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[2006] VCAT 195
General information, not legal advice.
Victorian Civil and Administrative Tribunal
2006-02-08
Original judgment source is linked above.
A. The decision of the Responsible Authority is set aside, and a permit is granted for development of seven (7) Warehouses and use of eight (8) Warehouses and a reduction in car parking at 250-266 Whitehall Street, Yarraville, subject to the following conditions:
1 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 amended plans substituted in the application by the Tribunal, namely Sheets A03 and A04, both Revision G dated 22/12/05, A05 Revision C dated 11/10/05 and A06 Revision E dated 22/12/05, but modified to show:
a
Location of the Telstra mobile phone mast and equipment cabin;
b
Location of the external lighting above the roller door access to each warehouse;
c
Location of the waste bin areas at the rear of, or within, each warehouse.
d
Deletion of the chain wire fencing around the entire perimeter of the site.
e
A redesign of the western walls on the Hyde Street elevation to include design elements such as expressed grooves to panels, fins and fixed glazed windows.
f
The mid walls between the roller doors on the Leek Street façade with design treatments as in Condition 1 (e).
g
Raised roller shutter panels on the west elevation to add visual interest to the façade and to reflect the hierarchy of wall treatments on the elevation.
h
Details of lighting of the car park.
i
Annotated elevations detailing materials, finishes and colours accompanied by an adequate materials board and schedule to the satisfaction of the Responsible Authority.
j
The provision of an external refuse and recycling material storage area for each warehouse occupancy. The waste storage area must be designed so that it is screened from public view.
k
Waste collection points.
l
Provision of 8 bicycle parking spaces.
m
The general location of proposed signage.
n
An amended detailed landscape and paving plan, drawn by a qualified Landscape Architect, including use of semi-mature and drought tolerant species of trees and shrubs, showing existing trees to be retained, and providing for the following:
i Areas for planting along the building line at the Hyde Street frontage.
ii Provision of additional trees in the car parking area on Leek Street without reducing car spaces by the use of triangular shaped extensions into the parking bays.
iii
The location of all proposed trees to be clearly identified on the plan.
o
A schedule of revised floor areas.
p
The setback of Lots 7 and 8 from Whitehall Street in accordance with the alignment of the eastern boundary of the land marked "Road".
2 The development as shown on the endorsed plans must not be altered except with the written consent of the Responsible Authority.
3 The buildings must not be occupied until the landscaping and accessways have been completed to the satisfaction of the responsible authority and in accordance with the endorsed plans, and must be maintained thereafter to the satisfaction of the responsible authority.
4 The use may operate only between the hours of:
5 Except with the written consent of the Responsible Authority, the warehouses hereby permitted must not be used to store dangerous goods for which a licence is required under the Dangerous Goods Act 1985.
6 Trucks exceeding 12.5m in length must not be used in connection with any of the lots.
7 Prior to the commencement of the development a waste storage and collection management, recycling plan for the warehouses must be prepared to the satisfaction of the Responsible Authority.
8 All waste material not required for further on-site processing must be regularly removed from the site, and all vehicles removing waste must have fully secured and contained loads so that no wastes are spilled or dust or odour is created, all to the satisfaction of the Responsible Authority.
9 Before the use starts, a signage theme plan showing the standardised location, dimensions, colour scheme and lettering style of the signs for each premises, must be prepared to the satisfaction of the Responsible Authority and submitted to the satisfaction to the Responsible Authority for approval. This plan must be attached to each contract of sale or lease for the individual premises shown on the endorsed layout plan and each contract must contain a statement that no further external signage is to be erected or displayed beyond that indicated on the approved signage theme plan and that separate planning approval for each sign may be required from the Responsible Authority.
10 Despite what is permitted by the Permit as a warehouse use, a part of the land must not be put to a warehouse or activity of a type appearing in Clause 52.10 (Uses with Adverse Amenity Potential) of the Maribyrnong Planning Scheme, unless at the relevant time, the part of the Land being put to that use:
a
is the subject of a planning permit (other than the Permit) specifically allowing that use; or
b
has a separation distance which complies with the relevant distance referred to in Clause 52.10 and an assessment of risk to the safety of people located off the land may be required.
11 Equipment, containers, goods, waste bins or machinery, whether used in the process of warehousing carried out on the site or not, must not be stored or allowed to remain on any part of the land outside of the buildings on the site.
12 Noise levels emanating from the premises must not exceed those required to be met under State Environment Protection Policy (Control of Noise from Commerce, Industry and Trade), No. N-1, to the satisfaction of the Responsible Authority.
13 All security alarms or similar devices installed on the land must be of a silent type in accordance with any current standard published by Standards Australia International Limited and be connected to a security service, to the satisfaction of the Responsible Authority.
14 Except with the written consent of the responsible authority no form of public address system or sound amplification equipment may be used on the premises so as to be audible outside the premises.
15 Associated mechanical plant or equipment (air conditioning etc.) must not be visible from the street and must not cause detriment to or prejudicially affect adjoining properties by reason of the emission of noise or smoke and must conform to standards contained in the appropriate State Environment Protection policy or policies, to the satisfaction of the Responsible Authority.
16 Nothing in the permit hereby issued shall be construed to allow the removal of, damage to or pruning of any street tree without the further written consent of the Responsible Authority, the Council Parks and Gardens Section must be contacted to arrange for removal of any street trees prior to the commencement of the development, and a fee determined by the Council Parks and Gardens Section must be paid to the Responsible Authority for removal of any existing street trees.
17 The landscaping shown on the endorsed plans must be maintained, and any dead, diseased or damaged plants must be replaced, all to the satisfaction of the Responsible Authority.
18 Exterior lighting must be provided with suitable baffles and/or located so as to minimise the emission of light outside the site, to the satisfaction of the Responsible Authority.
19 The amenity of the area must, to the satisfaction of the Responsible Authority, not be detrimentally affected by the use or development 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
Presence of vermin.
20 Before the use commences the areas set aside for the parking of vehicles, together with the associated access ways/driveways as delineated on the endorsed plans must, to the satisfaction of the Responsible Authority, be:
a
provided and completed to the satisfaction of the Responsible Authority prior to the commencement of the use hereby permitted;
b
maintained to the satisfaction of the Responsible Authority;
c
made available for such use at all times and not used for any other purpose;
d
properly formed to such levels that it can be used in accordance with the endorsed plan;
e
drained and sealed with an all weather seal coat to the satisfaction of the Responsible Authority;
f
marked so that the boundaries of all vehicle spaces are clearly indicated on the ground in conformity with the endorsed plan.
21 The loading and unloading of goods from vehicles must only be carried out on the land within the designated loading bays and must not disrupt the circulation and parking of vehicles on the land. Semi trailers or trucks must not load or unload in the street.
22 All vehicle movements to and from the lots must be undertaken in a forward direction.
23 The owner must be responsible for any damage to Council assets, including street trees, as a result of the development, and reinstatement of any damaged asset to Council satisfaction will be required.
24 The site must be drained to the satisfaction of the Responsible Authority.
25 All pipes, fixtures, fittings and vents servicing any building on the site must be concealed in service ducts or otherwise hidden from view to the satisfaction of the Responsible Authority.
26 Plant, equipment, services or architectural features, other than those shown on the endorsed plans, must not be located above the roof level of the buildings without the written consent of the Responsible Authority.
27 Before the development starts drainage plans and specifications to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved the plans will be endorsed and will then form part of the permit. The plans must be drawn to scale with dimensions and three copies must be provided. The plans must show:
a
drainage of the site;
b
the rate of volume of water discharging from the site limited to the figure nominated by the Responsible Authority, with onsite retention;
c
stormwater runoff not causing any adverse impact to the public, any adjoining land or Council assets;
d
stormwater from all paved areas drained to an underground stormwater system;
e
any cut, fill or structure not adversely affecting the natural stormwater runoff from and to adjoining properties.
28 Before the development starts a Storm Water Discharge Permit must be obtained from the Council.
29 Polluted and/or sediment laden runoff must not be discharged directly or indirectly into Council's drains or watercourses during and after development.
30 The permit holder must provide for the entire frontage and sideage of the subject land and at its own expense provide civil infrastructure works & construction plans to Council's Infrastructure Services branch satisfaction. The civil infrastructure works must include but not be limited to the construction of drainage, footpath, kerb & channel, vehicle crossings, road pavement.
31 All vehicle crossings must be located, designed and constructed to the satisfaction of the Responsible Authority. A Vehicle Crossing Permit must be obtained from the Council Infrastructure Planning & Construction Branch for any new crossing prior to the commencement of works. Vehicle crossings must be constructed in accordance with the Council Standard Drawings, Specification and Vehicle Crossing Policy, to the satisfaction of the Responsible Authority.
32 All disused or redundant crossings must be removed and the area reinstated to footpath, nature strip and kerb and channel, all to the satisfaction of the Responsible Authority.
33 This permit will expire if one of the following circumstances applies:
a
The development is not started within two (2) years of the date of this permit;
b
The development is not completed within four (4) years of the date of this permit.
c
The use is not started within two (2) years after the completion of development.
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.
The Responsible Authority is directed to issue a permit in accordance with this Order, pursuant to Section 85(1)(b) of the Planning and Environment Act 1987.
Ms J Forsyth of Counsel by direct brief. Ms Forsyth called the following expert witnesses:
•
Mr C Butler, a consultant traffic engineer, and
1 This is an application under s 79 of the Planning and Environment Act 1987 ("the Act') brought by the Permit Applicant for review of the failure of the Maribyrnong City Council ("the Responsible Authority") to grant a permit within the prescribed time.
2 Fulcrum Town Planners Pty Ltd, for the Applicant for Review/Permit Applicant filed revised plans under cover of a letter dated 4 November 2005. The letter advised in part:
•
A reduction in the area of land for the proposed use and development. The application is made in respect of that part of the land incorporating Lots 1-8 (shown shaded on the 'Overall Site Plan').
•
A reduction in the number of new warehouses from 17 units to 7 units, which will be located in the north west corner of the site;
•
There will be no access to the warehouses from Earsdon Street;
•
Minor amendments have been made to the ingress/egress from Hyde Street in accordance with the suggested permit conditions in the council officer's report dated 19th July 2005. This will facilitate access for trucks of up to 12.5 metres in length. The northern crossover will comprise the entry point with the southern crossover providing the exit. The parking requirement for the amended development is 62 spaces whereas 79 spaces are to be provided; and
•
Location of waste storage areas; provision of a loading bay for Lot 8; and deletion of the chain wire fence along the site boundary (all in accordance with the suggested permit conditions in the council officer's report dated 19th July 2005).
3 Ms Forsyth requested that the permit application be amended by substitution of the revised plans. There being no objection I amended the permit application, pursuant to Clause 64(2) of Schedule 1 to the Victorian Civil and Administrative Tribunal Act 1998.
4 The proposal, as set out in the revised plans, is to construct seven attached warehouses and use an additional building as a warehouse (a total of 8 warehouses), together with ancillary offices and associated car parking. The proposed buildings would be oriented to address Hyde Street and Leek Street and would have a maximum height of 9.1m to the top of the parapet wall. The existing building and the attached canopy in the southwest part of the site, Lot 8, is proposed to be retained and used as a warehouse. Ancillary or office accommodation is proposed within each warehouse in the form of a part mezzanine floor.
5 Provision is proposed for car parking within the front setbacks of the buildings to Hyde Street and Leek Street. There would be a total of 79 onsite car parking spaces, and loading/unloading bays would be provided internally within each warehouse building.
6 The plans indicate landscaping along the frontages to Hyde Street and Leek Street, but no landscaping areas are shown along Earsdon Street or Whitehall Street. Individual and shared crossovers would provide vehicular access from Hyde Street and Link Street.
7 The subject land is on the west side of Whitehall Street and is bounded by Leek Street, Hyde Street and Earsdon Street. It is generally rectangular in shape with the exception of an area in the southwest corner which contains a separate development. The subject land has a frontage to Whitehall Street of 106m, a frontage to Hyde Street of 75.75m, a south side street boundary to Earsdon Street of 145.4m and a north side street boundary to Leek Street of 202m. The area of the subject land is 19645m2.
8 The subject land is currently developed in part with warehouse buildings associated with the use of the site as a transport, storage and distribution centre operated by E. Murphy & Sons Pty Ltd. There are several galvanised iron buildings on the subject land, part of which is also used for storage of shipping containers and the delivering of haulage vehicles.
9 Planning Permit TP 05/0186 was issued on 4 July 2005 for use of the northeast corner of the subject land for motor repairs.
10 The subject land has access via two crossovers from Whitehall Street, two crossovers from Earsdon Street and two crossovers from Leek Street.
11 The subject land forms part of an industrial buffer between the heavy industrial use and Coode Island to the east and residential uses to the west of Hyde Street.
12 The surrounding area is characterised by industrial uses to the east and north of the subject land and residential uses to the west and the south.
13 There are single storey residential properties on the majority of the south side of Earsdon Street, and Aston Street which runs off Earsdon Street to the south has a number of dwellings, and these residential properties are in an Industrial 3 Zone.
14 There is a group of recently constructed warehouse units at the east end of Earsdon Street fronting Whitehall Street.
15 Land to the west of the subject land on the opposite side of Hyde Street is used predominantly for residential purposes, although there is a hotel on the northwest corner of Hyde Street and Schild Street.
16 The subject land is covered by the Maribyrnong Planning Scheme and is in an Industrial 3 Zone which is the subject to Clause 33.03. A permit is required for use of land as a warehouse pursuant to Clause 33.03-4. A permit is required for buildings and works in an Industrial 3 Zone.
17 The subject land is affected by a Development Contributions Plan Overlay DCPO6, pursuant to Clause 45.06. The Overlay is not applicable to the proposal as it applies to residential development.
18 The table at Clause 52.06-5 sets out a requirement of 1.5 car spaces per 100m2 of net floor area for warehouses.
19 Clause 52.07 provides that a loading bay must have a minimum length of 7.6m, a minimum width of 3.6m and a height clearance of 4m, and a minimum area of 27.4m2.
20 Clause 52.10 sets out minimum threshold distances for types of industry and warehouse uses which may cause offence or unacceptable risk to the neighbourhood.
21 Reference was made to the following planning policies:
• Clause 11.03 Principles of Land Use and Development Planning.
• Clause 12 Metropolitan Development (Metropolitan Strategy Melbourne 2030).
• Clause 14.02 Metropolitan Development
• Clause 17.03 Industry
• Clause 18.02 Car Parking and Public Transport Access to Development.
• Clause 19.03 Design and built form.
• The Municipal Strategic Statement
• Clause 22.07 - 2 Industrial 3 Zone Land Use and Development Policy - Industrial Buffer Areas.
• City of Maribyrnong Industrial Development Policy.
• City of Maribyrnong Industrial Development Guidelines (draft).
Grounds of which application would have been refused
Notwithstanding the officer's recommendation, the Council resolved not to support the development of 17 new warehouses and the retention of the existing building for a total of 18 warehouses on the subject site for the following reasons:
1. The proposed development will cause an unreasonable increase in traffic along Earsdon Street affecting the amenity of existing residents.
2. The proposal dose not comply with the intent of Clauses 22.07 and 52.06 regarding safe vehicle access.
3. The proposal does not comply with clauses 22.07 and 52.07 regarding loading and unloading of vehicles.
23 I have carried out an inspection since the hearing to help me to come to a decision in this matter.
24 Mr Song submitted:
On 16 December 2005, the Council advised all parties, as stated in its earlier letter of 17 October 2005, that it was generally supportive of the amended plans, however that the removal of the warehouses fronting Earsdon Street had raised other important issues regarding the existing use of the site as a transport depot on the balance of the site. In particular, the issues which Council sought further clarification in its letters dated 17 October 2005 and 16 December 2005, are as follows:
a) Details of the use of the balance of the subject site (the southern portion of the site).
b) Council records show that a planning permit TP78/112 was issued by the then Tribunal on 27 April 1979 for the use of a transport depot subject to conditions. If it is proposed to retain the use as a transport depot, how will the operation be modified to suit the reduced site area for the transport depot? In particular, how will the vehicular access arrangements to the transport depot and the parking layout be amended? Will the conditions of the permit TP78/112 continue to be met? It would appear that given that the transport depot is on a reduced area from what was originally approved, a fresh application for the transport depot may be required.
c) The amended plans for Lot 8 show a canopy overhanging the accessway. What is the height of the canopy above floor level? Are there any supporting posts which will impede vehicular access?
d) Widths of the landscape buffer strips along the street frontages should be dimensioned on the plan.
In summary, the Responsible Authority is of the view that the amended plans have addressed the three grounds of refusal which the Council would have relied upon had it been able to determine the application. Specifically, the Council is satisfied that the amended proposal which removes warehouses fronting Earsdon Street will ensure an appropriate level of amenity in relation to traffic matters for existing residents and that the amended proposal is satisfactory having regard to Clause 22.07 (Industrial Buffers Areas) and Clauses 52.06 and 52.05 in relation to safe vehicle access and loading and unloading of vehicles. However, the Council is not satisfied that the applicant has adequately addressed the impacts that the existing use of the site as a transport depot may have on the operational characteristics of the site and potential impacts upon existing residents in Earsdon Street. These matters are dealt with in detail later in this submission.
25 Mr Song said that those comments also related to the dwellings in Hyde Street which are in a Residential 1 Zone. Mr Song further submitted:
The Responsible Authority submits that the key issues with respect to this Application for Review relate to:
•
Whether the amended proposal addresses the Council's issues contained within the three grounds of refusal which would have been issued had the Council determined the application.
•
The use of the balance of the subject site for a transport depot and whether the existing use rights can be sufficiently maintained given the reduced site area and the changes to the approved vehicle access arrangements.
•
Impacts that the modified transport depot may have on the residential amenity of the Earsdon Street residents.
It is the view of the Responsible Authority that the amended proposal adequately responds to the issues contained within the three grounds of refusal that the Council resolved to determine based on the original application. The amended proposal, which includes a substantial reduction in the number of warehouses on the site (from 18 to 8) and the removal of proposed vehicular access to Earsdon Street, would address the first ground of refusal.
The second and third grounds of refusal which relate to safe vehicle access and the loading/unloading of vehicles in accordance with Clauses 22.07, 52.06 and 52.07 have also been appropriately addressed in the amended plans. The Council's Traffic Engineers have reviewed the amended proposal including the vehicle access, car parking and loading facilities and have advised that the amended plans are generally acceptable.
The Council has formed the view that the amended proposal for seven new warehouses and the use of an existing building for an eighth warehouse which are to be located in the north west portion of the subject site is an acceptable planning outcome for the site, which can be appropriately managed through conditions of approval.
The Council's key concerns relate to the broader use of the subject site as a transport depot and the operational characteristics and functioning of the site. It is clear that the redevelopment of the subject site for eight warehouses will affect the way in which the transport depot currently operates particularly with respect to vehicle access arrangements, the loading/unloading and vehicles and maintenance/repairs of vehicles. It is questionable as to whether the site can maintain its existing use rights as a transport depot given that substantial portion of the site area will be reduced, with changes to accessways and loading and maintenance facilities and with added reliance upon the crossovers to Whitehall Street.
In view of the prospect that the former site of the transport depot is now proposed to be split into three sites, it is recommended that a co-ordinated approach be undertaken for the use and development of the land. The Council would welcome the preparation of a co-ordinated development/master plan to enable a better understanding of the intended uses and operations which are to occur on the site.
Although it is acknowledged that the site is suitably zoned for new industrial development, the amended proposal represents a simplistic solution to the overall use of the subject land. Rather than relying upon existing use rights, if the owner/applicant seeks to operate a transport depot from the balance of the subject site, then a fresh application for planning permit should be lodged with the Council. This would enable Council officers to undertake an assessment of the impacts of such a use upon nearby residential properties.
26 Ms Lamperd, one of the Respondent/Objectors, submitted that there was a lack of consideration with respect to residents on the west side of Hyde Street. Ms Lamperd was concerned about vehicular access and affect on a pedestrian crossing. She submitted that there is now noise 24 hours a day from the subject land. She also expressed concern about impact on
on-street parking.
27 Mr Lamperd expressed concern about landscaping, truck parking on-street and safety at the intersection.
28 Ms Hassan expressed concern about impacts of trucks in Earsdon Street.
29 Ms Forsyth called Mr C. Butler, a Consultant Traffic Engineer, as an expert witness. Mr Butler assessed the car parking requirement, based on amended floor areas. It was his evidence that a provision of 1.3 car spaces per 100m2 of net floor area would be appropriate, whilst the planning scheme sets out a requirement of 1.5 car spaces to each 100m2 of net floor area.
30 Mr Butler provided a table setting out revised floor areas, car parking requirements at rates of 1.3 and 1.5, and the proposed allocation. The table indicated that there would be an allocation of 79 car spaces, compared to a requirement at a rate of 1.3 of 57 car spaces and a requirement at a rate of 1.5 of 65 car spaces. Each of the warehouses would have an allocation in excess of 1.5 car spaces except for Warehouse 1. Warehouse 1 would have 469m2 of net floor area which would indicate a requirement of six car spaces at rate of 1.3, seven car spaces at a rate of 1.5, and it was proposed to have an allocation of five car spaces.
31 It was the evidence of Mr Butler that the overall provision was appropriate and I accept that evidence.
32 It was also the evidence of Mr Butler that the anticipated traffic would distribute to the surrounding road network with no significant impact on traffic conditions, and I also accept that evidence.
33 Ms Forsyth called Mr S. McGurn, a Consultant Planner, as an expert witness. It was the evidence of Mr McGurn that the proposal satisfies State and Local Planning Policy and complies with the design principles set out in Clause 19.03, Design and Built Form. It was the evidence of Mr McGurn that it would represent the redevelopment of an under used light industrial site and contribute to the local economy and improve the appearance of the subject land, it complies with the Maribyrnong Industrial Development Policy and the Maribyrnong Industrial Development Guidelines, and it would not cause unreasonable amenity impact on neighbouring residential properties.
34 The proposed development for warehouses is consistent with the objectives of the Industrial 3 Zone which encourage industrial use that do not affect the safety and amenity of adjacent and more sensitive land uses. It would make more efficient use of the subject land and available infrastructure and would provide for a good urban design outcome. The proposal is consistent with Clause 21.04-5 which seeks to locate this type of development in industrial buffer areas pursuant to the Industrial Development and Mixed Use Framework Plan. Landscaping which has been incorporated into frontages will soften the appearance of the warehouse units and associated car parking.
35 I consider that the scale and form is appropriate for the location and the proposed buildings are oriented towards street frontages and are of a height and scale similar to existing buildings on the subject land. Setbacks would ensure that adequate car parking can be provided and also facilitate an appropriate separation between neighbouring properties.
36 The proposed site layout, landscaping and access arrangements would all help to minimise potential amenity impact on adjoining residential properties. The proposed warehouses facing Hyde Street have good setbacks and this helps to distance them from the dwellings on the west of Hyde Street.
37 The Responsible Authority raised the issue of the future operation of the transport depot in the event that a permit was granted and acted on.
38 A similar issue was considered in Bretherton v Moonee Valley CC [2000] VCAT 1151 (31 May 2000). A Chemist and Carpark was constructed at 67-69 Union Road, Ascot Vale pursuant to Permit No. ES 4623, which was issued by the City of Essendon on 31 August 1987. It was proposed to construct a Medical Centre with associated car parking at 71 Union Road, and it was proposed that the car parking for the medical centre extend over the land at 67-69 Union Road, and as a result the layout of the carpark at 67-69 Union Road would need to be reconfigured. Mrs Bruce said in her reasons:
78. The mere issue of permits for medical centre use in the terms proposed, however, would not affect the continuance of the pharmacy under its existing permit. Something more is required to bring the permits into conflict. It is reliance on a new permit that causes the situation to change as regards an existing permit. As all parties agreed, inconsistent permits cannot be relied on simultaneously. What follows from that, however, in my view is the result contended for by Mr Testro and Mr Stewart. The consequence is not amendment of the pharmacy permit by a later permit affecting part of the site to which it relates.
39 I consider that the comments of Mrs Bruce apply equally here.
40 The proposed development would have no impact on the residents of Earsdon Street, as it would not abut Earsdon Street. Likewise there would be no change in traffic movement from the subject land to Whitehall Street as there is no abuttal to Whitehall Street.
41 It was suggested that a permit condition should prohibit the use of trucks in association with the warehouses of a length greater than 12.5m. Mr Butler, the witness called by Ms Forsyth, considered that this would be appropriate but Ms Forsyth considered it would be unnecessary. I consider that this would be a reasonable condition.
42 The Responsible Authority suggested a condition requiring that the use only operate between 7.00am and 6.00pm Monday to Friday and 7.00am to 12.00 noon Saturday. Ms Forsyth said that she had no instructions but submitted that prescription of hours should be unnecessary but if I was minded to set down certain hours they should be:
6.00am to 6.00pm Monday to Friday and
8.00am to 5.00pm Saturday.
43 Mr McGurn, by letter dated 12 January 2006, copies of which were provided to the other parties, submitted that the Applicant for Review/Permit Applicant remained opposed to a restriction of hours of operation, but submitted that if there was to be such restriction it should be confined to Lots 5-8 only (the warehouses facing Hyde Street), and that the times be:
44 I consider that some restriction of hours for the warehouses facing Hyde Street, opposite dwellings, is necessary. I consider that the hours suggested by the Responsible Authority for Monday to Friday, ie 7.00am to 6.00pm, would be appropriate and that 8.00am to 5.00pm on Saturday would also be appropriate.
45 I was asked to reserve costs and I will so order.
46 For the above reasons this application is allowed subject to conditions. It is appropriate for a permit to be granted, and I will so order.
Erny Pty Ltd
Maribyrnong CC [2006] VCAT 195