Mr Stuart Morris QC, instructed by Equipe Lawyers Pty Ltd. He called the following witnesses -

• Mr Richard De La Rue, director, De La Q Pty Ltd
• Mr Neville Goddard, acoustic engineer, Watson Moss Growcott Acoustics Pty Ltd
• Mr Alistair Wenn, landscape architect, Tract Consultants Pty Ltd
• Ms Charmaine Dunstan, traffic engineer, Traffix Group Pty Ltd
• Mr Andrew Rodda, town planner, Contour Consultants Pty Ltd

Ms Maureen Lim, President, for Kingston Residents Association Inc

Mr Peter Wearne, Taylor Splatt Lawyers for John Benedek and Andrew & Sandra Benedek (Mr John Benedek also made a submission on 23 September 2013)

Mr Garry Ross, Secretary, for Defenders of the South East Green Wedge Inc

Application under section 79 of the Planning and Environment Act 1987

Design & Development Overlay Schedule 5 (Aviation Obstacle Referral Height Area No 2) (DDO5)

Public Acquisition Overlay Schedule 1 (Roads Corporation) (PAO1) (Mornington Peninsula Freeway extension between Springvale Road and the proposed Dingley Bypass)

Clause 35.04-1 (use of land in GWZ2 for a Vehicle store)

Clause 35.04-5 (buildings or works for a Vehicle store in GWZ2)

Clause 45.01-1 (use or buildings or works for a Vehicle store in PAO1)

Clause 52.06 (reduce the statutory parking requirements for a Store)

Clauses 10, 11, 13.04-1, 15, 17, 21.02, 2.03, 21.04, 21.10, 21.12, 22.03, 22.04, 52.06, 52.07, 52.17, 52.34, 57 & 65

The land is on the north-east corner of Boundary Road and Junction Road, Dingley Village, about 500 m southeast of the intersection of Boundary Road and Heatherton Road. The land is an irregular shape. It has a frontage of about 115 m to Boundary Road, a frontage of about 430 m to Junction Road and a frontage of about 266 m to Grange Road to the east. It has a total area of about 9.75 ha. A section of a creek about 120 m long crosses the narrower western part of the land in a north-east to south-west direction. Another section of the creek, also about 120 m long, abuts the western end of the northern boundary of the land. There is some vegetation along both creek sections and along the southern and eastern boundaries. The land is presently vacant. The land to the east of the creek was used for sand extraction between about 1980 and 1995 and was clean filled between about 1995 and 2001. The land falls about 5 m from east to west over a length of about 300 m

22 September 2013 & 20 October 2013 (both unaccompanied)

1. Gormacile Pty Ltd (Gormacile) wants to park vehicles, mainly trucks, on a large vacant former but now rehabilitated sand quarry site, near Dingley Village.
2. Gormacile applied to the Kingston City Council for a permit under the Kingston Planning Scheme to use and develop the land for a Vehicle store. The Council failed to decide the application within the prescribed period and Gormacile has applied to the Tribunal to review the Council's failure to decide.
3. The Council subsequently decided that, if Gormacile had not applied to the Tribunal, it would have refused a permit. The Respondents oppose the grant of a permit.
4. The main issues for determination in this proceeding are -
   • Is the land use a Vehicle store?
   • Does the proposal respond to its physical context?
   • Does the proposal respond to Green Wedge Zone provisions?
   • Does the proposal respond to State and local policy?
   • Will the proposal cause unreasonable amenity impacts?
   • Will the proposal cause unreasonable traffic impacts?
5. After considering all the submissions and evidence, and inspecting the land and surrounds, I have decided to set aside the Council's decision and to grant a permit subject to conditions. My reasons follow.

1. The proposal affects only part of the land, being that part east of the creek that crosses the land and comprising about 80% of the area of the land.
2. The proposal is for the open air parking of larger vehicles. It will provide parking for a maximum of 196 vehicles, being 30 vehicles up to 30 m long, 62 vehicles up to 20 m long and 104 vehicles up to 15 m long. All vehicle spaces are 5 m wide.
3. No buildings are proposed. No on-site staff are proposed. There will be regular security patrols. Vehicle drivers will activate entry and exit via an electronic security gate.
4. Accessways and vehicle spaces are finished with crushed rock and line marked with stud markers or similar. There is a single vehicle access point at the existing crossover in Junction Road, about 80 m east of the creek. There will be 2.1 m high chainmesh security fencing along the boundaries. Access to the land will be available 24 hours each day.
5. Mr De La Rue is a director of De La Q Pty Ltd and has considerable experience in the waste, transport and extractive industries. He was involved in the late stages of sand extraction from the land and in the filling of the land. De La Q Pty Ltd plans to enter a joint venture partnership with Gormacile under which Mr De La Rue will manage the proposal.
6. Mr De La Rue's evidence is there is a need for the proposal because of the growth in the overall volume of road transport, the growth in the size of vehicles and the growth in owner/operator and small and medium sized transport businesses. In his opinion, the proposal meets a major challenge these businesses face in finding a secure place to park or store these vehicles at the end of the day near the drivers' homes, particularly as planning and road safety laws generally prohibits parking or storage at homes or in residential streets.
7. Mr De La Rue proposes to offer parking or storage facilities on short and long term leases or licences for a wide range of larger vehicle types such as flat top carrying trucks, taxi trucks, removal vans, tip trucks including tandems, truck and dogs, semi trailers and B Doubles. It will not be a casual truck parking area, like a truck stop.
8. Some trucks parked or stored on the land may be laden in readiness for transport the next day or in the near future. In questioning, Mr De La Rue agreed he would accept vehicles laden with plant (eg earthmoving equipment) but would not accept any vehicle laden with chemical, petroleum or other hazardous materials or any wastes to be stored on the land. He also emphasised that there will be no washing or servicing facilities, although he conceded minor washing (eg windscreens) and urgent repairs could be effected on the land.
9. His evidence is that most drivers will arrive at the land in their own car, although some may be dropped off at the land. There are 34 car spaces adjacent to the west boundary so that a driver can park his or her car while readying their truck to leave the land. When the truck is ready to leave the land, the driver can temporarily park the truck in one of two temporary parking lanes (about 110 m and 130 m long, respectively, at the west and east end of the land) while the driver moves his or her car to the space in which the truck was parked.
10. Even if all drivers arrived in their own cars, this rotation of cars and trucks is said to mean that providing more than 34 car spaces on the land is unnecessary.
11. In Mr De La Rue's opinion, the land is suited and well located for the proposal because it is close to transport routes[1] and residential areas, has space for manoeuvring of large vehicles, and has space for generous boundary buffers.
12. The layout plans attached to the permit application shows six north-south aisles (all one-way to the north) and two east-west aisles along the north boundary (one way to the east) and south boundary (two ways) of the land. Vehicles move in a generally clockwise direction to move around and exit the land.
13. At the hearing, Gormacile relied on informal amended layout plans. The one row of larger vehicle spaces is moved from the west to the east boundary and the two rows of smaller vehicle spaces are moved from the east to the west boundary. Circulation around the land is moved to generally anti-clockwise so that all departing vehicle travel north and then west before turning south when opposite the access point.
14. Under the permit application plans, vehicles in 75% of the 104 small vehicle spaces would require a reverse manoeuvre to exit the space. Under the amended plans, none of these spaces would require this manoeuvre.
15. The proposal includes landscaped buffers to all boundaries, except for the vehicle entrance off Junction Road. Gormacile relied on the landscape plans in Mr Wenn's report. The plans shows a buffer -
    • Along the southern boundary (ie to the public realm interface to Junction Road) that is 25 m wide and which includes an earth mound no less than 4 m high.
    • Along the eastern boundary (ie to the public realm interface to Grange Road) that is 25 m wide and which includes an earth mound no less than 2 m high.
    • Between 15 m and 80 m wide along the creek (ie in the northwest of the land and where the creek crosses the land) and which includes an earth mound no less than 0.5 m high.
    • Along the northern boundary (a private land interface) that is 10 m wide and which includes an earth mound no less than 0.5 m high.
16. Each of the buffers will be planted with indigenous trees, shrubs and groundcovers. The selected tree species are expected to grow to 5 m at 4 years, and the selected shrub species are expected to grow to 4 m at 3 years.
17. The proposal includes 24 hour lighting on poles up to 8 m high.

1. Gormacile applied for a permit to use and develop the land for a Vehicle store. A vehicle store is defined as -

Land used to park or store vehicles in connection with a goods or passenger transport business.[2]

1. My task is to decide the real and substantial purpose of the use. If that purpose comfortably fits or falls within a Vehicle store as defined, that will be the use properly characterised. If it does not, I need to consider if it comfortably fits or falls within another defined use. If it still does not, the use is likely to be an unspecified use.
2. Having regard to the permit application, the evidence and the submissions in this proceeding, the main activity is the parking of empty or laden larger commercial vehicles that transport goods or passengers. Most of these vehicles will be operated by multiple unrelated transport businesses. Hence, I find the real and substantial purpose can be simply stated to be the parking of trucks and other larger commercial vehicles.

Land used to store goods, machinery or vehicles.[3]

1. The Council and some Respondents submitted the proposal is a Store. In the GWZ, a Store is a prohibited section 3 use and a Vehicle store is a permit-required section 2 use.
2. The important distinction between Vehicle store and Store is that the former includes and the latter excludes the parking of vehicles. Although a Vehicle store is nested within a Store, a Vehicle store is not perfectly nested in this sense. This means that even if a use is not a Vehicle store it does not necessarily follow that it is a Store.
3. In Andsand No 2,[4] the Tribunal considered a proposal to store, garage and repair commercial vehicles and equipment on nearby land in the GWZ. In that case, the Tribunal accepted a distinction between storing goods and parking or garaging of vehicles. The distinction was accepted in Plant.[5]
4. I recognise that the proposals in Andsand and Plant are different to this proceeding and that the Tribunal in those cases characterised the proposals as a depot or contractor's depot. However, the distinction between storage and parking remains apt in this proceeding. The vehicles are not being stored in the sense that they are kept on the land for a specified period before being moved somewhere else and they are unlikely to return. The proposal is not properly characterised as a Store.

1. A motor vehicle is not defined in the scheme. Dictionary meanings refer to a road vehicle with a motor and without reference to a more particular type of vehicle. A range of vehicles will be parked on the land. There will be a lease or licence arrangement. There will be 24 hour access to the land. The land will be securely fenced. Nonetheless, the proposal is to my mind not properly characterised as a Car park because the common understanding for planning purposes is land accommodating conventional vehicles usually with two or four wheels primarily to transport people rather than goods.

1. In a Vehicle store, a vehicle must be connected to 'a' requisite business. This does not require one business.[6] Therefore, any connection with multiple businesses, as proposed, is not fatal.
2. The Council submitted the proposal fails to prove a connection with a 'goods or passenger transport business'. This is not because the business is (or businesses are) not carried out on the land,[7] but because the proposal does not specify the particular business. Because Gormacile is unable to identify whether every vehicle to be parked is connected to a goods or passenger transport business, the Council submits the use cannot be a Vehicle store.
3. The requirement that connection with a particular goods or passenger transport business be identified for every vehicle that might be parked on the land before the land could be characterised as a Vehicle store is unnecessary and unreasonable having regard to the particular use.
4. It is unnecessary because the real and substantial purpose could be a Vehicle store even if certain activities may not accord with the requirements of the definition. As one example, assume a large Winnebago driven by a relative of a resident in a nearby suburb visiting from interstate occupied one of the vehicle spaces for several days. As another example, assume a soil delivery truck operated by a nearby plant nursery occupied one of the vehicle spaces from time to time. In the first example, the connection is a non-business one. In the second example, the connection is not with a business that is not a goods or passenger transport business. However, that does not mean the real and substantial purpose is not the parking of trucks and other larger commercial vehicles. As stated, the task is to ascertain the real and substantial purpose and not individual activities.
5. It is unreasonable because it does not suit a use that aggregates and accommodates multiple occupants or users on a single site. Examples include a self-storage facility where multiple individuals or businesses store goods or a market where multiple individuals or businesses sell from stalls. For policy reasons, these sorts of uses should not be excluded because they enable land to be efficiently used to meet community needs. In this case, the scheme discourages parking or storage at or near the home of the driver if in a residential area.
6. Rather than requiring certainty in all instances, the approach I prefer is to firstly to ascertain what is reasonably likely on the evidence and secondly to consider whether conditions included in any permit can reasonably support or confirm what is reasonably likely.
7. In this case, the evidence of Mr De La Rue is that the vehicles on the land will be trucks and other larger commercial vehicles connected with mainly small and medium size businesses that transport goods.
8. The Defenders of the South East Green Wedge Inc submitted that, to the extent trucks may be carrying 'earthmoving equipment, skip bins and rubbish', such trucks cannot be in connection with a goods transport business because these items are not goods. This submission first assumes that the connection test requires all vehicles to be capable of carrying goods. I doubt that is the case. A vehicle, for example, that transports drivers to goods transport vehicles might still be connected to a goods transport business.
9. However, I do not need to rely on that proposition to deal with the Defenders' submission. Goods are not defined in the scheme. Goods have a wide meaning.[8] I agree with Mr Morris that the implication from these authorities is that goods include equipment (including earthmoving plant and equipment) but are unlikely to include rubbish. A truck carrying rubbish or other wastes is unlikely to be connected to a goods transport business. This issue will not arise with this proposal because no truck carrying waste will be permitted to park on the land. A truck carrying empty skips will not, however, fall foul of the goods requirement or Gormacile's restriction.
10. There is no evidence that most trucks will not be of the type identified by Mr De La Rue. It is possible that the some vehicles will not be connected to the requisite type of business but there is no evidence that the volume will be such as to result in a different real and substantial purpose. Conditions can be included on a permit to help maintain the real and substantial purpose. Mr Rodda supported this approach. While the conditions should not be of a type that makes enforcement too onerous,[9] this is not a problem with the concept but one of drafting.
11. For the above reasons, the real and substantial purpose of the use is one that comfortably fits and falls within the defined use Vehicle store.
12. The land is zoned GWZ and a Vehicle store is a section 2 use for which a permit may be granted in that zone subject to the relevant considerations under the scheme and legislation.

1. A depot is an unspecified use in the GWZ. I rely on the Tribunal's reasoning in De Hann[10] that the proposal is not a depot or, more particularly a contractor's depot, primarily because there are no administrative, repair or maintenance functions carried out on the land.

1. The first of the merits issues goes to how the proposal responds to the physical context of the land and its surrounds.
2. The land is vacant and largely cleared and is a former sand quarry. It has been filled with engineered fill. It has a gentle overall rise of about 1 in 60 to its north-west corner.
3. In its current state, the land has low agricultural, environmental or landscape values.
4. The surrounding area is a former largely market garden and sand extraction area that has changed and is used less for such purposes. It is now characterised by materials recycling, market garden, landfill, place of assembly and quarry uses, as stated in more detail below.
5. To the north on Boundary Road (on the west side of the creek that crosses the land) is a materials recycling business. To the immediate north of this business is a place of worship (Jehovah's Witnesses) comprising a centrally located building surrounded by a large hardstand parking area. To the north of the place of worship is a solid fuel depot. To the north of this depot is another materials recycling business on a larger site, the rear part of which is vacant and abuts the land.
6. To the west, on the west side of Boundary Road, are market gardens and two groups of three to four dwellings. The first group is directly west of the land and the dwellings are about 220 m from the nearest part of the proposed use. The second group is further to the northwest and the dwelling are about 240 m from the nearest part of the proposed use.
7. To the east, on the east side of Grange Road, is a refuse recycling (composting) centre and a plant nursery. Abutting to the east of the plant nursery is an outdoor recreation facility (paintball centre), a quarry and green waste and concrete recycling centre.
8. To the south, on the south side of Junction Road, is (from east to west) -
   • Vacant land, formerly a earthmoving equipment training centre.
   • Two dwellings and associated contractor's truck depot. The Benedek families live here and keep about six vehicles and employ about six full time drivers in the business.
   • A market garden.
   • Two industry/storage uses.
9. I find the proposal is an adequate response to its immediate physical context because it is compatible with the industrial or semi-industrial uses (materials recycling, plant nursery, refuse recycling, quarry and vehicle depot uses), institutional use (place of worship) and commercial use (paintball centre). The dwellings on the west side of Boundary Road are not proximate to the proposal and they and the two dwellings in Junction Road are not a significant part of the physical context.

1. The second of the merits issues is how the proposal responds to the purposes of the GWZ and specified considerations (decision guidelines) for applications for section 2 uses.
2. As previously stated, a permit may be granted for a Vehicle store in a GWZ. There are no section 2 conditions for a Vehicle store.
3. The GWZ has a number of zone purposes. The most relevant one is how it responds to or implements the relevant policy framework. This is the most important purpose in this proceeding and is addressed later in these reasons. A number of purposes relate to encouraging the use of land for agriculture. These purposes are more applicable to areas of GWZ more distant from urban activities. The land is close to the inner point of the relevant green wedge where long term agriculture is a less realistic or practicable outcome.[11] As the Tribunal found in another Vehicle store case in this part of the green wedge in the City of Kingston off Springvale Road, this is not a 'pristine green wedge area'.[12] The land has been used for extraction of earth resources and that use has finished and a new use appropriate in a GWZ must now be sought.
4. The most relevant decision guidelines in the GWZ relate to general, environmental, and design and siting issues.
5. In relation to general issues, the proposal does not respond well to rural land use, heritage management, recreation or tourism objectives because the proposal is a Vehicle store. The proposal could be located in an urban area but I am unable to find that it should be located in a GWZ because it is 'essential to health, safety and well-being of the State'. On the other hand, the land is suitable for the use because of the land's physical characteristics (size, access, orientation, topography etc) and the use is compatible with the adjoining uses, as discussed above. As well, the proposal minimises adverse impacts on the appearance of the area because of the landscaped buffers on all boundaries. It responds positively to general issues.
6. In relation to environmental issues, the proposal responds positively because the degraded creek environment will be revegetated with generous sized buffers and water sensitive urban design features.
7. The proposal responds positively to design and siting issues. The impacts on landscape features and roads are enhanced by the broad, mounded landscaped buffers along all boundaries, especially along the Junction Road. Any internal security lighting on elevated pylons has the potential to be infrastructure that does not minimise landscape impacts, but this can be mitigated by permit conditions.

1. The third of the merits issues is how the proposal responds to policy.
2. The land is in the non-urban area of the City of Kingston being part of the South East Green Wedge and local policy recognises the role of the area in supporting and maintaining the green wedge concept and accommodating rural and urban-related activities.[13]
3. At a broad level, local policy supports use of the green wedge for rural and urban related purposes. The policy states that urban related purposes include churches, sporting facilities and institutional uses. In this proceeding, there was some argument about whether a Vehicle store was an urban use (and discouraged) or an urban related use (and not discouraged). I agree with the Tribunal in Defenders that the distinction is artificial and of little assistance,[14] and that an area for the parking of nearly 200 trucks and other larger commercial vehicles is land extensive and could be both an urban or urban related use.[15]
4. Local policy supports use in this area for agriculture, extractive industry, public open space, utility facilities and low density institutional uses.[16] A Vehicle store is not one of these but the policy is not a prohibition and other section 2 uses in a GWZ can be permitted on their merits.
5. There is specific policy support for converting sand extraction and landfill sites to open space but the specific open space policy does not identify the land as part of a future chain of parkland.[17] In fact, land in the chain is some distance from the land so the need for the land to be compatible with or contribute to open space policy is doubtful. However, even if I am wrong about this, the extensive landscaped mounds along the land's boundaries and broad, flat open area within them will ensure the proposal is relevantly compatible and contributory. The proposed Mornington Peninsula Freeway extension north of Springvale Road, which runs along Grange Road and affects a small part of the land in its southeast corner, is a future barrier between the land and the chain.
6. Local policy encourages activities that are consistent with and contribute to 'optimal long term planning outcomes' for the whole South East Green Wedge and with structure plans for relevant parts of the non-urban area.[18]
7. This leads me to what is in effect a structure plan known as the Kingston Green Wedge Plan dated April 2012 (the Plan). It was adopted in a modified form by the Council on 27 August 2012 'as a framework for action' and as the basis for implementation through, in part, an amendment to the scheme. It has not been subject to formal comment and independent review. As an adopted, but not yet approved, structure plan, the Plan is nonetheless a relevant consideration.[19]
8. The proposal responds adequately to the Plan's vision.[20] Although the proposal does not have a semi-rural 'feel' in the sense up to about 200 trucks will be regularly moving into and out of the land, it will have a semi-rural 'appearance' as Mr Wenn's montages confirm the landscaped mounds and not the parked or stored vehicles will be the dominant visual element.
9. The proposal also responds to the Plan's vision of providing 'local and regional services and facilities'.[21] The Plan does not limit the type of service or facility. In find the proposal is a facility for the parking of trucks and larger commercial vehicles. Consistent with the evidence of Mr De La Rue, it will provide a facility for people in nearby residential areas to move their trucks from those residential areas to a nearby better located facility. The proposal also responds to the Plan's vision of enhanced biodiversity along the creek.
10. The land is a recent landfill site. Rehabilitation is complete. A new use awaits. The Plan identifies such sites as being in 'transition'.[22] The Plan recognises alternative uses for landfill sites must be found, especially (as in this case) if not required for public open space. The Plan generally encourages uses without substantial structures.[23] The proposal does not include substantial structures.
11. The Future Land Use map in the Plan identifies the land as a 'transitional area (until 2025)' with some open space along the creek and along the proposed freeway extension.[24] The basis for the 2025 transition date is unclear. It appears to relate to a 15 year period since preparing the Plan started in 2010 for uses on some other post-landfill sites. The Plan does not specify preferred uses in a transition area, but there are some references to future potential active recreation uses in such areas.[25]
12. The proposal includes no buildings. The Plan envisages some buildings as appropriate in transition areas. The Plan encourages buildings that are absorbed in a landscaped setting. It also encourages landscaped treatments to screen buildings and roads. The landscaped mounds screen the vehicle spaces and internal roads. It also encourages permeable surfaces. The vehicle spaces, car spaces and internal roads are permeable. On land without buildings, the Plan encourages indigenous tree planting to complement the landscape. The mounds include such planting. The Plan encourages water sensitive urban design techniques. The proposal includes such techniques or can be required by conditions.
13. In summary, the proposal responds positively to the Plan. It is an appropriate use in a transitional area. There are no buildings. The landscaped perimeter creates a setting that enhances the landscape and would be unlikely to conflict with future new uses after the transition period, including the recreation-oriented uses mentioned in the Plan.
14. It is also relevant that the Council's Green Wedge project officer concludes in his report to the Council's planners that the proposal is 'a good fit' with the Plan's vision for 'local and regional services and facilities' and with the Plan's 'private realm design guidelines'. However, the officer stated potential off-site amenity affects had to be addressed and appropriate permit conditions relating to the provisions of the Plan. I will shortly deal with those matters.
15. I have one reservation about the proposal's response to policy. As I have stated, a Vehicle store is not a specified preferred use in a non-urban area but this does not mean it is discouraged. However, the policy prefers 'activities which are consistent with the function and character of the non-urban area'.[26] The function and character of the surrounding area is, as I have already stated, is atypical for a green wedge in that there are significant industrial, commercial and institutional uses. Those uses may, over the longer term, be replaced with other uses more preferred by the Plan. However, there was no evidence that any of those existing uses must cease by specified dates. These activities do not operate much, if at all, after business hours. The area becomes a quiet backwater after dark.
16. The proposal places into this area a 24 hours per day activity of vehicle movements on the land and in Junction Road. The additional vehicles on Boundary Road, a main road, is not exceptional. I accept Mr De La Rue's evidence that most movements will be during the 5 am to 10 am period for departures and from 2 pm to 6 pm for arrivals. However, there may be vehicles that will be late arrivals at night from longer working days, perhaps because being laden with goods was delayed for some unforeseen reason.
17. Vehicle movements over 24 hours is not consistent with the function and character of the surrounding area. Such movements may be reasonable in an industrial area but are not reasonable in this non-urban area. It is reasonable to require a quiet period during the late evening and early morning. This is appropriate on character and not amenity grounds. I will include a condition restricting movements between midnight and 4 am each day.

1. The amenity issues in dispute related to visual appearance, dust, traffic, odour, light, privacy and noise.
2. Amenity issues must be assessed in their context. As stated, the surrounding area has significant industrial, commercial or institutional uses, with associated noise, traffic and dust. Residential area levels of amenity cannot be expected.[27]

1. The land does not have a high level of visual amenity. The landscaped perimeter mounds will, in a little more than two years, result in a significant improvement to amenity.

1. Dust may potentially cause some detriment during the development phase of the Vehicle store. Once established, the compacted crushed rock surface of the truck spaces, car spaces and internal roads and landscaped mounds will not result in unreasonable dust. It is relevant that the existing market garden, composting and quarrying activities in the surrounding area are likely to cause dust movement from time to time during warmer periods of the year. Appropriate permit conditions can suppress unreasonable dust. Vehicle store traffic on the Junction Road sealed surface will not cause dust problems.
2. The Kingston Residents Association Inc sought a condition that required the chainmesh security fence to be clad in shadecloth or similar to minimise the escape of dust. There was no evidence that shadecloth will have any material effect in that respect. Having regard to other chainmesh fences clad in shadecloth that I observed in the surrounding area on my inspections, the loss of visual amenity associated with poorly maintained shadecloth outweighs any dust suppression benefit.

1. I accept Mr Goddard's evidence that the use can operate within the limits set by SEPP N-1 subject to appropriate conditions that will be included in the permit.
2. Mr Goddard assumed 24 hour operation and minimal truck movements between 10 pm and 5 am but a significant increase between 5 am and 7 am. He also assumed a typical speed of 20 kmh on the land and a 2 minute average warm up period plus 2 minute average departure period. Mr Goddard paid particular attention to the two nearest dwellings at 1 and 1A Junction Road (occupied by the two Benedek families) and carried out attended and unattended noise monitoring.
3. The mounded landscaped buffers opposite those dwellings, together with other existing noise barriers (eg the substantial front fence to those dwellings), are important in ensuring an acceptable standard at all times during the day and night.
4. I will include a condition requiring amended plans to reflect the amended informal layout. The benefit of the amended layout is that no trucks (as opposed to 75% of the small trucks in the application plans) are required to reverse to exit the land. As most exit movements will be between 5 am and 10 am on weekdays, this will substantially cut the reverse beeping noise. Mr Goddard recommended the amended layout. It will help ensure SEPP N-1 compliance. Mr Goddard's noise predictions, taking into consideration his assumptions and these conditions, sit comfortably below the relevant limits.

1. There will be no odour issues associated with the storage of wastes because no wastes will be permitted to be stored on or in a vehicle. Diesel fumes will be restricted because no vehicle will be permitted to refuel on the land. The passage of polluted spray water from the land will be restricted because no washing of vehicles will be permitted.

1. Gormacile proposes baffled lighting on 8 m high poles for security and operational reasons during early morning and the evening. Poles at this height will detrimentally affect the appearance and character of the area, even with the landscaped mounds, and I will include a condition requiring the use of lower level lighting.

1. The Benedeks claim unreasonable loss of privacy from drivers in vehicles on the land. The loss is unlikely given the landscaped mounds so close their land. Even if there is some capacity to view the Benedeks' dwellings from trucks on the land, the loss is not unreasonable given the distances involved, the existing loss that may exist from trucks travelling along Junction Road, and the high front fence and landscaping at the Benedeks' land.

1. Traffic will not cause amenity problems in Junction Road. The Benedeks' dwellings at 1 and 1A Junction Road are about 150 m east of the entrance to the land and therefore no trucks in the Vehicle store will need to pass the dwellings. Those dwellings are affected by trucks associated with their own cartage business and with the industries further east along Junction Road. The movement of crushed rock from internal roads to the Junction Road surface will be minimised by the entrance being sealed for a reasonable distance inside the entrance.

1. The main traffic issue is how the proposal impacts on the surrounding road network. All trucks will enter and exit the network via the unsignalised Junction Road and Boundary Road T-intersection.[28] The critical period is the AM peak because some of the trucks may choose to turn right and need to give way to both lanes of traffic.
2. Boundary Road is divided and has two lanes in both directions in the vicinity of Junction Road.[29] There is an auxiliary right turn lane into Junction Road for northbound vehicles and a widened left turn lane into Junction Road for southbound vehicles. The break in the median in Boundary Road at Junction Road is about 8 m wide so it can safely store a truck of that length.
3. Ms Dunstan conducted a road safety review of the immediate Boundary Road area (between the Heatherton Road and Old Dandenong Road intersections) and a wider area further to the south along Boundary Road. I rely on her opinion that while there have been a number of crashes at these two intersections, there is there is no data indicating any material road safety record at the Junction Road intersection.
4. Ms Dunstan's surveys of the intersection show it carries low traffic volumes during the AM and PM peaks. In particular, all 8 trucks entering Boundary Road from Junction Road in the AM peak turned left.
5. Ms Dunstan's tube counts in Boundary Road show peak volumes near the land are between 7.45 am and 8.45 am on weekdays. Her opinion on traffic generation and distribution is based on -
   • A conservative estimate of 30 trucks entering Boundary Road during this peak hour.
   • A 60/40 southbound/northbound split along Boundary Road, which is conservative given her intersection surveys for commercial vehicles.
6. Ms Dunstan carried out a gap acceptance analysis because all trucks turning right into Boundary Road in the morning peak will need to look for a gap both ways in the traffic because the gap in the median will not fit propping in the gap by all trucks. She adopted a conservative gap of 10 seconds and follow up headway of 8 seconds. In her opinion, the analysis shows that trucks from the proposal will use no more than about 10% of available capacity. This analysis was not subject to any serious challenge by the other parties.
7. Even if these conservative assumptions are proven wrong and the impact of right turning trucks out of Junction Road in the morning adversely affects the performance of the intersection, Ms Dunstan stated her results showed the percentage of trucks leaving the land and entering Boundary Road could be at least 50 % higher before the results may change. In other words, the results are not at the margin.
8. In addition, truck drivers will have two options to minimise delay and any safety impact. First, they can leave earlier than the peak ie before 7.45 am. In practice, this is highly likely. Second, they can decide to turn left into Boundary Road and use the nearby Old Dandenong Road intersection to enter the main road network.
9. I find that, relying on Ms Dunstan's overall analysis that although the proposal will materially add to traffic at the intersection, the impact on Boundary Road volumes will be marginal and that no mitigating works are required. Under questioning from the Council, Ms Dunstan's opinion was that the opening of the Bypass in coming years will tend to improve the gap acceptance analysis results. Traffic impacts are not a proper ground to refuse a permit.

1. A number of other issues were raised in the course of the hearing. I briefly report my findings.

1. The Council and Gormacile disagree about whether a permit is required under DDO5. Under DDO5, a permit is required to 'construct a building or construct or carry out works, which exceeds 25 metres in height'.[30] As no building is proposed, do the works exceed a height of 25 m? The Council relies the following DDO5 provision -

Notes: Building height relates to height above sea level expressed as a reduced level.[31]

1. According to the Council, the contour changes in the northeast corner of the land means those works are above RL 25 m above sea level.
2. If a permit is required under DDO5, a permit may not be granted without the consent of the 'Federal Department of Transport and Regional Services'.[32] Gormacile did not apply for a permit under DDO5 but the Council referred the application to the Department. The Department returned the application to the Council without assessment and requested it be removed as a referral authority.
3. The 'note' has the effect of a 'footnote'. A footnote in a scheme does not form part of the scheme.[33] I am therefore not required to apply it in construing DDO5. The purpose of the provision is to ensure the height of buildings and works do not cause a hazard to aircraft using nearby Moorabbin Airport or affect that airport's safe and effective operation. This only makes sense if the buildings or works exceed 25 m in height above natural ground level at the relevant point in DDO5. It does not make sense if, in this case, the lowering of the level of the land triggers a permit under DDO5.
4. Accordingly, no permit is required under DDO5. This is of little consequence because a permit for the works said to trigger DDO5 are required under the GWZ.

1. A Vehicle store must provide 10% of its site area for car parking. This requires 9,725 sq m to be set aside for car parking. The proposal sets aside 1,240 sq m or 1.2% of the land. Hence, Gormacile seeks a reduction from 10% to 1.2%.
2. Based on Ms Dunstan's parking analysis and Gormacile's proposal for drivers to temporarily park their cars in a 34-space car park before moving the car to the truck space until the truck is returned, a reduction is reasonable.

1. Under the Kingston Green Wedge Plan, it is recommended that the land be included in a Green Wedge A Zone (GWAZ). Under the GWAZ, a Vehicle store is a section 2 use only if the use 'is in a building not a dwelling and use to store motor vehicles used in conjunction with the occupation of a resident of a dwelling on the lot'. The proposal does not comply with this condition, so the proposal would be prohibited if the land was rezoned GWAZ. Neither the Plan nor the GWAZ is a seriously entertained planning proposal so I give little weight to the recommendation.

1. The Plan refers to the land being in a transitional area to 2025. Gormacile's primary submission is to accept a 15 year limited period for the permit, provided the Council may extend the period before the use must transition. If a permit is granted, the Council would only support a maximum of 10 years. The Respondents seek a lesser period than 10 years.
2. A 10 year period is less than the period in the Plan. I do not see a reasoned basis for it. Mr Rodda relates the 15 year period to the recent approval for the nearby Alex Fraser recycling centre. It is a more compelling period. It is reasonable that any extension be subject to a secondary consent application to the Council.
3. However, the difficulty I mentioned to the parties at the hearing is that the Council's ability to resist an extension may be compromised by the scheme's '15 year rule'.[34] If the use has established for at least 15 continuous years, the owner may be able to rely on the right and not need to seek an extension. The Tribunal, following the authority of the Supreme Court, has held the period of use may include the period in which the use has been carried out in accordance with a permit.[35]
4. These are complex legal issues and this is not the occasion for detailed analysis. Mr Morris agreed that the difficulty I raised may arise if a permit is granted subject to a 15 year extendable expiry. He agreed the safest course would be to grant a permit for a lesser period. On behalf of Gormacile he did not oppose a period of between 12 and 14 years. I will include a condition for a 14 year period.
5. A final issue concerns the Council's request that the condition be framed so that the owner be required to seek any extension well before the end of the 14 year period so that the Council has plenty of time to assess the request before the end of the period. The condition is not amenable for extension under section 69 of the Planning and Environment Act 1987 because it allows use for a specified period. Hence, the ability to apply for extension after expiry within 12 months does not apply. Any extension must be processed under secondary consent provisions.
6. I agree with Mr Morris that the owner is the only person that will disadvantaged if the owner fails to apply to extend until close to the end of the 14 year period, because the owner may be required cease the use until the request is decided. However, in the special circumstances of a transitional use, there is merit in requiring a secondary consent application to be made well before the transition date. This is consistent with orderly planning. I will frame the condition to require a request to be made no later than two years before the end of the 14 year period.

1. Some of the Respondents sought inclusion of a condition that required a future owner to restore the land to its pre-Vehicle store condition at the end of the transition period. It was put this will facilitate transition to a future use. Section 62(2)(c) of the Planning and Environment Act 1987 specifically allows a condition on a permit to use land for a specified period to remove any development allowed by the permit or to restore the land to a specified state at the end of the period. I am not persuaded such a condition is necessary or reasonable.
2. When the use is encouraged to transition, the landscaped mounds will be likely to covered with a dense, mature screen of vegetation. The vegetation may be usefully incorporated in whole or part to the next use. As well, the same may apply to the crushed rock internal surface and other features of the development. It is a matter for the owner proposing the next use and the Council at the relevant future date to consider these matters. A condition of the type sought is premature in these circumstances.

1. This overlay affects a part of the southeast corner of the land, being an area about 120 m long along Grange Road and about 30 m deep. The purpose of the overlay is for the northern extension of the Mornington Peninsula Freeway from Springvale Road through to the proposed Dingley Bypass. There are no plans to construct this extension. If the proposal proceeds and if the overlay area is acquired and construction of the extension starts before the end of the transition period, the owner may lose, in that corner, part of the landscaped mound and some truck spaces. The owner may need to amend the permit to effect an internal reorganisation in that corner. This potential is no reasons to refuse a permit.

1. For the above reasons, the proposal in the permit application is an acceptable planning outcome given the relevant considerations under the scheme. The decision of the Council will be set aside and a permit granted subject to conditions.

• Use for Vehicle store
• Building and works for a Vehicle store
• Reduction in car parking requirements

(a) A 'vehicle' means a vehicle in connection with a goods or passenger transport business. It does not include a car or other commuter vehicle used by a vehicle driver to travel to or from the land.

(b) A 'vehicle space' means a space for the parking or storage of a 'vehicle'.

(c) A 'car space' means a space used by a vehicle driver to park a car or other commuter vehicle.

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 plan prepared by Bell Cochrane & Associates entitled Development Plan drawing no. NS-1219 Revision 0 dated 29 October 2012 received by Kingston City Council on 2 November 2012 but modified to show -
   • (a) The layout of the vehicle accessways and vehicle spaces and the east-north-west-south oriented, or clockwise, vehicle circulation system generally in accordance with the plan prepared by Bell Cochrane & Associates entitled Development Plan drawing no. NS-1219 Revision 1 dated 17 September 2013.
   • (b) The surface material of all crossovers and an arc of at least the first 30 metres of the internal driveways in either direction from Junction Road to be sealed.
   • (c) The surface material of all circulation areas and parking spaces.
   • (d) Provision of internal directional signage for vehicle spaces and car spaces.
   • (e) The location and dimensions of the landscaped buffers in accordance the plans prepared by Tract Consultants Pty Ltd entitled Landscape Concept drawing no. 0313-0365 LDMP02 Revision 02 and Landscape Sections & Design Intent drawing no. 0313-0365 LDMP03 Revision 00 both drawings dated 6 September 2013.
   • (f) An earth bund no less than 4 m high along the south boundary (on both the east and west sides of the vehicle entrance) in accordance with the witness statement prepared by acoustic engineer Mr Neville Goddard dated 9 September 2013 filed in Victorian Civil and Administrative Tribunal Proceeding no. P822/2013.
   • (g) Finished ground levels across the land.
   • (h) Part of the southern accessway at the east end and part of the easternmost north-south accessway, being an area in the south-east corner of the land, set aside for additional landscaped buffer that is not required for vehicle circulation purposes under the revised circulation in the plan referred to in paragraph (a) of this condition.

1. The development as shown on the endorsed plans must not be altered without the prior written consent of the Responsible Authority.

1. Before the development starts, a Landscape Plan prepared by a suitably qualified person to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the Landscape Plan will be endorsed and will form part of the permit. The plan must be drawn to scale with dimensions. The Landscape Plan must be generally in accordance with plans prepared by Tract Consultants Pty Ltd entitled Landscape Concept drawing no. 0313-0365 LDMP02 Revision 02 and Landscape Sections & Design Intent drawing no. 0313-0365 LDMP03 Revision 00 both drawings dated 6 September 2013 and must show -
   • (a) A range of plant types from ground covers to large shrubs and trees, species must comprise a minimum of 80% indigenous coastal species.
   • (b) An associated planting schedule showing the proposed location, species type, mature height and width, pot sizes and number of species to be planted on the site. The schedule must be shown on the plan.
   • (c) The delineation of all proposed landscape buffers, earth-bunds/mounds, retaining walls, fences and other landscape works including areas of cut and fill throughout the development.
   • (d) All existing trees on the site and within three metres to the boundary of the site on adjoining properties, accurately illustrated to represent actual canopy width and labelled with botanical name, height and whether the tree is proposed to be retained or removed.
   • (e) A range of plant types from ground covers to large shrubs and trees.
   • (f) Adequate planting densities.
   • (g) Suitable native medium/large sized (at maturity) canopy trees within the proposed landscape buffers with species chosen to be approved by the Responsible Authority.
   • (h) No less than 10% of all trees provided at a minimum of two metres in height at the time of planting.
   • (i) A weed management program.
   • (j) Effective irrigation or a watering regime during the establishment phase.
   • (k) Earth bunds as shown on the plans prepared by Tract Consultants Pty Ltd referred to in this condition, including an earth bund no less than four metres high along the southern boundary of the site on both the east and west sides of the vehicle entrance.
   • (l) Notes on the landscape plan regarding site preparation, including the removal of all weeds, proposed mulch, soil types and thickness, subsoil preparation and any specific maintenance requirements.
2. Before the use starts or by such later date as is approved by the Responsible Authority in writing, the landscaping works shown on the endorsed Landscape Plan must be carried out and completed to the satisfaction of the Responsible Authority.
3. The landscaping shown on the endorsed plan must be maintained to the satisfaction of the Responsible Authority including replacing any dead, diseased or damaged plants as appropriate.

1. Before the use starts, vehicle crossings must constructed at a 90 degree alignment with the kerb on Junction Road and all internal driveways must align with the existing / proposed vehicle crossing.
2. The vehicle crossing must be constructed to the road and suit the proposed driveway to the satisfaction of the Responsible Authority.
3. All front and side fences must be contained wholly within the title property boundaries of the land.
4. Before the development starts, property boundary, footpath and vehicle crossing levels must be obtained from Kingston City Council's Roads and Drains Department with all levels raised or lowered to the satisfaction of the Responsible Authority.
5. Before the development starts, a Stormwater Management Plan prepared by a suitably qualified person 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 Stormwater Management Plan must show -
   • (a) The stormwater works to the nominated point of discharge.
   • (b) All details of the proposed stormwater works including all existing and proposed features that may have impact (eg trees to be retained, crossings, services, fences, abutting buildings, existing boundary surface levels etc).
   • (c) How unreasonable overflow onto adjacent land will be prevented.
   • (d) Peak stormwater outflow of the land to the Kingston City Council drainage system must be limited to pre-development level outflow of the land.
   • (e) The use of water sensitive urban design principles to improve stormwater runoff quality and which also retards on the land any increase in runoff as a result of the approved development. Methods to achieve this may include the use of an infiltration or bio-retention system, rainwater tanks connected for reuse and a detention system.
6. Before the use starts, the works shown in the approved Stormwater Management Plan must be carried out and completed to the satisfaction of the Responsible Authority and thereafter the system must be maintained to the satisfaction of the Responsible Authority.

1. Every vehicle parked or stored on the land must be registered under Victorian law to drive on a public road and must be parked or stored in connection with a goods or passenger transport business.
2. No more than 196 vehicles (other than cars or other commuter vehicles) may be parked or stored on the land at any one time.
3. Every vehicle must exit a vehicle space in a forwards direction, where practicable, to avoid the use of reversing beepers when departing the land.
4. Every vehicle, after exiting a vehicle space, must turn left and travel north along the accessway adjoining the space, then turn left and travel west along the northern accessway and then turn left and travel south along the western accessway before exiting the land.
5. No machine, item of equipment, storage bin or like item, other than one on or in a vehicle, may be stored on the land.
6. A vehicle carrying any waste or any hazardous material must not be parked or stored on the land.
7. A vehicle must not be parked or stored outside the area for parking or storage shown on the plans endorsed under condition 2.
8. A vehicle must not be repaired or maintained on the land, other than routine daily maintenance (for example, cleaning a windscreen or changing a wheel) or emergency repairs or maintenance.
9. A vehicle must not be refuelled on the land.
10. A vehicle must not be washed on the land.
11. Except with the consent of the Responsible Authority, no vehicle or car may enter or exit the land each on any day between midnight and 4 am, other than a security or emergency vehicle.

1. Before the use starts, a Management Plan to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the Management Plan will be endorsed and will then form part of the permit. The Management Plan must provide for -
   • (a) The security and maintenance of the land.
   • (b) Measures to prevent unreasonable amenity loss to owners or occupiers of surrounding land while the development is being carried out.
   • (c) Measures to control -
     • (i) The unreasonable emission of dust, noise and lighting.
     • (ii) Vehicle movements on the land.
     • (iii) The use of engine brakes and reversing noise/lights.
     • (iv) Access to the land by vehicles and cars.
     • (v) The use of spaces by vehicles and cars.
2. The use must comply with the endorsed Management Plan at all times, unless with the prior written consent of the Responsible Authority.

1. From the day the use starts, an up to date daily register of vehicles parked or stored must be prepared and thereafter maintained to the satisfaction of the Responsible Authority in relation to the use of the land to park or store vehicles in connection with a goods or passenger transport business. The register must include -
   • (a) The vehicle registration number.
   • (b) A description of the vehicle parked or stored on the land.
   • (c) The name of the business with which the vehicle is connected and a brief description of the business' main activity.

1. The amenity of the area must not be detrimentally affected by the use and development, including through any of the following -
   • (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.
2. The maintenance of parking areas, landscaping and the general surrounds as shown on the endorsed plans must be carried out so that the site is kept neat, tidy and clean at all times to the satisfaction of the Responsible Authority.

1. Noise emissions from any plant and equipment must comply with State Environment Protection Policy (Control of Noise from Commerce, Industry and Trade) No. N-1.

1. Before the use starts, a Dust Management Plan to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. The Dust Management Plan must detail measures to ensure the amenity of the area is not unreasonably affected due to the generation of dust from the land. Once approved, the Dust Management Plan will be endorsed and will then form part this permit. The use must be conducted in accordance with the approved Dust Management Plan to the satisfaction of the Responsible Authority.

1. Before the use starts, a Lighting Plan to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the Lighting Plan will be endorsed and will then form part of the permit. The Lighting Plan must address the proposed lighting of the site including ensuring lighting is designed on low level mounts and baffled and located to minimise unreasonable light spill or glare on adjoining land.
2. Before the use starts, the lighting shown on the approved plan must be installed to the satisfaction of the Responsible Authority and thereafter maintained to the satisfaction of the Responsible Authority.

1. Vehicle spaces, car spaces and accessways must be kept available for these purposes at all times and maintained to the satisfaction of the Responsible Authority.
2. The surface of the vehicle spaces, car spaces and accessways must be treated to the satisfaction of the Responsible Authority to prevent dust causing loss of amenity to adjoining and nearby properties and the neighbourhood in accordance with the approved Dust Management Plan.
3. Before the use starts, internal signage must be installed to ensure that a car or other commuter vehicle is moved from a car space to a vehicle space when the vehicle space is not in use.
4. Before the use starts, the areas set aside for vehicle spaces, car spaces and accessways as shown on the endorsed plans must be -
   • (a) Sealed in accordance with condition 2(b) to the satisfaction of the Responsible Authority.
   • (b) Properly formed to such levels that they can be used in accordance with the plans.
   • (c) Surfaced in accordance with the materials shown on the endorsed plans to the satisfaction of the Responsible Authority.
   • (d) Drained to the satisfaction of the Responsible Authority.
   • (e) Line-marked to indicate each car space, vehicle space, all accessways and, the directions in which cars and vehicles are to travel to the satisfaction of the Responsible Authority.

1. The use allowed by this permit is for a specified time, being a period 14 years from the date of the issue of the permit. The use allowed by this permit must cease at the end of this period and must not continue beyond this period except as provided under condition 37.
2. The date being the end of the period under condition 36 by which the use allowed by this permit must cease (the 'use cessation date') may be extended with the consent of the Responsible Authority if a request for extension is made by the owner or occupier of the land. Any request must be made no less than two years before the use cessation date.
3. This permit will expire if one of the following circumstances applies -
   • (a) The development is not started within two years of the date this permit is issued.
   • (b) The development is not completed within three years of the date this permit is issued.
   • (c) The use is not started within three years of the date this permit is issued.

In accordance with section 69 of the Planning and Environment Act 1987, an application may be submitted to the Responsible Authority for an extension of the periods referred to in this condition.

[1] These routes are said to include the proposed Dingley Bypass which is proposed in an east-west alignment about 200 m north of the land.

[4] Andsand Pty Ltd v Kingston CC (No 2) [2009] VCAT 2506.

[5] Plant v Casey CC [2010] VCAT 1699.

[6] Interpretation of Legislation Act 1984 s 37.

[7] The business does not need to be carried out on the land at which a vehicle in a Vehicle store is parked or stored - Casey CC v Mettes [2011] VCAT 2292 at [5]- [8] and Tully v Casey CC [2001] VCAT 1907 at [53].

[8] Tully v Casey CC [2001] VCAT 1907 at [53]; AGL Victoria Pty Ltd v Lockwood [2003] VSC 453 at [69]; Elf Farm Supplies Pty Ltd v Hawkesbury City Council [1999] NSWLEC 261 at [11]- [14].

[9] Daff v Kingston CC [2011] VCAT 255 at [21].

[10] De Hann v Casey CC [2002] VCAT 644 at [31].

[12] Defenders of the South East Green Wedge Inc v Kingston CC [2009] VCAT 526 at [30].

[13] The scheme cl 21.02-3 & cl 21.10-2.

[14] Defenders of the South East Green Wedge Inc v Kingston CC [2009] VCAT 526 at [26].

[15] Defenders of the South East Green Wedge Inc v Kingston CC [2009] VCAT 526 at [33]- [34]; Andsand Pty Ltd v Kingston CC (No 2) [2009] VCAT 2506 at [57].

[17] The scheme cl 22.03-1 & cl 22.03-3.

[18] The scheme cl 21.10-2 & cl 22.04-3.

[19] It is relevant under local policy in the scheme and under section 60(1A)(g) of the Planning and Environment Act 1987.

[25] See eg Map 6 Future Public Spaces in Kingston Green Wedge Plan p 92.

[27] See eg Andsand Pty Ltd v Kingston CC (No 2) [2009] VCAT 2506 at [51].

[28] The unconstructed form of Grange Road running south from Heatherton Road is neither a practicable option nor likely to be an actual option once construction of the Dingley Bypass (between Warrigal Road and Westall Road) starts next year and Grange Road is then closed to Heatherton Road. I rely on Ms Dunstan's statements about the Bypass which the Council did not dispute.

[29] A third lane is a parking lane but my inspections confirm there was no parking in that lane in the vicinity of the intersection given the nearby land uses.

[30] The scheme cl 43.02 schd 5 cl 2.0.

[31] The scheme cl 43.02 schd 5 cl 2.0.

[32] The scheme cl 43.02 schd 5 cl 2.0.

[33] Interpretation of Legislation Act 1984 s 36(3).

[35] Ackerman v Mornington Peninsula SC [2010] VCAT 911 at [28]- [34].