Victorian Civil and Administrative Tribunal|2008-10-09|Before: Ms J

The application requirements and the decision guidelines of the Business 2 zone are also relevant to our consideration of this issue. Dwellings are a permit required use in the zone. An application to use and to develop land must be accompanied by specified information. The nature of that information will vary depending on the context of the site and the nature of the proposal. The combination of the application requirements and the decision guidelines amount to a requirement for a site analysis and design response and in part, are intended to allow consideration to be given to, amongst other matters, the effect that existing uses may have on the proposed use[8]. These provisions of the Business 2 Zone also need to be read in conjunction with Clause 19.03 and Clause 52.35 of the planning scheme which require a contextual approach to be taken in the design of residential development of four or more storeys.
These provisions of the planning scheme are important in the context of the planning scheme's policy framework which encourages increased residential densities in and around activity centres and in zones other than residential zones, where uses which give rise to off site amenity impacts (including noise) are often located.
Clause 55 of the planning scheme (which is concerned with the construction of two or more dwellings on a lot and residential buildings) does not apply to the consideration of this application because the site is zoned Business 2 and because the proposal is for a development of four or more storeys. However, the objectives, standards and decision guidelines of Clause 55 are often relied on to provide guidance on relevant matters about such issues as amenity impacts of new residential developments. The objective of Clause 55.04-8 is;

Noise sources, such as mechanical plant, should not be located near bedrooms of immediately adjacent existing dwellings.

Noise sensitive rooms and secluded private open spaces of new dwellings and residential buildings should take account of noise sources on immediately adjacent properties.

Dwellings and residential buildings close to busy roads, railway lines or industry should be designed to limit noise levels in habitable rooms.

The applicable decision guideline states that before deciding on an application, the responsible authority must consider the design response.
Clause 55.04-8 is in our view, consistent with the State Planning Policy at Clause 15.05 and it provides a useful guide as to the appropriate approach to be adopted in circumstances where residential uses are being located adjacent to external noise sources.
Neither the State Planning Policy Framework nor the provisions of the Business 2 zone have the effect of reversing the obligation on the college to comply with SEPP N-1 and N-2. Nor do they have the effect of imposing an obligation on the permit applicant to carry out noise attenuation works or to fund works to bring the college auditorium into compliance with N-1 and N-2. The policy framework and the zone provisions do however, establish a planning framework in which the impacts of existing uses, including noise impacts, are given appropriate consideration in the assessment of a proposal which introduces a new sensitive use into a locality in which external noise sources exist. Where the proposal includes dwellings and residential buildings, the proposal should be designed to limit noise levels in habitable rooms.
As we have detailed previously the configuration of the proposal incorporates dwellings, balconies and terraces at each level of the podium above ground level and on two levels above the podium. Having regard to the fact that we are requiring level 3 to be deleted for the reasons previously outlined, we calculate that 13 dwellings located on the western side of the building, are likely to be affected by noise generated by the auditorium. It is these dwellings which in Ms Hui'e evidence, will be affected by noise which exceed the limits prescribed by SEPP N-1 and N-2.
We agree with Mr De Young that the proposal in its present configuration has not been designed to respond to external noise sources. We disagree with Mr De Young however, that the proposal must be designed so as to ensure that SEPP N-1 and N-2 are complied with. We reiterate, compliance with N-1 and N-2 is an obligation which rests with the Swinburne Secondary College. In our view the test which needs to be met by the permit applicant and the designers of the proposed building is to ensure that the building has been designed to respond to its context and where the site is located where there exist external noise sources, to limit noise levels in habitable rooms.
We have considered a number of matters in assessing the extent to which this proposal has been successfully designed to respond to its context and in particular to the existence of external noise sources.
The first is that having regard to the orientation and configuration of the site, an appropriate design for this site will desirably include dwellings with habitable room windows and doors to balconies and terraces facing west. Any reduction in the articulation and formulation of the western elevation would be a very poor urban design outcome.
It might be said of course that having regard to the site's context and the existence of external noise source, the site is not suitable for residential use. We do not accept that contention, and we reiterate our previous findings that the planning scheme provides very strong support for developments in this location which provide for increased residential densities. Similarly, we are satisfied that the external noise sources generated by the college are not so great as to make this site unsuitable for residential development.
A further matter we have had regard to in assessing the site responsiveness of this proposal, is that based on the documentation available to us[9], the college provided very scant information during the application objection period and following the lodging of the application for review, about the issue of noise emanating from the auditorium. Any reading of that documentation would lead to the conclusion that the issue was a minor or even peripheral component of the college's objection. The circulation of Ms Hui's evidence prior to the hearing, provided the first real indication of the college's concerns. Ms Sharp confirmed during the course of the hearing that the Council was not aware that acoustic matters formed any significant part of the college's objection. We do not think that the permit applicant can be reasonably criticised for failing to respond to the issue of an external noise source emanating from a school, when the college itself failed to identify it as a significant issue until just prior to the hearing.
Notwithstanding these observations, we are confronted with a proposal which introduces residential uses into a context where some of those uses are likely to be affected by external noise from the auditorium. We are satisfied that subject to relatively minor changes which can be introduced by way or permit conditions, the design of the proposal can be modified to achieve an acceptable outcome in terms of limiting noise levels in habitable rooms.
We raised with the parties during the hearing the prospect of the affected dwellings being treated with noise attenuating building techniques to limit internal noise levels. Mr De Young pointed out that this would not obviate the need for the college to comply with the SEPP's and as such was not regarded as an acceptable outcome. The condition we have imposed is not intended to allow the college to abrogate its responsibility to comply with the SEPP's but rather to ensure that a reasonable level of amenity is provided for future residents of the proposed development.
The conditions we have imposed derive from the acoustic standards which apply in the Capital City Zone under the Melbourne Planning Scheme and which have been commonly applied over many years in circumstances where sensitive uses are being introduced into localities where external noise sources are present.
As we have mentioned above Mr De Young referred us to two decisions of the Tribunal which in his submission supported the view that the permit applicant ought to be required to assume responsibility for bringing the auditorium into compliance with the SEPP's. The cases referred to by Mr De Young were determined by the Tribunal on the particular facts and circumstances applying in those cases. In Australia Postal Corporation v Darebin CC [2005] VCAT 1454 the Tribunal was considering an application made under Section 87 of the Planning and Environment Act and the condition imposed which required the permit applicant to fund works on adjoining land to bring that use into compliance with SEPP N-1 was a condition agreed to by the parties. We accept Mr Pitt's submission that the agreement reached was in part driven by the difficulties confronted by the permit applicant in terms of compelling Australian Post to comply with a SEPP which it would not otherwise be required to do. These circumstances do not apply in the case before us.
In Macrobuild Pty Ltd v Boroondara CC [2004] VCAT 1989 the Tribunal was considering an application for a four storey residential development located adjacent to or near to an engineering workshop and a motor garage. The Tribunal directed that a permit be issued but imposed a condition requiring changes to the design and construction of the proposed building to ensure compliance with SEPP N-1.
For the reasons we have outlined above, we do not think that the circumstances applying in the present case warrant the approach adopted by the Tribunal in Macrobuild. The type of design changes required by the Tribunal (removal or enclosure of balconies and changes to the internal configuration of the proposed building) would result in a very poor design outcome. We are satisfied that the conditions we have imposed are sufficient to ensure that a reasonable level of amenity is provided for future residents of the proposed development by limiting noise levels in habitable rooms.
With respect to the use of the college car park in front of the auditorium, we do not regard this as a significant factor in our deliberations. The car park is accessed from Burwood Road which is a main road carrying high traffic volumes at all times of the day. In this context we think that a small car park used primarily by college staff and visitors is unlikely to contribute to significant adverse amenity impacts on future residents, especially having regard to the conditions we have imposed in relation the acoustic treatment of the proposed building. We also agree with Ms Hui's evidence that control of amenity impacts associated with this car park is appropriately addressed by the college.

Does the proposal have other unacceptable impacts on the College?

The other issue raised by the college related to concerns about overlooking from west facing habitable rooms and balconies, of a courtyard located to the east of the auditorium . It was Mr De Young's submission that this courtyard is a valued recreation space for students and that screening should be included in the design of the proposal to further limit overlooking of this area.
We do not agree. The courtyard is located in excess of 20 m from the nearest balcony. We are unaware of any planning requirement to limit views of any open space or recreational space located that distance from a viewing vantage point. We also think that a distinction needs to be drawn between private, secluded open space associated with a dwelling, the overlooking of which ought to be protected and is required to be protected by planning controls, and the overlooking of a space frequented by secondary college students at various times of the day during school hours.
Concerns were also raised about the impact of construction activity associated with the proposal, especially during VCE exam times. We were advised that examinations are conducted in the auditorium.
This is a matter which is appropriately addressed through a construction management plan process. We have imposed a condition requiring a construction management plan to be prepared and approved by the Council. We do not think it is appropriate to specify that construction be prohibited during these times, but the plan should specify modified hours and types of activities which could be undertaken during these times.

Does the proposal contribute to unacceptable traffic impacts and does it provide for adequate car parking?

It was the Council's submission that the proposal fails to provide adequate on site car parking. In particular it was submitted that car parking for the office use should be provided at the rate specified in clause 52.06 primarily because of the lack of available long term parking in the area. Similarly the Council submitted that while the provision of one parking space per dwelling is acceptable, visitor parking should be provided.
The objectors expressed a general concern about increased traffic movements associated with the proposal, increased on street car parking, and the use of the surrounding streets including laneways to gain access to the rear car park.
Mr Butler provided expert evidence on traffic and parking matters. He recommended the provision of an additional two car stacker units to be used for the office component but was otherwise satisfied that adequate on site car parking had been provided. Mr Butler identified a shortfall of short term parking of 13spaces during business hours, 9 spaces during weekend evenings and 13 spaces on weekends. It was Mr Butler's evidence that at the times that the proposal generated demand for on street parking, spaces are generally available in the area.
With respect to traffic impacts, Mr Butler estimated that the proposed development as a whole will generate 44 vehicle movements during the morning peak hour and 42 during the afternoon peak hour. Of these movements it was estimated that 7-8 movements would occur via the laneway system to the rear of the site. On the basis that the rear car park is to be designated for use by office staff, these movements can be expected to be inbound in the morning peak and outbound in the afternoon peak. Mr Butler was satisfied that the laneways would adequately accommodate the additional vehicle movements. The impact of the additional vehicle movements on Burwood Road was described by Mr Butler as negligible.
Mr Butler's evidence was not disputed by contradictory expert evidence.
For reasons unrelated to car parking and traffic considerations, we have required one level (the third level) to be removed from the proposal. The application plans show that this level accommodates 11 dwellings. The removal of this level clearly has consequences for the provision of car parking for the residential component of the proposal. We are of the view that car parking should be provided in accordance with the rate for each of the proposed uses recommended by Mr Butler.

Is the internal amenity offered by the building acceptable?

The Council raised some concerns about the internal amenity of some of the proposed dwellings, in particular the reliance on borrowed light for some habitable rooms.
We note that this issue was not vigorously pursued by the Council. We do not share the concern that has been expressed. The number of habitable rooms which rely on light courts is relatively small. It is also significant that all main living areas in all the dwellings have access to windows on the external face of the building. In this context we are satisfied that the proposal provides for a more than acceptable standard of internal amenity.
We have imposed a condition requiring an increase in the area and dimension of some of the light courts which as drawn are inadequate.
While there is general Council support for ground floor retail space in this precinct, for this proposal we think it is appropriate to moderate this retail component. Additional space should be allocated for the front entry foyer, with the entry doors to this foyer positioned closer to Burwood Road. These doors should be no further north than gridline F. The area between gridlines E & F, from the east to the west boundary, should be reallocated as internal lobby space. We are of the view that these changes would improve the internal public amenity to this building considerably.

It follows from the above reasons that it is the Tribunal's conclusion that the decision of the responsible authority should be set aside and a permit be granted.
In deciding the conditions to be included on the permit we have had regard to the draft conditions provided to the Tribunal by the responsible authority and the submissions and evidence of the parties in addition to the matters which arise from these reasons.

Before the commencement of the development, amended plans to the satisfaction of the Responsible Authority must be submitted to, and approved by, the Responsible Authority. The plans must be drawn to scale with dimensions and must generally accord with the plans considered by the Tribunal (identified as Job No. 07030, all Revision A, dated 21 May 2008, prepared by Interlandi Mantesso Architects) but modified to show:
- (a) The deletion of level three of the building (marked on the substituted plans as TP2.06A) and the consequent reduction in the overall height of the building.
- (b) The details (including, but not limited to model, type, size and platform width) of the proposed car stackers.
- (c) The allocation of all car spaces to the satisfaction of the Responsible Authority;
- (d) The widening of the vehicle crossing to Burwood Road to a minimum of 6.4m as measured at the property boundary, to the satisfaction of the Responsible Authority;
- (e) The vehicle crossing to Burwood Road physically designed to only provide left-in / left-out access, including the provision of a 'seagull' traffic island installed in the mouth of the crossover to direct traffic for left-in / left-out movements only, to the satisfaction of the Responsible Authority;
- (f) Any redundant vehicle crossings to Burwood Road must be reinstated to the satisfaction of the Responsible Authority;
- (g) The provision of signs facing drivers entering and exiting the property via Burwood Road that only left-in / left-out movements are permitted at any time. Signs are to be located and designed to the satisfaction of the Responsible Authority;
- (h) The provision of a 1m deep recess from the northern boundary for the entry doors to the proposed substation, such that any doors to the substation would swing open entirely within the boundaries of the subject site;
- (i) Details of the recommendations and actions made by a suitably qualified arborist to protect the existing four (4) canopy trees abutting the west boundary with the Swinburne Senior Secondary College site that are located adjacent to the proposed basement access, to the satisfaction of the Responsible Authority;
- (j) The provision of privacy screening to all north-facing balconies on Levels 1 to 4 to a minimum height of 1.7m;
- (k) Wind amelioration measures, as required by an appropriately qualified person;
- (l) An increase in the dimensions of the proposed northern-most and southern-most light courts in the east and west elevations, to the satisfaction of the Responsible Authority;
- (m) A schedule of external materials and finishes (incorporating colour samples) to the satisfaction of the Responsible Authority.
- (n) Additional space allocated for the front entry foyer, with the entry doors to this foyer positioned closer to Burwood Road. These doors should be no further north than gridline F. The area between gridlines E & F, from the east to the west boundary, should be reallocated as internal lobby space.

When approved, the plans will be endorsed and will then form part of this Permit.

The use and development as shown on the endorsed plans must not be altered without the written consent of the responsible authority.
Prior to the construction of the building hereby approved commences either:
- A certificate of environmental audit must be issued for the land in accordance with Part IXD of the Environment Protection Act 1970; or
- An environmental auditor appointed under the Environment Protection Act 1970 must make a statement in accordance with Part IXD of that Act that the environmental conditions of the land are suitable for a residential use.
Before the construction of the building hereby approved commences, a copy of the certificate of environmental audit and/or statement, and the complete audit report and audit area plan must be submitted to the Responsible Authority.
The development and use allowed by this permit must comply with the directions and conditions of any statement of environmental audit issued for the land.
Prior to the occupation of the dwellings, a letter must be submitted to the Responsible Authority by an Environmental Auditor accredited with the EPA, to advise that all construction and remediation works necessary and required by an environmental audit or statement have been carried out.
Any handling and disposal of contaminated site soil must be in accordance with the requirements of any statement of environmental audit issued for the land, the requirements of the Environment Protection Authority and the Environment Protection Act 1970.

Prior to the commencement of the development hereby permitted, an Acoustic Engineer accredited by the Association of Australian Acoustical Consultants must assess the impact of surrounding noise sources emanating from the Swinburne Secondary College auditorium at all hours and recommend specifications to the design of the west facing habitable room windows and dwelling units to limit internal noise levels in habitable rooms to a maximum of generally 45dB(a) in accordance with the relevant Australian Standards for acoustic control.
Prior to the endorsement of the plans referred to in Condition 1, the owner of the land must enter into and execute an agreement with the Responsible Authority pursuant to Section 173 of the Planning and Environment Act 1987 to the satisfaction of the Responsible Authority and such agreement shall contain a covenant that the original purchaser and each successive purchaser of any dwelling on the site acknowledges the fact that, at the time the construction of these dwellings was approved, the subject site was located adjacent to non-residential uses and which, or the successors of which, may still operate and which were, at that time, the source of potential noise nuisance for residents of the subject site.

A memorandum of the Agreement is to be entered on title and the cost of the

preparation and execution of the Agreement and entry of the memorandum on title is to be paid by the owner.

Disabled access to the building must be provided to the satisfaction of the Responsible Authority.
Before a building permit is issued, an Environmentally Sustainable Design Report which is to the satisfaction of the Responsible Authority must be prepared by a suitably qualified expert and submitted to the Responsible Authority. The report must address the ESD principles proposed for the site including but not limited to, energy efficiency, water, waste and building materials. Once approved, the report will be endorsed to form part of the permit.
Prior to the commencement of the development hereby approved, a Car Parking Management Plan to the satisfaction of the Responsible Authority prepared by an appropriately qualified traffic consultant must be submitted to and approved by the Responsible Authority. When approved, the car parking management plan will be endorsed and form part of this permit. The car parking management plan must include (but it not limited to):
- (a) the allocation of car parking spaces to residents, occupants, customers, visitors and other car space users;
- (b) the category of persons allowed to use car spaces, and the control of access to car spaces;
- (c) fees (if any) for use of the car spaces by persons other than residents, occupants of commercial tenancies and their employees;
- (d) car park area security, including lighting;
- (e) traffic management devices and signage (including automated signage) for the safe and efficient use of the car park;
- (f) measures for the management of the car park in accordance with this plan, including the use of on-site personnel where required.

The plan must not be revised without the consent of the Responsible Authority. The car park area must be used in accordance with the provisions of the plan to the satisfaction of the Responsible Authority. The Car Parking Management Plan must be implemented and complied with at all times to the satisfaction of the Responsible Authority, unless with the further written approval of the Responsible Authority.

All signs, mirrors and line marking must be maintained in good order and appearance to the satisfaction of the Responsible Authority.
The areas set aside for parking of vehicles, together with the associated access lanes as delineated on the endorsed plans must:
- (a) Be provided and completed to the satisfaction of the Responsible Authority prior to the commencement of the development hereby permitted;
- (b) Thereafter maintained to the satisfaction of the Responsible Authority;
- (c) Be made available for such use at all times and not used for any other purpose;
- (d) Be properly formed to such levels that it can be used in accordance with the endorsed plans; and
- (e) Be drained and sealed with an all weather seal coat.
All deliveries to the site must only be undertaken between the hours of 7:00am and 7:00pm Monday to Saturday and 9:00am to 5:00pm on Sunday unless with the further written consent of the Responsible Authority. These times do not include newspaper deliveries.
All new vehicular crossings must be constructed in accordance with Council's standard vehicular crossing specification.
Prior to the commencement of development a wind effects report must be prepared by a suitably qualified person and submitted to the Responsible Authority for approval. Such report must identify and set out recommendations and actions required to minimise detrimental wind effects as a result of the design of the proposed development. The recommendations and actions contained in the report must be implemented to the satisfaction of the Responsible Authority, unless with the further written approval of the Responsible Authority.
Alarms associated with the commercial premises must be directly connected to a security service and must not produce noise beyond the premises.
Outdoor lighting must be designed, baffled and located to the satisfaction of the Responsible Authority to prevent any adverse effect on nearby land.
The amenity of the area must not be detrimentally affected by the use or development, through:
- (a) The transport of materials, goods or commodities to or from the land;
- (b) The appearance of any buildings, works or materials;
- (c) The emission of noise, artificial light, vibration, smell, fumes, smoke, vapour, steam, soot, ash, dust, waste water, waste products, grit or oil; or
- (d) The presence of vermin.
All pipes (except down-pipes) fixtures, fittings and vents servicing any building on the site must be concealed in service ducts or otherwise hidden from external view to the satisfaction of the Responsible Authority.
Reticulated electricity must be provided underground to the subject land and all buildings on the land, to the satisfaction of the Responsible Authority.
Provision must be made of the site for letter boxes and receptacles for papers to the satisfaction of the Responsible Authority.
Noise from the premises must not exceed limits prescribed by the State Environment Protection Policy (Control of Noise from Commerce, Industry and Trade) No. N-1, to the satisfaction of the Responsible Authority.
Noise from the premises must not exceed limits prescribed under State Environment Protection Policy (Control of Music Noise from Public Premises) N-2, to the satisfaction of the Responsible Authority.
Before the commencement of the development, 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 and will then form part of the permit. The Construction Management Plan must include the following matters:
- (a) A pre-conditions survey of all Council roads;
- (b) Construction team details;
- (c) Arrangements for construction activities during VCE examination times conducted at the Swinburne Secondary College.
- (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) Parking facilities for construction workers;
- (g) Methods for management of noise and general nuisance;
- (h) Operational matters;
- (i) Security;
- (j) Waste and stormwater treatment;
- (k) Construction program;
- (l) Preferred routes for trucks delivering to the site;
- (m) Delivery and unloading points and expected frequency;
- (n) Regular newsletters to inform nearby residents, commercial operators and Swinburne Senior Secondary College of the progress of the work;
- (o) An outline of requests to occupy public footpaths or roads, or anticipated disruptions to local services;
- (p) A liaison officer for contact by residents and the Responsible Authority in the event of relevant queries or problems experienced and who is available 24 hours;
- (q) 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.

The Construction Management Plan must be implemented and complied with at all times to the satisfaction of the Responsible Authority unless with the further written approval of the Responsible Authority.

During the construction phase of the development, the following conditions must be met:
- (a) Only clean rainwater may be discharged to the stormwater drainage system;
- (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 from the premises must not accumulate on the roads abutting the site;
- (d) All machinery and equipment must be cleaned (if required) on site and not on adjacent footpaths or roads;
- (e) All litter (including items such as concrete bags, food packaging and plastic strapping) must be disposed of responsibly; and
- (f) All site operations must comply with the Environment Protection (Residential Noise) Regulations 1997.
All works including earthworks, demolition and construction activity associated with the approved development is to be limited to the following hours, unless with the prior written consent of the Responsible Authority or unless varied by the Construction Management Plan:

All storm water drainage within the property not absorbed by water storage tanks must be connected to the nearest Council pit of adequate depth and capacity (legal point of discharge), to Council's satisfaction.
Prior to the issue of a building permit, the owner must obtain the consents of all relevant authorities for any buildings or works, including any paving, fences and landscaping, over any easement or underground services under the control of a public authority including sewers, drains, pipes, wires or cables, to the satisfaction of the Responsible Authority and relevant authority.
The owner must accept all reinstatement costs in carrying out repairs to any buildings, works or landscaping over the easements should such buildings, works or landscaping be disturbed by any works undertaken by Council in the future.
The walls on the boundary of adjoining properties shall be cleaned and finished in a manner to the satisfaction of the Responsible Authority.
Prior to the commencement of development, a report from a qualified arborist must be submitted to the Responsible Authority for approval. Such report must identify all trees within a 5m radius of the boundaries of the subject site and set out recommendations and actions required to minimise damage as a result of buildings and works (including any demolition, vegetation clearance, earthworks or works arising from the provision of underground services) to the health of trees located on the Swinburne Senior Secondary College premises at 505 Burwood Road Hawthorn, in proximity to the western boundary of the subject site, to the satisfaction of the Responsible Authority. The recommendations and actions contained in the report must be implemented to the satisfaction of the Responsible Authority.
The pruning that is required to be done to the canopy of any existing trees located on adjacent properties that overhang the boundaries of the subject site are to be done by a qualified arborist to Australian Standard - Pruning of Amenity Trees AS 4373 - 1996, Standards Australia.

Any pruning of the root system of any existing trees that encroach into the subject site is to be done by hand by a qualified arborist.

Prior to the commencement of development a Waste Management Plan must be submitted to the Responsible Authority for approval. Such plan must provide details of a regular garbage and recyclables collection service to each of the uses on the subject land, including information regarding the type of refuse bins, type/size of trucks, means of accessing bins and frequency of refuse collection, to the satisfaction of the Responsible Authority. Once approved, such plan must be implemented and complied with at all times to the satisfaction of the Responsible Authority.
The Owner's Corporation must provide a regular private waste collection including a regular collection of recyclable materials from the land to the satisfaction to the Responsible Authority. Council's waste collection contractor will not service dwellings on the land. This condition must be brought to the attention of all prospective purchasers of dwellings to be constructed on the land by inclusion of a copy of the planning permit in the Vendors Statement affecting the land.
Collection of waste must be conducted so as not to cause any disturbance to nearby residential properties and may only occur between the hours of 7:30am and 8:00pm Monday - Saturday and 9:00am to 8:00pm Sundays and Public Holidays, to the satisfaction of the Responsible Authority.
Any future subdivision of the land must ensure that the bicycle parking facilities for visitors to the building are located within common property.
This Permit will expire if:

(a) The development and use does not start within two (2) years from the date of this Permit; or

(b) The development is not completed within four (4) years of the date of this Permit.

The Responsible Authority may extend the time referred to if a request is made in writing before this Permit expires or within three (3) months after the expiry date.

[1] Clause 21.08 Boroondara Planning Scheme.

[2] Mr Czarny recommended a number of other design changes and his evidence also relied on a number of site context issues as justification for a lower building. We will address these matters subsequently.

[3] Gout Pty Ltd v Yarra City Council (VCAT Reference 2000/88113)

[4] These programs include music lessons, drama classes activities by the Children's Performing company of Australia, the Hawthorn City Pipe Band and the Festival of Art. The auditorium is also used for other school activities including examinations, parent teacher interviews and speech nights.

[7] Australia Postal Corporation v Darebin CC [2005] VCAT 1454, and Macrobuild Pty Ltd v Boroondara CC [2004] VCAT 1989.

[8] Clause 34.02-2 Boroondara Planning Scheme.

[9] The original objection to the proposal by the Swinburne Secondary College and the Statement of Grounds lodged with the Tribunal.

Environment Act 1987

Environment Protection (Residential Noise) Regulations 1997

Drive Projects Pty Ltd v Boroondara City Council [2008] VCAT 2096 (9 October 2008)

Drive Projects Pty Ltd v Boroondara City Council [2008] VCAT 2096

At a glance

Court

Decision date

Before

Source

Judgment (37 paragraphs)

Parties

Legislation Cited (3)

Cases Cited (1)

Drive Projects Pty Ltd v Boroondara City Council [2008] VCAT 2096 (9 October 2008)