satisfaction of the responsible authority. These landscaping plans must show street trees, understorey and ground planting, entry treatments, all plantings within the site, landscaped buffers between car parks and adjoining residential allotments, acoustic treatments, treatment of pathways and accessways through the site, and all surface treatments. Landscaping in accordance with the approved plans must be completed prior to the use commencing and thereafter maintained to the satisfaction of the responsible authority.
Before the development start(s), the owner must enter into an agreement with the responsible authority made pursuant to Section 173 of the Planning and Environment Act 1987 to provide for the following:
- (a) Securing access for loading purposes utilising the driveway to the south of the site.
- (b) Dwellings developed on the balance of the land (in the area designated as medium density housing to the north-west of the hotel) must be accompanied by an acoustic report to show how the dwellings achieve an internal noise level of 50-55dBA Lmax with windows open.

Before the development starts, application must be made to the Registrar of Titles to register the Section 173 agreement on the title to the land under section 181 of the Act. The owner/operator under this permit must pay the reasonable costs of the preparation and execution and registration of the Section 173 agreement.

The development and/or use(s) permitted by this permit as shown on the endorsed plan(s) and/or described in the endorsed documents must not be altered or modified (for any reason) except with the prior written consent of the responsible authority.
Unless with the prior written consent of the responsible authority, the use permitted by this permit must operate only between the following times and with the following maximum number of patrons:

The outdoor areas are limited in operation as follows:
- (a) East side - Café terrace and bistro terrace :
  - (i) Smoking only at all times.
  - (ii) No food or drink permitted at any time.
  - (iii) Patron numbers are to be limited as follows:
    - Café terrace - 10 persons.
    - Bistro terrace - 30 persons.
- (b) North and west sides - Gaming courtyard, sports terrace and function courtyard :
  - (i) Smoking only at all times.
  - (ii) No food or drink permitted at any time.
  - (iii) Closed after 10.00pm.
  - (iv) Background music only that must be limited in accordance with the recommendation of an acoustic engineer to achieve compliance with Condition 9.
  - (v) Patron numbers are to be limited as follows:
    - Gaming courtyard - 20 persons.
    - Sports terrace - 20 persons.
    - Function courtyard - 30 persons.
The first floor assembly rooms must be available for use, free of charge, to the satisfaction of the responsible authority.
Before the use and/or development start(s), a Patron Management Plan to the satisfaction of the responsible authority must be submitted to and approved by the responsible authority. The Plan must be prepared by a suitably qualified person or firm and must detail how the venue will operate and be managed to avoid unacceptable off-site impacts. When approved the plan will be endorsed and will then form part of the permit.

(a) At all times during the operation of the use, there must be present on the premises a person over the age of 21 years who is responsible for ensuring that the activities on the premises and the conduct of persons attending the premises do not have a detrimental impact on the amenity of the locality;

(b) Staffing and security arrangements for the premises, including staffing and security to manage the number of patrons and behaviour of patrons on and associated with the premises;

(c) Arrangements for the supervision of external smoking areas by staff after 10.00pm to minimise any noisy behaviour;

(d) Measures to manage any patrons queuing to enter the premises;

(e) Measures to ensure compliance with Conditions 5, 6 and 7.

(f) Monitoring of patrons during peak times by professional crowd security persons;

(g) Training of staff in the management of patron behaviour;

(h) Complaint identification and management;

(i) Security measures to provide for the orderly departure of patrons from the premises at night time.

The Patron Management Plan must not be modified without the prior written consent of the responsible authority, and the premises must be managed in accordance with the Patron Management Plan to the satisfaction of the responsible authority.

Noise emissions must at all times comply with the Environment Protection Act 1970, State Environmental protection policy (Control of Noise from Commerce, Industry and Trade) No. N-1, State Environmental Protection Policy (Control of Music Noise from Public Premises) No. N-2 and the Health Act 1958 the satisfaction of the responsible authority.
The use permitted by this permit must not, in the opinion of the responsible authority, adversely affect the amenity of the locality by reason of the processes carried on; the transportation of materials, goods or commodities to or from the subject land; the appearance of any buildings, works or materials; the emission of noise, artificial light, vibration, smell, fumes, smoke, vapour, steam, soot, dust, waste water, waste products, grit, or oil; the presence of vermin, or otherwise.
Goods, equipment or machinery must not be stored or left exposed outside a building, including car parking and landscape areas so as to be visible from any public road or thoroughfare.
Any form of public address system and telephone amplification must not be used on the subject land except one which is audible only within the perimeter of the subject site.
Outdoor lighting must be designed, baffled and located to the satisfaction of the responsible authority such that no direct light is emitted outside the boundaries of the subject land. Security lighting must not be activated continuously but designed to respond to sensors only.
The boundaries of all car spaces, access and egress lanes and the direction in which vehicles should proceed along the lanes must at all times be clearly indicated on the ground to the satisfaction of the responsible authority.
A sign or signs must be provided to the satisfaction of the responsible authority to direct drivers to the on-site car parking area(s). Such sign(s) must be located in the vicinity of the frontage of the subject land and maintained to the satisfaction of the responsible authority. The sign(s) must not exceed 0.3 square metres in area.
Areas set aside for the parking and movement of vehicles as shown on the endorsed plan(s), including designated staff parking, must be made available for such use and must not be used for any other purpose.
Areas set aside for the parking of vehicles together with the aisles must be properly formed to such levels that they can be utilised in accordance with the endorsed plan and must be drained and provided with an impervious all-weather seal coat. The areas must be constructed, drained and maintained in a continuously useable condition to the satisfaction of the responsible authority.
A crossover must be provided at the access to the subject site, and must accord with Council's standard requirements. Approval for the crossover must be sought via an application for a Road Opening Permit.
A concrete kerb of a minimum height of 150mm or such other form of barrier as the responsible authority may approve, of sufficient height to prevent the passage of vehicles, must be provided where necessary to prevent vehicles causing damage to garden areas, walls, fences or any other property, to prevent vehicular access/egress other than where driveways are provided and to prevent vehicles projecting beyond the boundaries of the subject land.
Disabled parking bays must be adequately identified by the use of both signs and linemarking.
The exterior treatment of the building(s) permitted by this permit including all exterior decoration, materials, finishes and colours must be to the satisfaction of the responsible authority. The exterior treatment of the building(s) must be maintained to the satisfaction of the responsible authority.
The use(s) permitted by this permit must not be commenced until:
- (a) the parking area(s) as shown on the endorsed plan(s) have been constructed to the requirements and satisfaction of the responsible authority;
- (b) the access treatments as shown on the endorsed plan(s) have been constructed to the requirements and satisfaction of the Responsible Authority and VicRoads;
- (c) the garden and landscape area(s) shown on the endorsed plan(s) have been planted to the requirements and satisfaction of the responsible authority;
- (d) temporary turning circle as required by Condition 1(f); and
The whole of the subject land, including landscaped and paved areas, must be drained to the legal point of discharge to the satisfaction of the responsible authority, and must accord with the following requirements:
- (a) The development must incorporate underground drainage to cater for 1 in 5-year return, and connect to Council's underground stormwater drainage system.
- (b) Provisions are to be made within the development (eg. on-site retention in recessed areas of car parking and hard standing) to adequately manage the additional flow created between allowable stormwater discharge and post development stormwater discharge.
- (c) All stormwater inlet pits from car parking and paved areas must be grated and incorporate litter baskets, to prevent the ingress of gross pollutants to Council's stormwater drainage system.
An area on the subject land must be set aside for the purpose of a waste disposal, bin collection and for the cleaning of rubbish bins. Such area must have minimum dimensions of 2.4 metres wide by 1.8 metres deep and where located outside a building it must be screen-fenced so as not to be visible from any public road or thoroughfare. The waste bin area must be provided prior to the commencement of the use permitted by this permit, maintained and used to the satisfaction of the responsible authority and must not be used for any other purpose.
Delivery times are restricted to 9.00am-5.00pm on any day unless otherwise with the prior written consent of the responsible authority.
Waste collection times are restricted to the following times:
- 7.00am-6.00pm Monday to Friday;
- 7.00am-1.00pm Saturday.
The premises must ensure 'No Smoking' signs are displayed and all outdoor dining areas comply with the requirements of the Tobacco Act 1987.
Prior to the commencement of any building and works a Construction Management Plan must be submitted to and must be approved by the responsible authority detailing the construction activity proposed. The plan must include, but not be limited to:
- (a) Hours of construction;
- (b) Parking and traffic movement of all workers vehicles and construction vehicles;
- (c) Works timetable;
- (d) Any impacts upon the adjacent loading bay, adjacent roads and pedestrian walkways and providing for adequate movement and circulation of vehicles and pedestrians adjacent to the land during the construction phase;
- (e) Access routes for construction vehicles;
- (f) Proposed parking locations for construction vehicles and construction workers vehicles;
- (g) Temporary fencing works;
- (h) Number of workers expected to work on the site at any time;
- (i) Methods for limiting escape of dust and litter from the site.
- (j) In the event of mud, crushed rock or other debris being carried onto public roads or footpaths from the subject land, appropriate measures to be implemented to minimise the problem;
- (k) Construction and/or demolition works must comply with the requirements specified in the Environment Protection Authority's Noise Control Guidelines.

Once submitted and approved the works detailed by the plan must be carried out to the satisfaction of the responsible authority.

Functional layout plans shall be submitted to and approved by VicRoads prior to any works on site showing the following:
- (a) Proposed crossover;
- (b) Proposed Deceleration Lane designed and constructed in accordance with guidance contained in AustRoads' "Guide to Traffic Engineering Practice" and VicRoads' "Road Design Guidelines";
- (c) Appropriate signage, line marking and pavement marking should be designed and installed in accordance with the Traffic Engineering Manual - Volume 2 signage and Markings (Dec 2001) at no cost to and to the satisfaction of both VicRoads and the responsible authority.
There shall be no gate or other obstruction to the movements of vehicle within 8 metres of the property line.
All vehicular movements to and from Point Cook Road shall be made in a forward manner.
The proposed crossover shall have a minimum clearance of 1.0 metre from any fixed objects such as trees, power poles, or street furniture.
At no cost to VicRoads and the responsible authority, the developer will be responsible for the relocation of any road furniture and other services that may be required in this work.
Worksite traffic management practices for all work undertaken within the Anderson Road East reserve adjacent to the subject property shall in accordance with VicRoads "Worksite Traffic Management (Roadworks Signing) Code of Practice" which includes Australian Standard AS 1742.3-2002 "Manual of Uniform Traffic Control Devices Part 3: Traffic Control devices for Works on Roads".
All works associated with the development are to be completed at no cost to VicRoads and to the satisfaction of VicRoads and the responsible authority.
A construction traffic management plan is to be submitted and approved by VicRoads at least 14 days prior to any work on site.
All works within the declared road must be performed at no cost to VicRoads.

This permit will expire if one of the following circumstances applies:
- (a) The development and use is/are not started within two years of the date of this permit;
- (b) The development is not completed within four 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 months afterwards.

[1] As shown on the plan prepared by Bate Architecture Project no. 07037, Drawing no. TP300, dated 14.01.2008.

[2] Development Plan No. DP0032/08 was adopted on 25 November 2002. The plan has been amended twice and the most recent adopted version is dated 30 July 2009.

[4] The Council gave non-statutory notice of the proposed amendment to the development plan including letters to abutting property owners and occupiers and a notice in a local newspaper. One objection was received.

[5] Including Clauses 11, 12, 14, 15.01, 16.02, 17.01, 17.02, 18.02, 19.03, 21, 22.01, 22.05, 22.13, 32.01, 43.04, 56 and 65. I was referred to a series of strategic documents, some of which are referenced in the Scheme, including the Wyndham Growth Area Framework Plan 2006, Werribee Growth Area Activity Centres Strategy 1991 and subsequent draft strategies addressing activity centres in Wyndham, Point Cook Concept Plan (1996), Point Cook Concept Plan report (2000), Place of Assembly and Worship Guidelines, Electronic Gaming Machine Policy (adopted not within the Scheme) as set out in Mr Rantino's submission and attachments. I have considered all of these materials mindful that those that are not referred to in the Scheme, or not referenced in the Scheme, do not have the weight of the Scheme provisions and policies.

[6] For example, in the 1996 Point Cook Concept Plan the local community activity centre and school were east of Aviation Road (now known as Point Cook Road). The Point Cook Sub-region Retail Floorspace Needs Study referred to a local centre as 1,000 - 6,000 sq.m. A 1998 Activity Centres Strategy refers to a permit issuing for a supermarket based shopping centre at 12,5000m2 at the corner of Point Cook and Sneydes Road (that is south of the current Sanctuary Lakes shopping centre). In the Point Cook Concept Plan Report 2000 a "community activity centre 12,500 GLFA" is shown on the west side of the Point Cook Road with a smaller centre in the area now known as Sanctuary Lakes estate. A 2006 draft Activity Centres strategy, now superseded by later uncompleted work, refers to the Sanctuary Lakes shopping centre as a "neighbourhood large" centre with an existing floor area of 6,500 m2 with room for expansion to the west. The same centre was proposed at that time to be a "large neighbourhood centre" in the hierarchy (7,000m2 to 15,000m2 retail floorspace) with floor space guides being referred to as indicative at page 41.

[8] Clause 21.04 Map 2 Wyndham Strategic Framework Plan, Clause 21.05 Map 6 Availability of Local and Regional Employment and Map 7 Activity Centre Locations.

[10] Such as those found in the schedule to the Business 1 Zone in the Wyndham Planning Scheme.

[11] Different figures are referred to in the material before me. The latter is in Mr Fetterplace's evidence at page 3.

[12] Point Cook Concept Plan Report 2000.

[13] Only three categories appear to be displayed on Maps 2, 6 and 7 in Clause 21- local, sub-regional and regional.

[14] Walker Corporation Pty Ltd v Wyndham CC [2007] VCAT 1396 and specifically paragraph 60 and footnote#33.

[15] The letter refers to a hotel but does not appear to expressly cite the gaming machines. Clauses 52.28 is referenced in the objection. The Council's also refers to the exclusion of third parties in the process. These factors may have influenced the level of submissions.

Environment Act 1987

De Group Pty Ltd v Wyndham CC [2010] VCAT 607 (6 April 2010)

De Group Pty Ltd v Wyndham CC [2010] VCAT 607

At a glance

Court

Decision date

Before

Source

Judgment (43 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (1)

De Group Pty Ltd v Wyndham CC [2010] VCAT 607 (6 April 2010)