Victorian Civil and Administrative Tribunal|2011-09-19

DSL Securities v Cardinia SC [2011] VCAT 1842 (19 September 2011)

Sections 77 & 79 of the Planning & Environment Act 1987; Cardinia Planning scheme; Residential 1 Zone; Development Plan Overlay; Subdivision; Development and use of an hotel; Gaming machines; Social impact; Amenity; Siting & Design; Car parking.

Melbourne Water, VicRoads, South-East Water, Telstra, APA Group, SP Ausnet, Country Fire Authority, Department of Sustainability and Environment.

DSL Securities v Cardinia SC [2011] VCAT 1842

In application P3444/2009, pursuant to section 127 and clause 64 of Schedule 1 of the Victorian Civil & Administrative Tribunal Act 1998, the permit application is amended by substituting for the permit application plans, the following plans filed with the Tribunal:

PHB-1122-TP-01 Proposed Site Plan/Floor Plan; PHB-1122-TP-02 Proposed Elevations; PHB-1122-TP-03 Proposed Elevations & Section.

PHB-1122 PER 01Concept Perspective View - General View from North-West: West Façade; PHB-1122 PER 02 Concept Perspective View - Close-up View from North-West: North (Street) Façade; PHB-1122 PER 03 Concept Perspective View - General View from North-East: East Façade/Main Entrance; PHB-1122 PER 04 Concept Perspective View - General View from South-East: Service Area; PHB-1122 PER 05 Concept Perspective View - General View from South-West: Functions Centre Entrance.

In application P3444/2009, the decision of the Responsible authority in relation to permit application no. T090457 is set aside.
A permit is granted in relation to land at 13 May Road, Beaconsfield. The permit will allow
- Development and use of an hotel;
- Installation and use of sixty (60) gaming machines;
- Use of the land for the sale and consumption of liquor (General Liquor Licence); and
- Removal of native vegetation

The permit is subject to the conditions contained in Appendix A to these reasons.

In application P2626/2010, pursuant to section 127 and clause 64 of Schedule 1 of the Victorian Civil & Administrative Tribunal Act 1998, the permit application is amended by substituting for the permit application plans, the following plans filed with the Tribunal:

0900064 Ver: 07a Indicative Site Masterplan - Interim Design

0900064 Ver: 07a Indicative Site Masterplan - Eventual Design

In application P2626/2010, the decision of the Responsible authority in relation to permit application no. T100453 is set aside.
A permit is granted in relation to land at 13 May Road, Beaconsfield. The permit will allow the subdivision of the land into five (5) lots in accordance with the endorsed plans.
The permit is subject to the conditions contained in Appendix B to these reasons.

Mr C Townshend SC and Ms S Brennan of counsel, instructed by Bazzani Scully Brand. Evidence was called from the following persons:

Ms A Ring, Town Planner of SJB Planning Pty Ltd.
Mr A Wyatt, Landscape Architect of Environmental Resources Management Australia.
Ms C Peterson, Town Planner of Ratio Consultants Pty Ltd.
Mr A Brennan, Ecologist of Brett Lane & Associates Pty Ltd.
Ms E Hui, Acoustic Engineer of Marshall Day Acoustics.
Mr S Hunt, Traffic Engineer of Cardno Grogan Richards.

Mr N Crawford, Solicitor of TP Legal. Evidence was called from the following persons:

Mr R Milner, Town Planner of 10 Consulting Pty Ltd.
Mr C Czarny, Urban Designer of Hansen Partnership.
Mr D Robertson, Traffic Engineer of Traffix Group.

Mr P Connor of counsel instructed by Planning & Property Partners. Evidence was called from Mr A Clarke, Town Planner of Matrix Planning Pty Ltd.

For Cardinia Ratepayers & Residents Association Inc.

Development and use of an hotel, including the installation and use of gaming machines. The development is to accommodate a sports bar, lounge bar, two bistros, children's play room, 4 function rooms (separated by operable walls), and a gaming lounge. Maximum 650 patrons. On-site car parking for 270 vehicles.

Subdivision of the land into five lots. The hotel use is proposed to be located on Lot 3 which is to have an area of 1.82 hectares.

Application under Sections 77 (P3444/2009) and 79 (P2626/2010) of the Planning and Environment Act 1987.

Abuttal to a road in a Road Zone Category 1 (RDZ1).

Cl. 32.01-6 (construction of buildings and works associated with a Section 2 use in R1Z).

Cl. 52.06 (reduction of the car parking requirements).

Cl. 52.28 (installation and use of gaming machines).

Cl. 10, 11, 15.01, 17.01, 17.02, 18.01, 21, 22.04, 32.01, 43.04, 52.06, 52.17, 52.27, 52.28 and 65.

The review site is a substantial parcel of land situated on the north-west corner of May Road and Princes Highway in Beaconsfield. The land is an irregular allotment, more particularly described as Lot 1 on Plan of Subdivision PS503575. It has an area of 7.47 hectares. The land rises to a high point proximate to its south-east corner (referred to as 'Pink Hill'), and has a fall of some 21 metres from east to west. While the property is largely cleared, the 'hill' supports a number of established trees and a former farmhouse, which is understood to be vacant.

To the north is a residential subdivision known as the Beaconhill Grange Estate. It comprises of conventional residential allotments exceeding 1000 square metres in area. These lots have been developed in the form of detached dwellings. The review site also adjoins the Beaconsfield Community Centre. This facility accommodates a community hall, kindergarten, maternal & child health centre and a toy library.

To the west, on the opposite of O'Neill Road, is public open space (sporting oval and associated car parking). To the east, on the opposite of May Road, are larger residential land holdings and a place of worship (Beacon Gospel Trust).

To the south, is the Princes Highway, beyond which is further residential development comprised of both conventional lots and low-density properties.

There are two applications for review as part of this proceeding. One concerns a subdivision of the subject land and the other concerns the establishment of an hotel and the installation and use of gaming machines on one of the lots created by the subdivision.
The overall proposal has had a long gestation period. The permit application for the hotel was originally lodged with council in mid 2009. The delay has been beneficial because we consider that both proposals have improved considerably as a result of the consultation and review process.
Both proposals have been contentious. The subdivision was originally refused by the council on the basis of adverse implications, which the location of the connector road through the subdivision would have on the future strategic planning for the Officer area. Through a private mediation involving the Growth Areas Authority, these concerns have been resolved and there is now no contention regarding the layout of the subdivision proposal.
The contention surrounding the hotel proposal centres on the installation and use of gaming machines. A significant number of objections were received by the council opposing this aspect of the proposal. Because there is a Development Plan Overlay applying to the land, third parties have no rights of review. Nevertheless, the Tribunal has previously made a series of orders giving certain persons, including community groups, an opportunity to be heard in respect of this application.
A consideration of the hotel proposal falls into two categories:
- The use of the land for gaming machines.
- The planning merits of the proposed buildings and works.
We have concluded that this is a suitable site for an hotel of the type proposed and also that it is a suitable location for gaming machines. We consider that the hotel will provide an attractive and a popular facility for the present and future population of this growth area. Whilst there is a strong core of community opposition to the introduction of gaming machines, they are a lawful use of land and we consider this is a suitable location for them. There are no good planning reasons why the application for the installation and use of gaming should be refused.
We will now deal with these issues in more detail.

In 2009, approval under the Gambling Regulation Act 2003 was granted for an hotel with 60 gaming machines on the land. This application was opposed by the council before the Commission, but the council did not seek to review the Commission's decision.
The Commission addressed issues relating to location, electronic gaming machine (EGM) density, risk and vulnerability of the community, community opposition and responsible gaming practices. In its decision, the Commission said:

The Commission is impressed by the magnitude of the proposal and the range of services that would be available to the local residents of Beaconsfield, Officer and Berwick. The proposed hotel is eight kilometres from the nearest venue in the Shire of Cardinia and will result in a broader distribution of egms within Cardinia. The Commission has given serious consideration to the submission made by the Council in relation to egm density but considers that the reality of future population growth and development in the area provides justification for introducing further gaming venues in this area.

In response to the council's submission that the location of the venue was inappropriate, the Commission said:

A factor which caused the Commission concern has been the location of the proposed venue. Although the proposed hotel is to be on an elevated part of the subject land, the road which is to run through the subject land will provide greater ease of access for residents on the subject land and adjacent housing. The proposed site is approximately one kilometre from the commencement of Beaconsfield township, and approximately two kilometres from its main shopping area, but will be relatively proximate to residential housing and to a playing field, a community centre and child minding centre, all on O'Neill Road, on, and/or opposite to the western boundary of the subject land. However, specific locational issues will be addressed in the planning review by VCAT and the Commission is satisfied that the venue will be sufficiently separated from neighbouring residential and community amenities.

Having weighed up all positive and negative impacts as presented on behalf of the Applicant and Council, the Commission is satisfied that approval of this application will not result in any net social and economic detriment to the well-being of the surrounding community.

At the hearing before us, the council maintained its opposition to the gaming machines on the basis that the location is inappropriate having regard to the following factors:
- It will provide an inappropriate level of convenience, and be attractive to, visitors to the Kindergarten and Community Centre nearby;
- It is not located in or adjacent to an activity centre; and
- It is within a residential area within walking distance of a number of residential properties.
Mr Milner's evidence on behalf of the council was that the merits of granting a permit for 60 gaming machines is secondary to the question of whether an hotel should be allowed. He considered that this was an inappropriate location for an hotel. However, we disagree for reasons that we discuss in greater detail later.
The only issue about location explicitly relating to gaming machines is the issue about whether its location will provide an inappropriate level of convenience and attraction to problem gamblers. The need to avoid such situations underlies the provision in the planning scheme in clause 52.28 that prohibits gaming machines in specified shopping complexes and strip shopping centres.
Ms Colleen Peterson gave evidence on behalf of the applicant about the social and economic impacts of the proposal and other matters contained within clause 52.28 of the planning scheme. She was satisfied that the location of the hotel is a suitable location for gaming as required under clause 52.28 because it is:
- Located in an area that shows few signs of social and/or economic disadvantage;
- Located in a municipality where the expenditure and density of gaming machines is well below the State and metropolitan averages;
- Located in an area that has not been identified by Council's gaming policy as being unsuitable for gaming;
- Located in an area that generally has access to gaming, with venues in Berwick and Pakenham;
- Located within a venue that provides a complete entertainment offer, and will provide best practice for the provision of responsible gaming;
- Separated from community facilities to the west. The absence of existing or likely future 'ant trails' will limit risk associated with potentially vulnerable people attending these venues also using the gaming machines; and
- Located approximately 100 metres from the western edge of the proposed Officer Neighbourhood Activity Centre and 450 metres from its core, separated by a residential allotments as proposed under the Draft Officer Precinct Structure Plan.
We accept Ms Peterson's evidence. In colloquial terms, the hotel might be described as being within a 'Goldilocks' location. It is close to but not within the proposed Whiteside Road Neighbourhood Activity Centre under the Officer Precinct Structure Plan. Its proximity to the activity centre is not too close nor yet too far. It is just right. People will need to travel purposefully to the venue to engage in gaming. They will not pass the venue incidentally in the course of their shopping or undertaking other activities within the activity centre. The venue will offer other attractive facilities for eating, drinking and socialising. It will not be a venue devoted solely or primarily to gaming. There is already access to gaming machines within the municipality and we accept Ms Peterson's evidence that the introduction of 60 gaming machines in a multi purpose recreation and entertainment venue will have little impact on accessibility or access to machines for problem gamblers. People with existing problems are already able to access machines within the region and travel to these venues to participate in gaming, so that additional machines at this venue are not likely to contribute to additional problem gambling.
We find that the location of this venue is sufficiently separated from any activity centres so it is unlikely to increase risky behaviour by problem gamblers. Its location requires patrons to make a conscious decision to visit the venue rather than participate in so called risky behaviour because it just happens to be on their way to somewhere else. We consider that the location is in line with other VCAT decisions, which have encouraged gaming venues to be located at the edge or near the periphery of activity centres, but not within them. This ensures that gaming venues benefit from proximity to these venues but are not located so as to encourage convenience gambling.[1]
A key issue to consider in determining whether a permit to install and use gaming machines under clause 52.28 is the suitability of the location and the premises. We conclude on both these issues that:
- The location is appropriate and is compatible with adjoining and nearby land uses.
- The gaming premises will be part of a venue that will provide a full range of hotel facilities and services to patrons for eating, drinking and socialising. The premises are therefore appropriate for the installation and use of gaming machines.

We acknowledge that there is a strong core of opposition to the installation of gaming machines in this hotel. This opposition reflects an opposition to gaming in general, rather than a concern about the specific locational attributes of this particular proposal. The exception to this is the opposition from Beacon Gospel Trust.
Community views were expressed succinctly by Mr Hocking on behalf of the Officer District Community Association Inc when he said:

The community does not agree or accept there should be electronic gaming machines in this location. ...

... Officer community sees no reason why its currently very secure community, both economically and socially, should be jeopardised because of some statistical reasoning that the district has a lesser number of gaming machines in other areas. This concern is considerably more relevant when, as it has been acknowledged, that some of those other areas are in fact seriously impacted by gambling problems.

The difficulty with this argument is that gaming is a legitimate and lawful activity within Victoria. It is also an activity that is enjoyed by many people. It is not open to the Tribunal to reject a planning permit application simply on the basis that the installation of gaming machines is opposed by sections, even large sections, of the community. As the Tribunal discussed in Minawood Pty Ltd v Bayside CC[2], the findings of the Court of Appeal in Macedon Ranges Shire Council v Romsey Hotel Pty Ltd[3] regarding the subjective perceptions of community members about their community in the context of the Gambling Regulation Act 2003 are not relevant in the different legislative framework of the Planning and Environment Act 1987. In Minawood, the Tribunal said:

[35] Whereas the Gambling Regulation Act 2003 is clearly concerned with the subjective perceptions of community members, matters which have been held to be relevant social effects under the Planning and Environment Act 1987 have tended to be more objective and evidenced in more tangible ways. ...

[36] The emphasis tends to be on 'community' rather than 'individual' social effects. There also needs to be a connection between the social effect and the use or development of the land: it is not about considering the likes or dislikes of people for the proposed use or development. Thus the Tribunal has not considered relevant objectors' views about the religion, ethnicity or socio economic status of people who will use a particular development. It has repeatedly said that aversion to a proposal that is otherwise a lawful activity on moral grounds is not a relevant social effect

Parliament has established two regimes for dealing with gaming machines. Permission for gaming machines is required under both the Gambling Regulation Act 2003 and clause 52.28 of the planning scheme. The Tribunal has previously emphasised[4] that there are different roles and responsibilities under the gaming and planning legislation. As the Tribunal said in Bright Newbay Pty Ltd v Bayside CC[5]:

[9] Two discrete permissions are required. The planning permission is focused upon whether it is an appropriate location suitable for gaming and, secondly, the social and economic impacts of the location. The gaming considerations include whether the net economic and social impact of the machines would or would not be detrimental to the wellbeing of the community of the municipal district in which the premises are located. Hence, it is our view that a more detailed analysis of the economic and social impacts upon the community is a matter that is best dealt with as part of the consideration under the Gambling Regulation Act rather than as part of the planning application.

In the present case, the Gaming Commission has determined that having regard to the economic and social impacts upon the community, it was appropriate to give permission for 60 gaming machines for this venue. We do not consider it is our role to revisit that finding, notwithstanding the views expressed to us by and on behalf of the community.
The Beacon Gospel Trust were particularly focussed in their opposition to gaming machines. Their place of worship is located opposite the hotel site in May Road. They say that the establishment of an hotel and gaming venue is antithetical to the religious and cultural values of their congregation. The members of the congregation are strongly of the view that the juxtaposition of a church with an hotel, including gaming, is incompatible and inappropriate. They say the introduction of the proposal will constitute a very negative element in their perception of the pleasantness and amenity of the neighbourhood in which members of the congregation live and worship. The neighbourhood will never be the same for the members of the Beacon Gospel Trust if this proposal is permitted. They submitted that the psychological affects of the proposal on the members of the congregation would constitute a social effect that the Tribunal should consider as a relevant planning impact. They refer to commentary by the Tribunal about psychological affects in relation to the establishment of funeral parlours.[6]
The commentary about the psychological affects of funeral parlours referred to by the Beacon Gospel Trust is inconclusive. In the early 1990's, there were different views expressed by the Tribunal about the weight to be placed on the psychological effects of funeral parlours and the consequential impact on the amenity of an area. We do not consider that this commentary and the cases discussed assist us. We regard the views expressed in Minawood as more accurately reflecting the current approach by the Tribunal to the relevance of views held by the community, either generally by groups or by individuals, on moral, religious or cultural grounds. Aversion to a proposal that is otherwise a lawful activity on moral grounds is not a relevant social effect.
We acknowledge that members of the congregation of the Beacon Gospel Trust perceive that their amenity will be reduced at their place of worship if the hotel with gaming machines is established. Nevertheless, even accepting that this is an amenity consideration, we do not consider it would outweigh the benefits of the proposal and the suitability of the location for these purposes.
We have therefore concluded that there is no basis for rejecting the proposal for the hotel or gaming machines on the basis of the aversion felt for these uses by members of the community in general or by the members of the congregation the Beacon Gospel Trust.

The subject land is in a Development Plan Overlay. Clause 43.04-1 provides that a permit must not be granted to use or subdivide land, construct a building or construct or carry out works until a development plan has been prepared to the satisfaction of the responsible authority. A permit granted must be generally in accordance with the development plan.
The council approved the Beacon Hill Grange Estate Development Plan ('Beacon Hill Development Plan') on 18 March 2002. The council says that the Beacon Hill Development Plan is an approved development plan within the meaning of clause 43.04-1, but that the hotel proposal is not generally in accordance with the development plan.
The Beacon Gospel Trust submit that there is no approved development plan applying to the subject site. It relies on the evidence of Mr Andrew Clarke that the Beacon Hill Development Plan does not include, or have application to, the subject site. The Beacon Gospel Trust says that no permit can be granted for either the subdivision or the hotel proposal. Alternatively, it says that the subdivision proposal and hotel proposal are not generally in accordance with the approved development plan.

We have had regard to the evidence of Mr Clarke and his analysis of the Beacon Hill Development Plan, but we do not agree with his conclusion that the development plan does not apply to the subject land. We find that the Beacon Hill Development Plan complies with the requirements of the Development Plan Overlay and Schedule 4 (DPO4).
The plans in appendices A and B of the Beacon Hill Development Plan include land to the north of the subject land for which a detailed subdivision layout and staging are shown. The subject land includes no such details but includes the notation: Future development consistent with Residential 1 Zone. We disagree with the Beacon Gospel Trust that the subject land is excluded from the development plan because it lacks detail.
The address given of the land in the development plan includes O'Neill Road, May Road and Princes Highway. All these roads abut the subject land, although the Princes Highway does not abut the land to the north. We regard this address/description, together with the fact that the land contained within the plans at appendices A and B includes the subject land, as evidence that it was intended to include the subject land as part of the development plan.
The development plan contains considerable detail about the land to the north and how it should be developed, but less detail about subject land. Nevertheless, the development plan is not devoid of detail about the subject land. In addition to the notation about future development consistent with the Residential 1 Zone, the plans in appendices A and B show the tree reserve, Melbourne Water easement and physical features in respect of the subject land. The development contribution schedule in appendix C refers to the subject land by its lot and subdivision details.
We therefore find that whilst greater detail is included within the development plan in relation to the land to the north of the subject land, this does not mean that the development plan does not apply to the subject land.
There were various other submissions and counter submissions put by Beacon Gospel Trust and the applicant, but we do not consider it is necessary to address them in detail because they do not affect our conclusion.

Are the applications generally in accordance with the development plan?

We find that both the subdivision plan and the hotel application are generally in accordance with the approved development plan. For reasons we discuss in more detail later, we find that both proposals are consistent with the Residential 1 Zone provisions, which is what the development plan specifies with respect to the subject land. This is the main requirement that dictates whether or not there is compliance with the development plan with respect to the subject land. In addition though, the tree reserve is included in the subdivision plan; the landscaping provisions of the development plan are reflected in the conditions of the permits; and provisions relating to development contributions are also reflected in the conditions of the subdivision permit.
In summary, we do not consider that there are any aspects of the development plan that the proposals for the subdivision or hotel are not generally in accordance with.

This application proposes the subdivision of the review site into five (5) lots, ranging in size between 3842 square metres and 2.181 hectares. The plan shows the following indicative land uses:
- Lot 1: Aged care
- Lot 2: Medical centre
- Lot 3: 'Future Development'[7]
- Lot 4: Residential
- Lot 5: Medium Density
The subdivision incorporates a proposed 'connector road' that is intended to link O'Neill Road with the proposed urban area to the east, known as the Officer Precinct. This road is to have a 33 metre wide reservation and, in its ultimate form, will have two lanes in either direction. It is identified as a 'Local Arterial Road' in the Officer Precinct Structure Plan.
The key issue in dispute in respect of the subdivision was the alignment of the proposed road, and its implications for the planning of the Officer Precinct. As a result of a private mediation, which involved the Council, Applicant and Growth Areas Authority (amongst others), an agreement on the road's alignment was reached. As we understand it, the appropriateness of the subdivision is not in contention. We were not provided with any submissions explicitly opposing the proposed subdivision and consider that it represents an acceptable outcome.

HOTEL USE & DEVELOPMENT - APPLICATION NO. P3444/2009

Is the proposed use supported by the policies of the Planning scheme?

The review site is within an identified metropolitan growth area. It is in a greenfields location, adjacent to the Officer Precinct Structure Plan area. This Precinct is located on the opposite side of May Road and will be developed into a large urban settlement accommodating 10,400 dwellings and an ultimate community of 26,700 residents. A Major Activity Centre, described as the Officer Town Centre, and a Neighbourhood Activity Centre (Whiteside Road Neighbourhood Activity Centre) form part of the Precinct. We were advised that the strategic vision of the Precinct Structure Plan will be given statutory effect by proposed Amendment C149 to the Cardinia Planning scheme. We were further advised that approval of the Amendment by the Minister is imminent. Relevantly, the review site is not included within the Precinct boundaries, nor is it within an existing or proposed activity centre.
There were competing views between the parties as to whether or not the proposal is consistent with planning policy relating to 'out-of-centre' development. Our attention was particularly drawn to Clauses 11 and 17 of the State Planning Policy Framework in support of these competing submissions.
Policy at Clause 11.01 directs business, shopping, working, leisure and community facilities to activity centres. The desired outcome is a diverse land use base within centres that are highly accessible to the community. Clause 17.01-2 has the objective of managing out-of-centre development in Metropolitan Melbourne. The related strategies are:

Ensure that proposals or expansion of single use retail, commercial and recreational facilities outside activity centres are discouraged by giving preference to locations in or on the border of an activity centre.

Ensure that out-of-centre proposals are only considered where the proposed use or development is of net benefit to the community in the region served by the proposal.

Discourage large sports and entertainment facilities of metropolitan, State or national significance in out-of-centre locations unless they are on the Principal Public Transport Network and in locations that are highly accessible to their catchment of users.

Before proceeding to consider the policy implications of locating the proposed hotel outside of an activity centre, we think it is necessary to give consideration to the zoning of the land.
The site is within the Residential 1 zone, a purpose of which is:

In appropriate locations, to allow educational, recreational, religious, community and a limited range of other non-residential uses to serve local community needs.

We accept that the proposed hotel use will serve local community needs. It is a facility that will offer a range of entertainment options for this growing community. It will be local meeting place, and will provide a venue that will cater for different social occasions. With a maximum capacity of 650 patrons, we consider that its scale places it in the category of a local facility, rather than one which will attract significant patronage from a sub-regional catchment. Even if it were to attract some patrons from beyond the immediate area (which we think it most likely will), this does not necessarily make it unacceptable or inconsistent with the above purpose of the Residential 1 zone. Previous Tribunal decisions have held that the local need test under the Planning scheme does not require that every patron must reside within an area which could be defined as 'local'. Frequently, non-residential uses draw from a wider catchment, but include persons from the immediate neighbourhood. We consider that this will be the case in this instance.
Under existing conditions, the development is not only clearly out-of-centre, it is not proximate to an existing activity centre. However, based on the Precinct Structure Plan, this will not always be the case. The proposed Whiteside Road Neighbourhood Activity Centre (NAC) is to be developed on the opposite side of May Road. Mr Milner estimates that the review site is some 125 metres from the western edge of the proposed NAC and approximately 350 - 350 metres from the business core. The intermediate area between the review site and the business core is identified in the Precinct Structure Plan as a location for higher density housing.
We have found the proximity of the site to the proposed NAC to be influential to our decision. While we acknowledge that locating the facility within an activity centre can result in the benefits identified by Mr Milner (such as contributing to the land use mix, establishing a synergy with other uses and sharing of car parking and other infrastructure), we have concluded that the proposal will be complementary to the NAC, notwithstanding that it is located outside its boundaries. It will be proximate to the activity centre's border and will certainly be within the centre's 'sphere of influence'. It will have some obvious relationship with the proposed activity centre and it will not result in a fragmented land use pattern, as would be the case if it were to be separated from the NAC by conventional residential development.
Policy requires us to be satisfied that an out-of-centre development/use will result in net community benefit. The Planning scheme does not provide any guidelines to assist us with this task. We have already indicated that we think this facility will be beneficial to the local community as a meeting place, entertainment venue, and a place where functions may be held. Further benefits, amongst others, are employment generation and a contemporary urban design outcome that will represent an attractive addition to the emerging built form composition of this developing area. We also think it relevant that the site is bounded by three roads, thereby making its amenity impacts more manageable to ensure that they are within acceptable parameters. As we will discuss later, the sole potential direct residential interface can be treated satisfactorily to ensure that the proposed development and use do not impact unacceptably on the amenity of this land.
Consideration, however, must also be given to potential disbenefits. These include the car-based nature of the facility, the potential limitations on the ability to establish synergies with other non-residential uses, and restricted opportunities for multi-purpose trips given the separation from the NAC.
On balance, we consider that the benefits of the proposal outweigh the disbenefits and on this basis have concluded that it will deliver net community benefit.

Is the siting and design of the development an acceptable response to its context?

There is general agreement among the parties that, as a built form outcome, the proposed development represents an acceptable design response. Mr Czarny acknowledged that it is a 'competent piece of architecture'. Similarly, Ms Ring stated that the architecture of the building is 'very good'. The dispute lies in the siting of the development and its relationship to the site's topography. These are the two key issues that we need to address.
The Council's submission, and evidence, is that the adopted siting is reflective of past, outdated, practices where venues such as this were positioned centrally on the land and surrounded by car parking. It was put to us that such an outcome does not represent an acceptable urban design solution, as it does not allow the development to engage with the street to provide activity and animation to the immediately adjoining public realm. Particular criticism was made of the proposed 39 metre setback from the proposed connector road, and the intended provision of car parking within this setback area. A further criticism was made of the proposed location of the main entry on the east side of the building, with the north elevation having an entry that is accessed by stairs, in response to a grade separation of some 2.0 metres.
The Applicant's position is that the siting is appropriate to the property's context as it will allow a landscaped interface with the street and achieve what was described as a subtle arrangement in terms of the building's visibility from the connector road. It was stated that the Council's preference for the building to be located closer to the street is more akin to what would be found within a commercial or industrial neighbourhood.
State policy, at Clause 15.01-2, has the objective of achieving architectural and urban design outcomes that contribute positively to local urban character and enhance the public realm while minimising detrimental impact on neighbouring properties. This Clause sets out a number of urban design principles that are to be applied to non-residential developments. A relevant principle in this instance is that the design of interfaces between buildings and public spaces, including the arrangement of adjoining activities, entrances, windows and architectural detailing should enhance the visual and social experience of the user.
At the local level, the MSS includes policies that address the role of urban design in creating attractive and functional environments[8]. A related strategy is to encourage urban design which creates a strong character and identity for the area, provides a functional built environment and promotes community and personal safety.
We consider that the proposed siting is acceptable. Within what will be developed as a predominantly residential context, we consider that positioning a building of this scale close to the street will detract from the more modest built forms that are likely to eventuate on the adjoining and opposite land. These are likely to be set back from the street and have vegetated front garden areas. A design response that places the development close to the frontage would accentuate the building's contrast with its environs. We think that, provided the front setback area is well landscaped to avoid the dominance of car parking at the street interface, the proposal will represent an acceptable outcome. Mr Wyatt's landscape plan provides for a significant level of planting throughout the car park area - comprising both evergreen and deciduous species. This includes not only trees, but also shrubs and groundcovers to provide screening and softening to this area.
Although not an urban design consideration, the setting of the building back from the street will also assist to reduce the impact of the proposed use on the amenity of the existing residential area to the north, and on the future development on the opposite side of the proposed connector road.
We understand the rationale of locating the main entry on the eastern side of the building. In this area, it will be directly accessible from the larger of the car parks, also being the one which is furthest removed from future (potential) residential interfaces to the west. This car park will be cut into the site, and will be below the level of May Road. This will have the effect of reducing its impact on the properties on the opposite side of May Road. While this results in the northern entry having a more subservient role in respect of pedestrian access to the facility, it nonetheless presents acceptably within the form and composition of the entire northern elevation. We acknowledge that its access via stairs may affect the ability of persons to enter and exit the premises from this point. It is, however, one of four entries and those persons wishing to enter at-grade will be able to use the other doors. We consider the north elevation to have sufficient articulation and visual interest, and that the proposed screen wall will not detract from the overall appearance of this side of the building. In response to the Council's concerns regarding the appearance of this wall, we will include a condition that requires all external finishes and colours to be to the Council's satisfaction.
As a whole, the review site has a considerable fall. It is inevitable that any development on the land will necessitate some cut and fill. This was fairly acknowledged by the parties. Indeed, the point was made that modifications to the topography to achieve developable areas are a characteristic of this locality. The creation of a single-level floorplate necessitates both cut and fill. In general terms, the cut is to occur at the eastern end of the land, with the fill being undertaken at the western end. The latter will require the construction of a retaining wall that is to extend for approximately 95 metres and, at its highest point, rise to 4.5 metres. This gabion retaining wall is to be set back 6.0 metres from the (proposed) western lot boundary, with the intervening area being a landscaped batter. Planting in this area is to comprise both trees and understorey shrubs, and the like.
The Council opposes the proposed earthworks and resultant altered topography, submitting that it is not a site responsive design. It was suggested that the development could adopt a split-level arrangement to 'step down' the slope. Concerns were expressed about the visual impact of the proposed retaining wall, due to the elevated nature of the site. These concerns also extended to the potential effect of this structure on the amenity of future dwellings on the adjoining land to the west.
Having heard and considered the evidence of Mr Wyatt, we are persuaded that the proposed response to the site's topography is acceptable. There is no question that the proposed western retaining wall is an extensive structure. We believe, however, that it will not have an unacceptable visual impact for three main reasons. Firstly, its gabion form, utilising material extracted from the site will allow its earthy tones to blend into the landscape. Secondly, due to the cross-fall of the land, the wall will not be a consistent height of 4.5 metres. The height will taper to the north and south. Thirdly, the proposed landscaped battered bank in front of the retaining wall will substantially screen the wall from view.
Mr Wyatt demonstrated that, even at planting, the proposed trees will have an immediate effect of partially screening the wall. As the understorey planting matures, it will effectively produce a landscape screen that will largely conceal the wall from view. Even if sections of the wall are visible through the vegetation, we consider that they will blend in with this landscape treatment. The 6.0 metre wide buffer will allow for the provision of substantial landscaping, which will also have the benefit of screening views of the site from the proposed future residential properties to the west. It is also relevant that, as the land to the west is developed, it is likely to have what may be described as a cascading form down to the slope as dwelling sites (and houses) are positioned to take advantage of westerly views. This may also mean that dwellings could be two-storey in order to capitalise on such views. Accordingly, although the development will be particularly obvious in the interim period, over time it will form an element of a broader urban context.
We agree with the Applicant that the excavation at the site's eastern end will assist in screening the largest car park from view and minimise the development's impact on the land to the east.
Having inspected the site and surrounds, we acknowledge that the site of the hotel building is prominent. It is on top of the elevated topographical feature known as 'Pink Hill'. It will be most visible from the west, including on the approach along the Princes Highway. Of itself, we do not think this is an unacceptable outcome. We find the building to be a well-designed structure with a contemporary architecture. In our view, it will be aesthetically pleasing. In conjunction with the proposed landscaping, we think it will represent a good urban design outcome that will make a positive contribution to its context. Although large, it is on a substantial site, adjacent to a major thoroughfare and within a developing area where larger buildings, including dwellings, are not unusual. Again, the future development to the west will have the effect of providing a built form context that, to a degree, will temper the prominence of the building, as will the landscaping, once established.
The Council expressed concerns regarding the extent of the proposed tree removal, and submitted that there is insufficient evidence that the Application adopts the three-step model provided in Victoria's Native Vegetation Management - a Framework for Action, which is referred to in Clauses 12.01-2 and 52.17[9].
It is proposed to remove a total of eight trees of conservation significance. These comprise of one large tree (high conservation significance); 6 medium trees (medium conservation significance) and 1 small tree (low conservation significance). Two existing trees are proposed to be retained within the car park. We note that the planning application was referred to the Department of Sustainability and Environment (DSE) for comment and no objection to the proposed tree removal was raised.
Given the urban zoning of the review site; its location within a developing growth area; the position of the trees in locations where they act as a significant constraint on the development of the land; the absence of an objection from the DSE; and the substantial tree planting proposed by this application we consider that the removal of trees, while regrettable, is supportable in this instance. Conditions of the permit will require the provision of offsets in accordance with the Native Vegetation Management Framework.

We accept the submissions that the hotel will be a car-based facility. This is not a location which is well served by public transport, nor does it lend itself to a high level of access using alternative transport modes. Growth area locations such as this are heavily car-dependent. For this reason, we are of the view that this is not an instance where significant concessions to the car parking provision should be made. This is particularly so given the very limited (if not non-existent) opportunities to park on-street due to the level difference with, and nature of, May Road, and the proposed single carriageway width of the connector road - at least in the interim until it is duplicated.
Both the Council and the Applicant called evidence from experienced traffic engineers. In assessing the car parking demands associated with the proposed use, Mr Robertson relied upon a car parking requirement equivalent to 0.5 per patron. This rate was derived from surveys of the Craigieburn Sporting Club and the Berwick Springs Hotel. During the surveys, patron numbers in each section of these facilities were counted at half hourly intervals, and the number of cars parked were also recorded.
Mr Hunt relied on data collected during surveys of the Caroline Springs Club. The surveys recorded the number of cars parked on that site, and in the adjacent service road, and related these to the floor area of the premises. This assessment arrived at a peak parking demand of 15.4 spaces per 100 square metres of floor area.
In giving his evidence, Mr Robertson stated that it is not appropriate, in his view, to utilise floor area as the basis for an empirical assessment of car parking demand because, unless the occupancy rate of the premises is known, it is not possible to determine whether the assessment represents the peak occupancy of the facility.
Mr Hunt did not agree with this approach. In his view, it is very difficult, if not impossible, to count the number of patrons on a premises at any one time. He suggested that such a methodology usually leads to an underestimate of the persons actually present, with the consequence being the calculation of a higher parking demand. While maintaining that a requirement based on floor area is the most appropriate means of calculating parking demand, he also referred to a rate based on patron numbers. This rate is 0.4 space per patron. Mr Hunt stated that this rate is derived from a combination of that for a function centre (0.3/0.35 per patron) and that for a bar/gaming venue (0.5/0.6/0.7 per patron). He advised that this rate is generally accepted in the industry and is consistent with that specified in the report of the Advisory Committee established to review Clause 52.06.
We have found Mr Robertson's evidence to be the more persuasive and prefer to adopt his recommendations regarding the rate of car parking. In doing so, we have been influenced by our conclusion that it is very important in this instance to "get the car parking right". While acknowledging that the Advisory Committee review is still in the consultation phase, we observe that there has been a move away from utilising floor area as a basis of determining car parking for an hotel. This provides some support for an approach that relies on patron numbers rather than floor area. We also think that there is some merit to Mr Robertson's suggestion that an assessment that relies solely on counting car spaces does not give any indication about the actual occupancy of the premises and may lead to an under-estimation of the likely demand.
While we acknowledge that there isn't a significant difference between the 0.4 per patron and 0.5 per patron rates of the two witnesses, we believe that a conservative approach is warranted in this instance. The car-based nature of the development, the relative absence of alternative transport options and the inability to park on-street (and the undesirability of this outcome) support a car parking provision that is towards the higher end. We are persuaded that Mr Robertson's methodology has provided a reasonable basis for us to adopt the 0.5 per patron rate.
With a maximum capacity of 650 persons, the proposal will generate a car parking demand for 325 spaces. As 270 car spaces are proposed to be provided on the land, this results in a shortfall of 55 spaces. There is a portion of the site in the north-east corner that is proposed to be left vacant. It is annotated as "Grassed Area (Future Development)". At the Tribunal's request, Mr Robertson estimated that this area could potentially accommodate 50 car spaces. In his view, if this were to occur, the shortfall of 5 car spaces is inconsequential.
We have decided that additional car parking should be provided on the land. To this end, we have included a condition that a further 50 car spaces be provided, and that these be located in the north-eastern corner of the property, in that area identified on the plans as being for 'future development'.
There was also disagreement between the experts in respect of the access arrangements into and out of the site, and of the need or otherwise for a deceleration lane adjacent to the site's boundary for use by west bound (left turning vehicles). Mr Robertson's evidence is that the eastern access point should be located further east and be 'left-turn out only'; the western access point should be multi-directional (allowing access into the site from both directions and both left and right turn exit); and that a left turn deceleration lane in association with the western access should be provided.
Mr Hunt has a different view. His evidence is that the forecast traffic volumes along the proposed connector road and the lack of co-incidence of the commuter peak and hotel operation peak mean that a taper, rather than a full deceleration land would be sufficient for vehicles turning left into the western access. He stated that a deceleration lane is not required for either of these peak periods. Mr Hunt suggested that an assessment of the necessary arrangements could be undertaken when the connector road is fully constructed.
It is evident to us that the proposed connector road will have an important role to play in the overall road network in this area. This is particularly so given it will ultimately provide access to and from the adjoining Officer Precinct. As noted earlier, it is identified in the Precinct Structure Plan as a Local Arterial Road[10] and will have a width of 33 metres. Given the strategic importance of this thoroughfare, we consider that good planning would see the provision of a deceleration lane as recommended by Mr Robertson. The desirability of providing this lane is supported by the anticipated popularity of this venue. It is likely to be attractive to a broad cross-section of the community and, we anticipate, it is likely to be a busy venue. Mr Robertson advised that the provision of the deceleration lane will require the relocation of the proposed eastern exit point further to the east. This would place it within the 'future development area' referred to earlier. Given our conclusion that this area should be developed for car parking, the relocation of the exit point can be achieved.

Will the use have an unacceptable impact on the amenity of the area?

The three key amenity impacts raised by those parties opposing the proposal relate to the visual impact of the retaining wall and car park on the future residential properties to the west; the acoustic impacts associated with the use; and the impacts arising from patron behaviour.
We have already commented on the proposed retaining wall. We consider that the provision of the 6.0 metre landscaped buffer will adequately protect future adjoining residents from any undesirable visual impacts arising from this structure. The provision of a fence along the western edge of the car park will assist in shielding residents from off-site impacts arising from the use of the car park, including headlight glare. Further screening will be provided by the landscaping within the car park.
It is also relevant to note that any purchasers of adjoining residential lots will be aware that an hotel development has been approved on the review site. They will therefore be in a position to make an informed decision as to whether they wish to reside next to such as use. Indeed, this may also have a bearing on the ultimate siting and design of dwellings on these adjacent lots as residents may elect to locate sensitive areas away from the common boundary with the hotel use.
An important consideration when assessing potential amenity impacts is that of noise. The Applicant called acoustic evidence from Ms Hui. She identified the three key noise sources as being plant equipment, music and patrons. We accept that plant and music noise can be adequately addressed with reference to State Environment Protection Policies N-1 (Noise from Commerce, Industry and Trade) and N-2 (Control of Music Noise from Public Premises). We acknowledge that SEPP N-1 does not apply to the review site as it is outside the Metropolitan Region. However, we accept that the methodology adopted by SEPP N-1 can be used to achieve acceptable outcomes.
The more problematic impact is that of patron noise arising from the use of outdoor areas. There are presently no legislative controls or guidelines against which to assess this impact. Ms Hui stated that Melbourne acoustic consultants have been involved in on-going discussions to determine the most appropriate noise criteria to use to assess this impact. The proposed criteria detailed in her evidence are based on the background noise level in the area and the NSW EPA sleep disturbance criteria. She states that the proposed criteria (for the quasi steady state component) is similar to that which would apply if the SEPP N-1 methodology were followed. The identified noise limits are 61dBA for the daytime period; 56dBA for the evening period and 41dBA for the night time period.
Applying this criteria to the proposed outdoor areas and having regard to the context of the review site, Ms Hui found that the daytime and evening limits will be achieved. However, the night time limit will be exceeded by 1dBA - 7dBA. The residential properties to the north will experience a noise level that exceeds the 41dBA limit by 6dBA. The future residential properties to the west are predicted to experience a noise level that exceeds the limit by 2dBA (at ground floor level) and 7dBA if the dwellings are two-storey and have habitable room windows overlooking the review site.
In response to these predictions, Ms Hui stated:

At existing dwellings to the north, the predicted noise levels are dominated by noise from the sports/lounge bar terrace. Managerial controls limiting the use of this terrace may be required during the night-time period. Possible managerial controls include restricting the number of patrons allowed within this area during the night period, only allowing smoking in this terrace areas in the night-time period (i.e. no alcohol consumption), closing off the north half of this terrace area or even closing to the entire terrace at night.

The estimated noise level at future dwellings to the west will be dependent on the design of these dwellings, whether they are two-storey and whether they have windows of habitable rooms facing the development. Again the recommended managerial controls for the sports/lounge bar terrace could be applied to the function room terrace areas to allow the nominated patron noise level to be achieved.

It is recommended that once the proposed development is operational further noise measurement should be undertaken to determine the actual level of patronage in the terrace areas and the resultant noise emissions and existing and future residential dwellings.

The results of measurement surveys will determine whether managerial controls are required.

It is also recommended that where possible, absorptive treatments be installed within all outdoor terrace areas. Specifications for such treatment will be determined in conjunction with the project architect but as a guide the selected absorptive material should cover at least 50% of the surface area of the space and have a minimum noise reduction coefficient (NRC) of 0.7.

Ms Hui expects the maximum patron and vehicle noise levels from the car park to comply with sleep disturbance criteria at both existing and future dwellings with no further treatment. She did, however, qualify this by stating that noise predictions may need to be revised if the proposed retaining wall design was changed significantly. Mr Hui also stated that, in the event that the dwellings to the west were not constructed at a level lower than that of the review site, a 1.8 -2.0 metre high acoustic fence may need to be provided at the western edge of the western car park to protect the dwellings from noise.
We were not provided with any evidence to contradict or challenge that of Ms Hui. We consider that, in the circumstances where there is no legislation or guideline against which to assess patron noise, Ms Hui's recommendations provided a reasonable means of dealing with this issue. While we are somewhat reluctant to defer final determination of the means of addressing this issue to a 'secondary consent' process by condition, we agree that the particular circumstances of this application justify this approach. A key consideration in this respect is the site's location within a developing area where much of the surrounding land is vacant, yet is likely to be developed for residential purposes. The manner in which this occurs will affect the degree to which the proposal complies with the noise limits specified by Ms Hui.
A suggested condition requires the submission of a Noise Management Plan, with a further assessment and update of this Plan being undertaken within 6 months of the use commencing. We will include this condition in our order. Given the developing nature of this locality, we think it prudent to include a provision that allows the Responsible authority to require updated Noise Management Plans when that part of the site directly opposite and that directly adjacent to the hotel property are developed and occupied. This will ensure that any necessary modifications to the operation of the use can be required to contain impacts to within reasonable limits.
We will also require the provision of a minimum 1.8 metre high acoustic fence at the western edge of the car park to provide further protection to future adjoining residents. This fence will be screened by the proposed landscaping, once established.
Clause 52.27 requires us to consider a number of decision guidelines when determining whether permission should be granted for the sale and consumption of liquor. These include:

The impact of the sale or consumption of liquor permitted by the liquor licence on the amenity of the surrounding area.

The impact of the hours of operation on the amenity of the surrounding area.

The impact of the number of patrons on the amenity of the surrounding area.

Firstly, it is important to note that this is not a 'vertical drinking venue' where the consumption of liquor is an integral component of the social experience. It is a multi-purpose facility (or entertainment complex) offering a range of facilities that will be attractive to a broad cross-section of the community. These include bistro and function areas that are likely to attract the patronage of families. This being the case, it is far less likely that the sale and consumption of liquor will result in off-site impacts that could be reasonably be compared to those of venues whose focus is on the serving of alcohol.
As we have stated earlier, the proposed 650 patron capacity establishes the development as a local facility. This limit on patron numbers will have the effect of tempering amenity impacts as it is directly related to the intensity of the proposed use. Also of relevance are the proposed hours of operation. Although the venue is proposed to operate until 3.00am, the Applicant indicated its willingness to accept a midnight and 1.00am closing time. We think this is appropriate having regard to the residential zoning and surrounding land use. This restriction will assist in limiting the impact of the use on the amenity of the area.
Patron behaviour is a further relevant consideration. We acknowledge that the consumption of liquor can, and does, give rise to forms of behaviour that adversely impact on the amenity of a locality. This is a possibility with any licensed venue. We believe that an appropriate management regime needs to be put in place to limit these impacts. To this end, we have included a condition that requires that preparation and implementation of a management plan. This plan will need to address such matters as staffing; compliance with relevant legislation in respect of the service of alcohol; employment of a manager who is to be responsible for ensuring that the conduct of patrons does not cause detriment to the amenity of the area; the maintenance of a complaints register; and liaison with the police.

We have given our reasons for the inclusion of a number of conditions, which were in dispute, in the context of our discussion about the merits of the proposals. At the conclusion of the hearing there was a discussion about conditions and a further opportunity was provided to the parties to discuss and seek to resolve any outstanding dispute about conditions. The conditions we have included in the permits reflect the conditions agreed to by the council and the applicant. Where a dispute exists, we have exercised our judgement. As indicated, we have made certain changes based on our reasons with respect to various aspects. The only other conditions we wish to comment on are as follows.
We are not persuaded to include a notation on the plan of subdivision to reflect the Public Acquisition Overlay proposed as part of Amendment C149 on Lot 2 of the subdivision. Any acquisition of this land will be part of a separate process. We also note the comment by the Growth Areas Authority that the alignment of this area has not yet been fully resolved. We consider that this condition is unnecessary and could be a complicating factor. We have therefore deleted it.
The applicant has advised that the hotel will provide $100,000 per annum in cash donations to local community groups, charities and sporting clubs in the event that the application is successful. We were told that:
- Donations will be held in a trust set up by the Daley family and shall be distributed on an annual basis.
- Priority will be given to junior sporting clubs that will assist in the development of the sporting ground located on the corner of Princes Highway and O'Neill Road.
- One quarter of the $100,000 or $25,000.00 will be made available for community education and awareness. This money will be made available to a responsible authority, such as the Shire of Cardinia or other recognised service support provider operating in the Shire. It is proposed that these funds would be distributed to gambling awareness programmes to be conducted in the local area and throughout the Shire targeted at different age groups such as mature aged, young adults and youth.
The applicant has said the donation should not be included as a condition in the permit, but it would be prepared to enter an appropriate section 173 agreement if the Tribunal so required. In Bright Newbay, the Tribunal said about such a condition:

[62] The Council suggested in its draft permit conditions that a section 173 agreement be required to effectively lock in the Community Contribution Fund of $50,000.00 per year. Mr Kane explained the idea for imposing this condition came from the Beretta decision where the applicant agreed to a similar condition. We would have concerns with such a condition on a planning permit since clause 52.28 focuses upon the appropriateness of the location of the gaming machines rather than specifically the social and economic impacts of the machines themselves.

The parties in Bright Newbay generally acknowledged that such a requirement may be better dealt with through the gaming approval, which the Tribunal in that case was also considering, as the Gambling Regulation Act 2003 provides the opportunity for the Commission to impose any condition it sees fit. However, having regard to comments made by Bell J in the Romsey[11] decision, the Tribunal decided not to include such a condition, but to note the undertaking that the venue operator gave to make an annual minimum $50,000.00 contribution to local community and sporting groups through a community fund to be established.
In the present case, the applicant has put forward its willingness to make this contribution as a positive benefit associated with the gaming machine proposal. Mr Hocking made the pertinent observation that from a community perspective it would be unfortunate if the applicant puts forward the prospect of a $100,000.00 per annum community contribution in support of its application and there is then no binding obligation to pay it.
The provision of a section 173 agreement was not opposed by the applicant. If it had been opposed, we do not consider there would be a sufficient nexus between the payment and the permission being granted under clause 52.28 to support such a condition. However, section 173 agreements, where there is a genuine agreement on the part of the permit applicant, enable things to be done, which may otherwise lie outside the normal ambit of conditions in a planning permit. Under section 174 of the Planning and Environment Act 1987, an agreement may provide for a very wide range of matters. A constraint is provided under section 180 that an agreement must not require or allow anything to be done which would breach a planning scheme or a permit. The proposed payment does not contravene this provision.
We have therefore concluded that because the applicant does not oppose the inclusion of a condition requiring a section 173 agreement, one should be included. Payment will provide benefit to the community in various ways.

For all the above reasons, we have concluded that the subdivision and the hotel proposal, including the installation and use of 60 gaming machines, will result in a net community benefit and will produce acceptable outcomes in terms of the decision guidelines within the planning scheme. The decision of the responsible authority on each of the relevant permit applications will be set aside and permits granted.

Development and use of an hotel;
Installation and use of sixty (60) gaming machines;
Use of the land for the sale and consumption of liquor (General Liquor Licence); and
Removal of native vegetation

Before the development starts, amended plans 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 be generally in accordance with the plans identified as 01 Proposed Site Plan/Floor Plan; PHB-1122-TP-02 Proposed Elevations; and PHB-1122-TP-03 Proposed Elevations & Section, all Revision A, prepared by T M Design Group (Aust) Pty Ltd, dated 17 June '11 but modified to show:

(a) A plan of the proposed vehicle access, circulation and car parking layout that is fully dimensioned.

(b) A pedestrian pathway connecting the premises to the proposed connector road.

(c) The floor plan amended to comply with the floor levels required by Melbourne Water (refer to Condition No. 51 of this Permit).

(d) The floor plan amended to detail the maximum patron numbers per room/area.

(e) Minimum 1.8 metre high glazed screens to the perimeter of all external areas/terraces.

(f) The provision of absorptive surfaces to all outdoor terraces.

(g) A minimum 1.8 metre high acoustic fence adjacent to the western edge of the car parking spaces in the western car park.

(h) The site plan amended to detail the location for the storage and collection of garbage and other solid waste;

(i) The provision of a minimum of 325 car spaces on the land. This must include the provision of car spaces on that part of the review site labelled as "Grassed Area (Future Development)";

(j) A left-hand turn deceleration lane in association with the western access into the car park, and a consequential relocation of the eastern car park access point to accommodate this lane.

(k) Separate left and right turn lanes within the site at the western car park access.

(l) The eastern car park access point to be left turn exit only.

(m) The provision of a minimum of 38 bicycle parking spaces.

(n) A comprehensive schedule of construction materials, external finishes and colours (including colour samples). All external cladding and trim of the building, including the roof, must be of a non-reflective nature.

Before the development starts, a landscape plan prepared by a person suitably qualified and experienced in landscape design 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 plan must be drawn to scale with dimensions and three copies must be provided. The plan must show:
- (a) A survey (including botanical names) of all existing vegetation to be retained and/or removed.
- (b) Buildings and trees (including botanical names) on neighbouring properties within three metres of the boundary.
- (c) Details of surface finishes of pathways, driveways and car parking spaces.
- (d) A planting schedule of all proposed trees, shrubs and ground covers, including botanical names, common names, pot sizes, sizes at maturity, and quantities of each plant.
- (e) Landscaping and planting within all open areas of the subject land.
- (f) Landscaping of the May Road nature strip.
- (g) Tree Protection Zones for all trees identified for retention.
- (h) Details of the proposed gabion retaining wall along the western edge of the western car park.

All species selected must be to the satisfaction of the Responsible Authority.

Before the development starts, an Access and Disability Audit Report for the development must be submitted to, and approved in writing by, the Responsible Authority. The Access and Disability Audit Report must be prepared by a suitably qualified person and must include details of pedestrian access to the site from the proposed east-west connector road.

All work must be in accordance with the approved report, to the satisfaction of the Responsible Authority.

The use and development as shown on the endorsed plan_/_s must not be altered without the written consent of the Responsible Authority.

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

Before the use starts, a Management Plan 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. All activities forming part of the use must comply with the approved Management Plan.

The plan must be consistent with the endorsed plans and must include, but is not limited to:

(a) Staffing and other measures which are designed to ensure the orderly arrival and departure of patrons.

(b) Signage to be used to encourage responsible off-site patron behaviour.

(c) The training of staff in the management of patron behaviour.

(d) Staff communication arrangements.

(e) Hours of operation for each area of the hotel.

(f) Patron numbers, and how this number of patrons will be controlled by staff.

(g) Measures to control noise emissions from the premises.

(h) Compliance with the Liquor Control Reform Act 1998, including confirmation that all persons engaged in the serving of liquor must undertake Responsible Service of Alcohol Training provided by, or approved by, Liquor Licensing Victoria within one (1) month of employment.

(i) The management and responsibility of crowd controllers including confirmation that security staff employed at the premises must have undertaken a recognised course in crowd control and be licensed under the Private Agents Act 1966.

(j) Liaison with the Victoria Police in relation to the operation of the premises, where required.

(k) The keeping of a complaints register and procedure for dealing with complaints.

(l) Confirmation that all persons engaged for employment in the gaming lounge must undertake Responsible Service of Gaming Training by, or approved by, the Victorian Commission for Gambling Regulation.

(m) The emergency procedures to apply to the premises in the case of an emergency.

(n) The employment of a manager 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. The manager must be authorised by the operator to make statements at any time on his/her behalf to any officer of the Responsible Authority, the Victoria Police and/or of Liquor Licensing Victoria authorised under section 129 of the Liquor Control Reform Act 1998 and/or to take action on his/her behalf in accordance with a direction by such officer.

(o) The installation and maintenance, during all hours of operation and for 30 minutes after the close of the premises each day, of an electronic surveillance system to monitor and record continuous images of all entrances and exits and bar areas. These records must be retained for a period of one (1) month and made available for viewing and/or removal at all times by an authorised police officer or authorised officer of the Council or an authorised officer of Liquor Licensing Victoria.

When approved, the plan must be implemented to the satisfaction of the Responsible Authority.

Before the use starts, a Noise Management Plan prepared by a suitably qualified acoustic consultant must be submitted to, and approved in writing by, the Responsible Authority. The Noise Management Plan must address but is not limited to:
- (a) the applicable SEPP N-2 music limits for the day, evening and night time period;
- (b) details of allowable internal and external music noise levels in each of the venue areas;
- (c) measures to meet the applicable music limits and allowable noise levels;
- (d) management of patron noise in accordance with the methodology and criteria as set out in the report prepared by Marshall Day Acoustics dated 15 July 2011. This may include restrictions on the times the outdoor areas may be used, the use of the outdoor areas and the number of patrons that may be present in each of the outdoor areas at any one time.

Any measures identified in the approved Noise Management Plan must be implemented within three months of the commencement of the use to the satisfaction of the Responsible Authority.

The approved Noise Management Plan must be complied with at all times to the satisfaction of the Responsible Authority.

Unless otherwise agreed to in writing by the Responsible Authority, updated Noise Management Plans prepared by suitably qualified acoustic consultant must submitted to the Responsible Authority, to its satisfaction, at the following times:

(e) within six (6) months of the commencement of the use;

(f) if the land directly opposite to the hotel (ie to the north, on the opposite side of the road) is developed and occupied later than 6 months of the commencement of the hotel use, then within 3 months of the occupation of that land;

(g) if the land that adjoins the hotel to the west is developed and occupied later than 6 months after the commencement of the hotel use, then within 3 months of the occupation of that land.

The updated Noise Management Plans must address but are not limited to:

(h) the applicable SEPP N-2 music limits for the day, evening and night time period;

(i) details of allowable internal and external music noise levels in each of the venue areas;

(j) measures to meet the applicable music limits and allowable noise levels;

(k) management of patron noise in accordance with the methodology and criteria as set out in the report prepared by Marshall Day Acoustics dated 15 July 2011. This may include restrictions on the times the outdoor areas may be used, the use of the outdoor areas and the number of patrons that may be present in each of the outdoor areas at any one time.

Any further measures identified in the approved updated Noise Management Plans must be implemented within three months of the date of approval of the updated Noise Management Plan, to the satisfaction of the Responsible Authority

The approved updated Noise Management Plans must be complied with at all times to the satisfaction of the Responsible Authority.

Before the use starts, an acoustic fence must be erected along the western edge of the western car park to a minimum height of 1.8 metres.

The design of the fence must be prepared in consultation with an acoustic engineer qualified to the satisfaction of the Responsible Authority.

Before the fence is constructed, details of the design and acoustic qualities of the fence must be submitted to, and approved in writing by, the Responsible Authority.

The use (excluding the use of the electronic gaming machines) must operate only between the hours of:
- Sunday to Thursday 8.00am to midnight
- Friday and Saturday 8.00am to 1.00am the following day

The electronic gaming machines must operate only between the hours of:
- Monday to Sunday 10.00am to 1.00am the following day

Deliveries to the land must only be undertaken during the following hours:
- Monday to Saturday 7.00am to 10.00pm
- Sundays and Public Holidays 9.00am to 10.00pm

Waste collection from the land must only be undertaken during the following hours:
- Monday to Saturday: 7.00am - 8.00pm
- Sundays and Public Holidays 9.00am to 8.00pm

Not more than 650 patrons may be present on the premises at any one time. The patron numbers on the external terraces must not exceed the following:
- (a) Sports bar/lounge bar terrace: 75 patrons
- (b) Bistro 1 al fresco dining: 113 patrons
- (c) Functions terrace: 93 patrons
- (d) Function Room 4 terrace: 42 patrons
- (e) Bistro 2 al fresco dining: 37 patrons
- (f) Gaming lounge terrace: 23 patrons

All mechanical services noise must comply with the limits established by using the methodology set under State Environmental Protection Policy (Control of Noise from Commerce, Industry and Trade) No. N-1.

Any music noise emissions must comply with the limits set under State Environmental Protection Policy (Control of Music Noise from Public Premises) No. N-2.

The use and development must not detrimentally affect the amenity of the area, through the:
- (a) transport of materials, goods or commodities to or from the land;
- (b) appearance of any building, works or materials;
- (c) emission of noise, artificial light, vibration, smell, fumes, smoke, vapour, steam, soot, ash, dust, waste water, waste products, grit or oil;
- (d) patron noise and vehicle movements;
- (e) presence of vermin

or in any other way, to the satisfaction of the Responsible Authority.

Before the development starts, a Traffic Management Plan (TMP) prepared by suitably qualified person must be submitted to, and approved in writing by, the Responsible Authority. The TMP must address, but is not limited to:
- (a) Directional arrangements for access to and from the connector road.
- (b) Any necessary measures to, accommodate any changes to the directional arrangements as a result of:
  - (i) access requirements during construction of roadworks; and

(ii) access requirements as a result of the final construction of the connector road to link it with the existing road network, including May Road.

The TMP must be complied with to the satisfaction of the Responsible Authority.

External lighting must be designed, baffled and located so as not to detrimentally affect the amenity of adjoining land to the satisfaction of the Responsible Authority.

Provision must be made on the site for the storage and collection of garbage and other solid waste. This area must be graded, drained and screened from public view to the satisfaction of the Responsible Authority.

No direct pedestrian or vehicular access must be provided to the site from May Road.

No plant, equipment, services or architectural features other than those shown on the endorsed plans are permitted above the roof level of the building/s without the written consent of the Responsible Authority.

The dimensions and layout of the proposed access, parking areas and loading bays must be in accordance with the requirements of Clauses 52.06 and 52.07 of the Cardinia Planning scheme.

Before the use starts, all areas set aside on the approved plans for access, circulation and car parking must be constructed with concrete, asphalt or other approved hard surfacing material, drained and delineated to the satisfaction of the Responsible Authority. Once constructed, these areas must be maintained to the satisfaction of the Responsible Authority.

Before the use starts, direction signs and direction pavement markings must be installed as shown on the approved plans. Once works are completed, the area must be maintained to the satisfaction of the Responsible Authority.

Before the use starts, commercial standard concrete vehicle crossings must be constructed in the locations shown on the approved plans to the approval and satisfaction of the Responsible Authority. All proposed crossings must have a minimum width of 6.0 metres.

Before any works start, the contractor and Responsible Authority representatives must carry out an existing condition inspection of roads and land near the subject land. Council roads must be maintained during the construction period in accordance with the agreed maintenance cycle and intervention levels. Any damage caused by these works to Council assets must be reinstated to the satisfaction of the Responsible Authority prior to the completion of works.

Stormwater must not be discharged from the subject land other than by means of an underground pipe drain discharging to an outlet in the street or to an underground pipe drain to the satisfaction of the Responsible Authority.

Before the development starts, a stormwater management plan showing the stormwater works to the nominated point of discharge must be prepared to the satisfaction and approval of the Responsible Authority. The stormwater management plan must be prepared by a suitably qualified person and show details of the proposed stormwater works including all existing and proposed features that may have impact (e.g. Trees to be retained, crossings, services, fences, abutting buildings, existing boundary levels etc). The stormwater works must incorporate the use of water sensitive design principles to improve stormwater runoff quality. All works must be undertaken in accordance with the approved stormwater management plan.

Earthworks must be undertaken in a manner that minimises soil erosion. Exposed areas of soil must be stabilised to prevent soil erosion. The time for which soil remains exposed and unestablished must be minimised to the satisfaction of the Responsible Authority.

The slope of batters, both cut and fill, must not exceed 2:1 (horizontal: vertical) or, where this is not practicable, batters must be stabilised by other means to the satisfaction of the Responsible Authority.

All roads used for the purpose of haulage of imported or exported materials for construction must be:

(a) approved in writing by the Responsible Authority for the submitted haulage strategy, at least seven days prior to the commencement of use;

(b) maintained in accordance with the Responsible Authority's maintenance intervention levels, or as requested by the Responsible Authority if the road deteriorates during the haulage period; and

(c) reinstated to the satisfaction of the Responsible Authority.

Before the development starts, the permit holder must design and construct road and drainage works, in accordance with plans and specifications approved by the Responsible Authority, that comply with the standards nominated in the Cardinia Shire Council "Guidelines for the Development & Subdivision of Land" and the "Development Construction Specification" that include:

(a) Earthworks in their entirety for the full 33 metre road reservation of the proposed east-west road bisecting the site to the satisfaction of the Responsible Authority;

(b) A fully constructed single lane road (one lane each way) within the road reserve of the proposed east-west road bisecting the site to the satisfaction of the Responsible Authority;

(c) Intersectional works to the satisfaction of the Responsible Authority at the intersections of the internal road with O'Neill Road.

Before the use starts, outfall drainage works must be designed and constructed to the approval of both the Responsible Authority and Melbourne Water.

At least 14 days before any works (including tree removal) start, a site specific Construction Environmental Management Plan (CEMP) to the satisfaction of the Responsible Authority must be submitted to, and approved by, the Responsible Authority. When approved the CEMP will be endorsed and will then form part of the permit. All works must be undertaken in accordance with the approved CEMP, to the satisfaction of the Responsible Authority.

The CEMP must address all environmental risks and must include, but is not limited to:

(a) Hours of construction, which must be restricted to 7am to 6pm Monday to Friday, and 8am to 1pm on Saturday.

(b) No access must be provided from May Road.

(c) Temporary stormwater management including sedimentation control.

(d) Provision of pollution and contamination controls including noise and dust.

(e) Location of stockpiles and stockpile management.

(f) Location of site office and facilities.

(g) Equipment, materials and goods management.

(h) Installation of temporary signage along May Road stating: 'This is a significant bushland reserve. No machinery, works, storage of material or rubbish dumping is permitted'. Signs must be no smaller than 600mm x 600mm, and must be placed along the reserve and site's boundary for every 50 metres.

(i) Installation of temporary fencing to protect all vegetation that is to be retained.

(j) The significance of roadside vegetation and vegetation to be retained on site.

(k) Actions in accordance with EPA Victorian Guidelines to manage erosion and sediment run off, vehicle access, disposal of surplus and unsuitable excavated material and control of noxious weeds.

(l) Method of communication to all contractors of the Construction Environmental Management Plan.

(m) All rubbish must be contained on the site. An appropriate sized container must be situated on the property to properly dispose of waste.

(n) Tree protection zones, trees to be retained and trees to be removed. All vegetation that is removed and disposed must not damage vegetation to be retained.

(o) Any other recommendations listed in Section 7.3 of the Brett Lane & Associates Report No 5162 (3.2), July 2011, that are not listed above.

Before any works start, an offset plan for the loss of vegetation must be submitted to and approved by the Responsible Authority. When approved, the plans will be endorsed and will form a part of the permit.

(a) means of calculating the offsets in accordance with the Port Phillip and Western Port Native Vegetation Plan; and

(b) type of offset works to standard Department of Sustainability and Environment (DSE) methodology (including location, action, quantities, timing of works, unit/resource allocation, details of who will be undertaking the works and standards to be achieved) must be provided for all tree offsets which must be implemented over a ten year period. Revegetation must be to the DSE standard methodology.

The required offsets must be provided in accordance with the approved offset plan to the satisfaction of the Responsible Authority.

Before any works start a Tree Management Plan that shows protection measures for all retained trees (including Tree Protection Zones) must be submitted to, and approved in writing by, the Responsible Authority.

Before the development (including tree removal) starts, a tree protection fence must be erected around the trees identified on the endorsed plans to define a "Tree Protection Zone" in accordance with the approved Tree Management Plan, to the satisfaction of the Responsible Authority. The fence must be constructed of star pickets and chain mesh or similar, to the satisfaction of the Responsible Authority. The tree protection fence must remain in place until construction is completed. The ground surface of the Tree Protection Zone must be covered by a 100mm deep layer of mulch and be watered regularly to the satisfaction of the Responsible Authority.

All offset and landscape works must have regard to the retention and improvement of the roadside vegetation strips that act as wildlife corridors.

The landscaping shown on the approved plan/s must be carried out within six (6) months of the commencement of the use (spring or autumn).

The landscaping shown on the endorsed plans must be maintained to the satisfaction of the Responsible Authority and used for no other purpose. Any dead, diseased or damaged plants must be replaced.

Before the landscape works commence, a bond to the satisfaction of the Responsible Authority must be provided for a twenty four (24) month maintenance period. During that time, the landscape must be kept to Council's 'Parkland' standard and rectification of all non-complying works must be undertaken during this time.

All vegetation removal works must be supervised by a person who is suitably qualified to the satisfaction of the Responsible Authority.

No vehicular or pedestrian access, trenching or soil excavation is to occur within the Tree Protection Zones without the written consent of the Responsible Authority. No storage or dumping of tools, equipment or waste must occur within the Tree Protection Zones.

Any pruning that is required to be done to the canopy of any tree to be retained must be done by a qualified arborist to Australian Standard - Pruning of Amenity Trees AS4373-2007. Any pruning of the root system of any tree to be retained must be done by hand by a qualified arborist.

The exterior colour and cladding of the development must not result in any adverse visual impact on the environment of the area and all external cladding and trim of the building, including the roof, must be of a non-reflective nature.

Before the installation and use of the gaming machines start, the owner must enter into an agreement with the Responsible Authority under section 173 of the Planning and Environment Act 1987, and make application to the Registrar of Title to have the agreement registered on Title to the land under section 181 of the Act, which provides for an annual payment of $100,000.00 per annum (indexed to CPI) in cash donations to local community groups, charities and sporting clubs, to the satisfaction of the responsible authority.

The owner must pay the reasonable costs of preparation, execution and registration of the agreement.

Melbourne Water Conditions (Conditions 47 - 52)

Pollution and sediment laden runoff must not be discharged directly or indirectly into Melbourne Water's drains or waterways.

Before a Certificate of Occupancy is issued, the owner must enter into, and comply with, an agreement with Melbourne Water for the acceptance of surface and stormwater from the subject land directly or indirectly into Melbourne Water's drainage systems and waterways, the provision of drainage works and other matters in accordance with the statutory powers of Melbourne Water.

Engineering plans of the development (in electronic format) must be forwarded to Melbourne Water for comment/approval.

Before a Certificate of Occupancy is issued, a detailed drainage and stormwater management strategy must be submitted to Melbourne Water, to its satisfaction.

Finished floor levels must be a minimum of 300mm above the applicable flood level associated with the existing Melbourne Water asset.

Before works start, a separate application, direct to Melbourne Water, must be made for any new or modified stormwater connection to Melbourne Water's drains or watercourses. Prior to accepting and application, evidence must be provided demonstrating that Council considers it is not feasible to connect to the local drainage system.

In accordance with Section 68 of the Planning and Environment Act 1987, this permit will expire if one of the following circumstances applies:

(a) The development does not start within two (2) years of the date of this permit;

(b) The development is not completed, or the use does not start, within four (4) years of the date of this permit.

In accordance with Section 69 of the Planning and Environment Act 1987, the Responsible Authority may extend the periods referred to if a request is made in writing before the permit expires, or within three (3) months afterwards.

A five lot subdivision of the land in accordance with the endorsed plans.

Before the Plan of Subdivision is certified, three (3) copies of plans must be submitted to and approved by the Responsible Authority. The plans must be generally in accordance with the identified as Indicative Site Masterplan - Interim Design and Indicative Site Masterplan - Eventual Design, both Ref: 0900064 Ver: 07a, prepared by Beveridge Williams and dated 24.05.2011 but modified to show:

(a) Drainage easements for all required drainage works located within private land for the benefit of Council.

(b) A landscape plan for all road reserves and the tree reserve along Princes Highway, prepared by a landscape architect or person approved by the Responsible Authority as having sufficient competence in that field showing species, locations, approximate height and spread of proposed planting and the retention of existing trees and shrubs;

(c) A drainage easement in the north-west corner of Lot 1 to connect from the drainage easement adjoining to the north to the 'existing community centre'.

(d) All details relating to the 'uses' must be removed from the plan of subdivision, including removing the colouring from the lots and the relevant elements of the legend;

(e) The southern most section of the 'Melbourne Water Reserve' through the tree reserve to be shown as both a 'Melbourne Water Reserve' and 'Tree Reserve';

The layout of the subdivision, as shown on the endorsed plan/s, must not be altered or modified without the written consent of the Responsible Authority.

The owner of the land must enter into agreements with the relevant authorities for the provision of water supply, drainage, sewerage facilities, electricity, gas and telecommunication services to each lot shown on the approved plan in accordance with the authority's requirements and relevant legislation at the time.

All existing and proposed easements and sites for existing or required utility services and roads on the land must be set aside in the plan of subdivision submitted for certification in favour of the relevant authority for which the easement or site is to be created.

The Plan of Subdivision submitted for certification under the Subdivision Act 1988 must be referred to the relevant authority in accordance with Section 8 of that Act.

No vehicular access to the any of the lots must be gained from May Road.

At least 14 days before any works start, a site specific Construction Environmental Management Plan (CEMP) to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved the CEMP will be endorsed and will then form part of the permit. All works must be undertaken in accordance with the approved CEMP.

The CEMP must address all environmental risks and must include, but is not limited to:

(a) Hours of construction, which must be restricted to 7am to 6pm Monday to Friday, and 8am to 1pm on Saturday.

(b) No access must be provided from May Road.

(c) Temporary stormwater management including sedimentation control.

(d) Provision of pollution and contamination controls including noise and dust.

(e) Location of stockpiles and stockpile management.

(f) Location of site office and facilities.

(g) Equipment, materials and goods management.

(h) Installation of temporary signage along each roadside stating, 'This is a significant bushland reserve. No machinery, works, storage of material or rubbish dumping is permitted'. Signs must be no smaller than 600mm x 600mm, and must be placed along the reserve and site's boundary for every 50 metres.

(i) Installation of temporary fencing to protect all vegetation that is to be retained.

(j) The significance of roadside vegetation and vegetation to be retained on site.

(k) Actions in accordance with EPA Victorian Guidelines to manage erosion and sediment run off, vehicle access, disposal of surplus and unsuitable excavated material and control of noxious weeds.

(l) Method of communication to all contractors of the Construction Environmental Management Plan.

(m) All rubbish must be contained on the site. An appropriate sized container must be situated on the property to properly dispose of waste.

(n) Tree protection zones to trees to be retained.

Where excavated/filling material for the development is to be carted off/into the site, the permit holder must obtain further written approval from the Responsible Authority, not less than seven days before the cartage works commence.

Before a Statement of Compliance is issued under the Subdivision Act 1988:
- (a) Outfall drainage for all lots to an approved point of discharge must be designed and constructed, in accordance with plans and specifications approved by, and to the satisfaction of, both the Responsible Authority and Melbourne Water.
- (b) Road and drainage works must be designed and constructed in accordance with plans and specifications approved by the Responsible Authority. The works must comply with the standards nominated in the Cardinia Shire Council "Guidelines for the Development & Subdivision of Land" and the "Development Construction Specification" that include:

(i) Earthworks in their entirety for the full 33 metre road reservation of the proposed east-west road bisecting the site from the O'Neill Road boundary to the May Road boundary to the satisfaction of the Responsible Authority;

(ii) A fully constructed single lane road (one lane each way) within the road reserve of the proposed east-west road bisecting the site from the O'Neill Road boundary to the May Road boundary to the satisfaction of the Responsible Authority;

(iii) Intersectional works to the satisfaction of the Responsible Authority at the intersections of the internal road with O'Neill Road;

(iv) A concrete footpath in O'Neill Road to complete the footpath link from the path outside the abutting Community Centre to the existing Old Princes Highway path. The footpath must be in accordance with plans and specifications approved by, and to the satisfaction of, the Responsible Authority; and

(v) A concrete footpath along Old Princes Highway from O'Neill Road to the traffic signals on the corner of Old Princes Highway and Princes Highway. The footpath must be in accordance with plans and specifications approved by, and to the satisfaction, of both the Responsible Authority and VicRoads.

(c) 'As constructed' digital stormwater drainage information for all constructed stormwater drainage in accordance with the current version of D-SPEC for all drainage which will be responsibility of the Cardinia Shire Council must be submitted to the Responsible Authority to its satisfaction. All graphical information must be provided in the datum of GDA94 and projection of MGA Zone 55. (Note: Refer to DSPEC website (www.dspec.com.au ) for minimum Council requirements).

(d) The reticulated sewerage system must be extended to all proposed lots to the satisfaction of the Responsible Authority.

(e) A cash contribution in lieu of the provision of an area or areas for public open space equivalent to eight (8) percent of the site value must be paid to the Responsible Authority.

(f) The road reserve of the single lane road and the tree reserve along the Princes Highway must be landscaped in accordance with the approved landscape plan to the satisfaction of the Responsible Authority.

Stormwater must only be discharged from the site by means of an underground pipe drain discharging to an outlet in the street or to an underground pipe drain.

All earthworks must be undertaken in a manner that minimises soil erosion, and any exposed areas of soil must be stabilised to prevent soil erosion to the satisfaction of the Responsible Authority.

Before a Statement of Compliance is issued under the Subdivision Act 1988, all landscaping shown on the approved plan/s must be completed to the satisfaction of the Responsible Authority. The landscaped areas must then be maintained to the satisfaction of the Responsible Authority.

Before the Plan of Subdivision is certified, the owner must enter into an agreement with the Responsible Authority under Section 173 of the Planning and Environment Act 1987, and make application to the Registrar of Titles to have the agreement registered on title to the land under Section 181 of the Act, which provides for the physical and community infrastructure outlined in the development plan overlay applying to the land, and to control the further subdivision and development of the larger lots shown on the development plan.

The owner must pay the reasonable costs of preparation, execution and registration of the agreement.

The owner of the subject land must enter into an agreement with South East Water for the provision of potable water supply and fulfil all requirements to its satisfaction.

The owner of the subject land must enter into an agreement with South East Water for the provision of sewerage and fulfil all requirements to its satisfaction.

Prior to certification, the Plan of Subdivision must be referred to South East Water, in accordance with Section 8 of the Subdivision Act 1988.

Before a Statement of Compliance is issued, the owner must: -
- Enter into an agreement with SPI Electricity Pty Ltd for supply of electricity to each lot on the endorsed plan.
- Enter into an agreement with SPI Electricity Pty Ltd for the rearrangement of the existing electricity supply system.
- Enter into an agreement with SPI Electricity Pty Ltd for rearrangement of the points of supply to any existing installations affected by any private electric power line which would cross a boundary created by the subdivision, or by such means as may be agreed by SPI Electricity Pty Ltd.

Water Supply Requirements
- (a) Operable below ground hydrants meeting the requirements of Australian Standard 3952 Water supply- Spring hydrant value for waterworks purposes, must be provided to the satisfaction of the CFA.
- (b) The fire hydrants must be installed to the satisfaction of CFA on the W.B.L Cnr of O'Neill Road and Proposed Road and E.B.L Cnr of May Road and Proposed Road as shown on Indicative Site Masterplan - option 3, and must be no more than 120m apart.
- (c) Three copies of water reticulation drawings must be provided to CFA for approval.
- (d) Fire hydrants must be clearly identified as specified in the Fire Services Guideline 'Identification of Street Hydrants for Firefighting Purposes'.

Access Requirements
- (a) Emergency vehicle access must be provided to each of the allotments meeting the design requirements of the October 2006 version of the CFA guideline 'Requirements for Water Supplies and Access, for Subdivisions in Residential 1 and 2 and Township Zones'; and
- (b) The amount and location of parking facilities should not impede access of emergency vehicles (off-street parking is therefore encouraged where possible).

Protective Features
- (a) Areas of public open space or common property must be managed to a minimum fuel condition during a declared Fire Danger Period.

The 10 metre easement at each end of the proposed road reserve must be transferred to Melbourne Water as a Reserve.

The proposed asphalt roadwork over the Melbourne Water main must be designed to ensure there are no point loads on the main with a minimum cover of 1.2 metres to the final road surface level and a maximum cover of 3.0 metres to the top of the Melbourne Water main.

Vehicle access along or across the pipe reserve for the delivery of construction materials and the storage of plant, equipment or materials on the reserve is not permitted unless approved by Melbourne water.

Prior to undertaking any works on or near a Melbourne water asset, any contractor must request detailed terms and conditions from Melbourne water for works, and appropriate permits, fees and bonds will be applicable.

DSL Securities v Cardinia SC [2011] VCAT 1842

At a glance

Court

Decision date

Source

Judgment (224 paragraphs)

DSL Securities v Cardinia SC [2011] VCAT 1842 (19 September 2011)

Parties

Legislation Cited (2)