[25] In an application where there are multiple permit triggers for a proposal overall, but the permission under review pursuant to the Planning Act and the VCAT Act is limited by operation of the exemptions applying to the review, the ambit of the Tribunal's review enquiry will be restricted to the non‑exempt provisions.

[168] In my view, the Tribunal does not have the dispositive power to direct a permit on all permit triggers where it otherwise has no jurisdiction to consider certain exempt permit triggers due to the nature of the review right being exercised by a third party.

1. The above makes clear that the only permit trigger before the Tribunal relates to the proposed use of the land. There is no jurisdiction for the Tribunal to review and therefore deal with other aspects of the responsible authority's decision.
2. It would be fair to say that although they reached agreement, the parties struggled with the concept that Tribunal's orders could only deal with land use and not the other aspects of the permit application. This was particularly so with the untangling of the permit conditions which, in some instances, related to both use and development.
3. At the compulsory conference, the parties reached agreement and request orders by consent granting permission for the proposed uses subject to agreed conditions. The parties agree that the conditions included in the order must relate to the use of the land only and cannot include those which relate to development. This is a pragmatic outcome.
4. This order is therefore made with the consent of the parties as an outcome of the compulsory conference. The Tribunal regards the consent of the responsible authority to be a confirmation to the Tribunal that:
   • the responsible authority is of the opinion that the issue of a permit for the use of the land in the form agreed by the parties as described in the agreed orders is appropriate having regard to the matters it is required to consider under section 60 of the Planning and Environment Act 1987 (Vic) including the balanced application of the strategies and policies of the relevant Planning Scheme and is otherwise in conformity with the provisions of the Planning Scheme and the Act, and
   • the proposed orders will not result in any change to the proposal which would materially affect any person other than the parties to the proceeding.
5. Based on the information available to the Tribunal, I accept that the proposed use of the land is generally in accordance with the applicable PSP. The proposed land uses are also within the broad range of acceptable outcomes given the size of the land, its corner position and context with frontage to a main road. The additional permit conditions agreed to by the parties relate to the use of land, place limits on the uses and therefore fall within the Tribunal's jurisdiction. On the basis that the orders sought relate to the proposed use of the land only, I am prepared to give effect to the settlement reached by the parties pursuant to section 93(1) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic).
6. As I previously noted, the permit application also sought approval for development, signs and access to a road in the T2Z. The notice of decision makes it plain that the responsible authority has granted permission for these other aspects of the permit application. Conditions relating to development, with no nexus to land use, are not included in the agreement signed by the parties or this order giving effect to that agreement.
7. In situations like this, it is up to the responsible authority and the applicant to work out how to bring the two sets of permissions together, that is, those granted by these orders and those originally given by the responsible authority that cannot be the subject of a s 82(1) application. As noted by Quigley J in Myers:

[168] ...If there is any inconsistency between the two sets of permissions there is ample jurisdiction in the responsible authority under the terms of Condition 1 of the Notice of Decision or via the use of s 72 of the Planning Act to harmonise any inconsistency.

1. The separation of permissions into two categories, those that have been granted by the responsible authority and those that can be reviewed and fall within the Tribunal's jurisdiction creates a somewhat disjointed, inefficient and challenging process for the parties.
2. Unlike the situation where the Tribunal can make an order finalising all the permissions sought in the permit application in a holistic way, the need for the parties to embark on yet another administrative process to, in the words of Her Honour '...harmonise any inconsistency' and bring the two sets of permissions together, can be messy depending on the complexity of the matter. In this case, the situation is akin to untangling and separating entwined strands of different types of pasta on a plate, causing uncertainty and adding yet another administrative process resulting in further cost and delay. Changes to legislation to enable the Tribunal to finalise a permit application in totality in situations like this is worth consideration.
3. In this case, I congratulate the parties on working hard to untangle the strands of pasta and anticipate that the responsible authority and the permit applicant will work co-operatively to achieve the outcome envisaged by Her Honour in Myers.

Matter for which the permit has been granted

1. Before the development starts, amended plans must be prepared to the satisfaction of the responsible authority. When approved, the plans will be endorsed and form part of the permit. The plans must be drawn to scale with dimensions and be generally in accordance with the plans forming part of the application prepared by JR Design Australia Pty Ltd, Revision B, Pages TP01B-TP0B (all pages) dated 10/12/2024, but modified to show:

(a) The lighting design plan required by condition 17.

1. Before the development starts and in conjunction with the submission of plans required under Condition 1, an amended Traffic Impact Assessment (and swept path diagrams) must be submitted to and approved by the responsible authority. When approved, the plans will be endorsed and form part of the permit. The plans must be generally in accordance with the traffic impact assessment and swept path diagrams forming part of the application but modified to be generally in accordance with the amended plans required under Condition 1.
2. At all times what the permit allows must be carried out in accordance with the requirements of any document approved under this permit to the satisfaction of the responsible authority.
3. The layout of the use must not be altered from the layout on the approved and endorsed plans without the written consent of the responsible authority.

1. The use of the service station must only operate between the following times:

The responsible authority may consent in writing to vary these requirements.

1. The use of the food and drink premises must only operate between the following times:

The responsible authority may consent in writing to vary these requirements.

1. The use of the car wash must only operate between the following times:

(a) 7 am and 8 pm, 7 days a week, including public holidays.

The responsible authority may consent in writing to vary these requirements.

1. Deliveries to and from the site must only occur between the following times:

(a) 7 am and 10 pm Monday to Saturday.

(b) 9 am and 10 pm Sunday or public holiday.

The responsible authority may consent in writing to vary these requirements.

1. Waste Collection must only occur between the following times:

(a) 7 am and 8 pm Monday to Saturday.

(b) 9 am and 8 pm Sunday or public holiday.

The responsible authority may consent in writing to vary these requirements.

1. Before the development starts, an acoustics report must be submitted to and approved by the responsible authority. The report must be generally in accordance with the report submitted with the application prepared by Enfield Acoustics Pty Ltd, dated 10 December 2024. When approved, the report will be endorsed and form part of the permit. The diagrams and details in the report must be generally in accordance with the other plans approved and endorsed under this permit.
2. The recommendations and mitigation controls as shown in the acoustic report endorsed as part of this permit must be carried out to the satisfaction of the responsible authority.
3. The use must be managed so that the amenity of the area is not detrimentally affected, 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

to the satisfaction of the responsible authority.

1. Noise levels emanating from the premises must not exceed those required to be met under Environment Protection Regulations 2021 (Noise Limit and Assessment Protocol for the Control of Noise from Commercial, Industrial and Trade Premises and Entertainment Venues), Publication No. 1826.
2. No external sound amplification equipment, loudspeakers or public address system are to be used for the purpose of announcement, broadcast, playing of music or similar purpose.
3. All external plant and equipment must be acoustically treated or placed in soundproof housing to reduce noise to a level to the satisfaction of the responsible authority.
4. Before the development starts, an acoustic fence must be erected along the northern and eastern boundaries of the land to the satisfaction of the responsible authority. The fence must be designed by a suitably qualified acoustic engineer in accordance with the endorsed plans and to the satisfaction of the responsible authority.
5. Prior to the endorsement of plans under Condition 1, a detailed lighting design plan must be prepared which meets the objectives of Australian Standard 4282 - 2023 'Control of the obtrusive effects of outdoor lighting' to the satisfaction of the responsible authority. The detailed lighting design plan must show:

(a) All external lighting provided on the site to be baffled so that no direct light is emitted beyond the boundaries of the site and no nuisance is caused to adjoining properties to the satisfaction of the responsible authority; and

(b) All lights associated with the car wash to be off when the car wash is not in operation.

1. External lighting must be designed, baffled, located and managed so as to prevent any light-spill on adjoining land in accordance with the endorsed lighting management plan and to the satisfaction of the responsible authority.

1. Before the development starts, an amended waste management plan must be submitted to and approved by the responsible authority. When approved, the plans will be endorsed and form part of the permit. The plan must be generally in accordance with the plans forming part of the application prepared by SALT3 dated 12/09/2024, but modified to show the following details:

(a) Generation rates corrected to align with calculations using the SV Guide. This is including (but not limited to) salt waste generation for the convenience store component which should state generations of 2100L per week when using the SV Guide.

1. Waste management and collection must be carried out in accordance with the requirements of the approved and endorsed waste management plan to the satisfaction of the responsible authority.
2. All waste and recyclables must be stored in and collected from an area set aside for this purpose. This area must be graded, drained and screened from public view to the satisfaction of the responsible authority.
3. All waste material not required for further on-site processing must be regularly removed from the site to the satisfaction of the responsible authority. All vehicles removing waste must have fully secured and contained loads so that no wastes are spilled, or dust or odour is created, to the satisfaction of the responsible authority.

1. Before the uses start, the areas set aside for the parking of vehicles and bicycles, and access lanes as shown on the endorsed plans must be:

(a) Constructed.

(b) properly formed to such levels that they can be used in accordance with the plans.

(c) surfaced with an all-weather-seal coat.

(d) drained.

(e) line marked to indicate each car space and all access lanes.

(f) clearly marked to show the direction of traffic along access lanes and driveways.

to the satisfaction of the responsible authority.

At all times car spaces, access lanes and driveways must be kept available for these purposes.

1. Once constructed, the car parking and accessway areas must be maintained to the satisfaction of the responsible authority. Otherwise, rectification works at the direction of and to the satisfaction of the Responsible Authority must be undertaken within a timeframe as directed by the Responsible Authority.
2. All car parking spaces must be designed to allow all vehicles to drive forwards when entering and leaving the property.
3. A minimum of one (1) car space must be provided for the exclusive use of disabled persons. The car space must be provided as close as practicable to a suitable entrance of the building and must be clearly marked with a sign to indicate that the space must only be utilised by disabled persons to the satisfaction of the responsible authority. The dimensions and layout of the car space) must be in accordance with Australian Standard AS2890.6-2009 (Accessible (Disabled) Car Parking Requirements) and the Building Code of Australia.
4. Before the uses start, protective kerbs with a minimum height of 150mm to prevent damage to fences or landscaped areas must be provided to the satisfaction of the responsible authority.
5. Before the use starts, new vehicular crossings to Plumpton Road and Taylors Road must be constructed to the satisfaction of the responsible authority.
6. Before the use starts, concrete kerbs or other barriers must be provided to the satisfaction of the responsible authority to prevent direct vehicle access to Sagrada Way.
7. Before the uses start, all existing disused or redundant vehicle crossings must be removed and the nature strip and kerb and channel reinstated to the satisfaction of the Responsible Authority at the cost of the owner.
8. Access to the site must only be at the nominated crossing shown on the endorsed plan. The crossing and road pavement works must be constructed to the satisfaction of the responsible authority.
9. The loading and unloading of goods from vehicles must only be carried out on the land within the designated loading bay and must not disrupt the circulation and parking of vehicles on the land, to the satisfaction of the responsible authority.
10. The design of bicycle spaces as identified on the approved and endorsed plans must:

(a) Provide a space for a bicycle of minimum dimensions of 1.7 metres in length, 1.2 metres in height and 0.7 metres in width at the handlebars.

(b) Be securely fixed to a wall or to the floor or ground.

(c) Be of a shape that allows a cyclist to easily lock the bicycle frame and wheels.

1. Polluted and/or sediment laden run-off must not be discharged directly or indirectly into Council drains or watercourses.

1. This permit will expire if one of the following circumstances applies:

(a) The uses do not start within 2 years of completion of the development.

(b) The use is discontinued for a period of 2 years.

An application may be submitted to the Responsible Authority for an extension of the periods referred to in this condition.

[1] The applicable PSP is the Plumpton Structure Plan

[2] See Clause 37.07-13 to the Urban Growth Zone