Victorian Civil and Administrative Tribunal|2008-10-21

Henderson & Lodge Pty Ltd v Stonnington CC [2008] VCAT 2106 (21 October 2008)

Stonnington Planning Scheme; Application pursuant to Section 79 of the Planning and Environment Act 1987; Residential 1 Zone; Heritage Overlay; Aquatic Centre; Built form; Residential amenity; Car parking; Traffic; Landscaping; Overlooking; Noise.

Cherilyn Tillman, Tam Vu, Andrew & Kate Ashton, Jack & Paula Hansky, Timothy Clarke, Brian & Hilary Blundell, Graeme Thomas, Liz Crohan, Ronald & Susan Krongold, John Psalidas, Marie-Anne Melidonis, LY and G Kemelman, David Smorgan, J & S Aarons, Philip Munz Elvue Pty Ltd, Denys Bottomley, Peter Stiebel, Matthew Ting, Eve Grimm, Richard & Vera Giles, John Graham, Phillip Starr, Kevin O'Neill Pty Ltd, Lady Barbara Steele, Elaine Bevington, Iain McLaren, Fania & George Griz, Jon Ravech, Barbara Gibson, Bernd Sonntag, Paul Michaels, Albert Benson, Theodore & Miriam Berman, Mary Miller, Jonas Kozeniauskas, Maria & Derek Segan.

Henderson & Lodge Pty Ltd v Stonnington CC [2008] VCAT 2106

The decision of the Responsible Authority is set aside.[1]
In permit application 1072/07 a permit is granted and directed to be issued for the land at 17-23 Heyington Place, Toorak. The permit will allow:
- Demolition, building and works (indoor swimming pool, exercise room, general purpose classroom and associated change rooms, plant and administrative areas and underground car park extension)

in accordance with the endorsed plans and subject to the permit conditions set out in the Appendix.

Mr Christopher Canavan, QC and Mr Phillip Bisset, Barrister instructed by Minter Ellison Lawyers. Written and oral evidence provided by:

Mrs Sylvia Walton, AO Principal of St Catherine's School.
Dr Susan Stevens, Principal Loreto Mandeville Hall Toorak and President Girls' Sport Victoria.
Ms Catherine Heggen, Town Planner of Fulcrum Town Planners Pty Ltd.
Mr Stephen Hunt, Traffic Engineer of Cardno Grogan Richards.
Mr Robert Burton, Acoustic Consultant of Burton Acoustic Group.

Mr Nick Crawford, Solicitor of Best Hooper solicitors for the following respondents: Cherilyn Tillman, Tam Vu, Andrew & Kate Ashton, Jack & Paula Hansky, Timothy Clarke, Brian & Hilary Blundell, Graeme Thomas, Liz Crohan, Ronald & Susan Krongold, John Psalidas, Marie-Anne Melidonis, L and G Kemelman, David Smorgan, J & S Aarons, Philip Munz Elvue Pty Ltd, Denys Bottomley, Peter Stiebel, Matthew Ting, Eve Grimm, Richard & Vera Giles, John Graham, Phillip Starr, Kevin O'Neill Pty Ltd, Lady Barbara Steele, Elaine Bevington, Iain McLaren, Fania & George Griz, Jon Ravech, Barbara Gibson, Bernd Sonntag, Paul Michaels, Albert Benson, Theodore & Miriam Berman, Mary Miller and Jonas Kozeniauskas.

He called written and oral evidence from Ms Sandra Rigo, Town Planner of Hansen Partnership Pty Ltd.

Demolition of the existing early learning centre and construction of a two storey aquatic centre comprising an indoor 25 metre swimming pool, learners pool, exercise room, general purpose classroom and associated change rooms, plant and administrative areas and underground car park extension.

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

Cl. 43.01-1 (demolish, construct a building or construct or carry out works in HO50).

Cl.43.03-1 and 1.0 of Schedule 1 (construct a building or construct or carry out works in IPO1).

We undertook an inspection of the school site and No 15 Landen Place on 14 October 2008. We also inspected the swimming pool complex at Loreto Mandeville Hall Toorak on the same day.

The proposed complex is located in the north west corner of the school site on an area now occupied by an early learning centre and associated playground, tennis court and now filled outdoor swimming pool. St Catherine's School is located on the western side of Heyington Place and is set amongst a residential area containing substantial dwellings of varied styles and ages. The school which caters for junior and secondary school age students has occupied the site since the 1920's and currently has enrolments of around 700 female students.

In summary, application for review P1023/2008 was made in response to the City of Stonnington's failure to grant a planning permit within the prescribed time for development that may be described in brief as an aquatic centre at St Catherine's School Toorak.
Council's officer report recommended approval of the proposed development subject to conditions. Following the lodging of the application for review the Stonnington City Council ("Council") resolved that, had a decision been made, the permit would have been refused.
51 objections were received by Council. The key issues of concern to the objectors summarised in Mr Crawford's submission are as follows:
- the built form, particularly the impact of visual bulk and the potential to overlook into adjoining residential properties;
- the impact of noise emissions on residential amenity
- the use of the Aquatic Centre at times, or in a manner, that adversely affects the amenity of the locality by reason of noise and parking
We discuss these issues on the basis of the following main questions:
- Is the design response appropriate in terms of the scale and bulk context?
- Would the proposed development cause unreasonable amenity impacts on adjacent properties?
- Would the parking and traffic management be appropriate?

Is the urban design response appropriate in terms of the scale and bulk context?

Development at the review site is subject to consideration of the relevant local policies regarding urban design and the character of residential areas in Stonnington. The Incorporated Plan Overlay (IPO) applies to the site. Schedule 1 to the IPO includes decision guidelines with respect to the following:
1. the impact of any buildings or works on the character of the area; .and
2. the appearance and bulk of buildings having regard to the adjoining land, especially the relationship with residential areas.
Clause 22.16 (Institutional Uses) includes an objective that the use and development needs of institutional uses are complementary to the context of surroundings, especially any surrounding residential uses.
While the review site is subject to the heritage overlay, the relevant schedule 50 relates only to paint controls with respect to Sherren House (the boarding house) and the Elaine Haxton mural. Both of these locations are not in the immediate surroundings of the proposed aquatic centre.
Metropolitan policy and local planning policies in the Stonnington Planning Scheme include objectives for a high standard of urban design and for recognition of cultural identity and neighbourhood character.
Discretionary Uses policy at Clause 22.16 of the planning scheme encourages extensions to existing uses to reflect the scale, built form and landscape character of the surrounding residential area in Toorak.
The environs of the review site are occupied by substantial single dwellings and apartment buildings. In more detail the immediate environs include a large scale apartment building at 4 Illawarra Crescent and substantial two storey dwellings including that at 15 Landen Place. While there are attractive street tree and garden plantings, buildings generally dominate the landscape.
The proposed building would not form part of a residential streetscape as there would be no direct frontage to a street. The aquatic centre would be set back from the school boundaries by distances greater than those that would be required by Rescode for a dwelling of similar height above ground level. The height, bulk and scale are generally consistent with, or less than those of other buildings around the school site.
The plans for the proposed development show a modern institutional form with some curved elements and articulation as described in Ms Heggen's evidence statement. Elements of domestic built form such as pitched roofing have not been employed in the proposed design. The proposed colour scheme and the setting down of the building would result in a somewhat recessive appearance compared with that of a number of earlier buildings on the school site and on surrounding land. As set out in previous decisions tendered to the tribunal, buildings that clearly have some institutional appearance (such as schools, nursing homes and child care centres) are included in the character of neighbourhoods within the Residential 1 zone.
Given the proposed built form, setbacks, materials and colours within a varied but substantial built form context, we are of the view that a high standard of urban design has been achieved in the plans for the aquatic centre. We find that the design, and in particular the scale and bulk of the proposed built form, appropriately recognises neighbourhood character.

Would the proposed development cause unreasonable amenity impacts on adjacent properties?

We note that schools and associated uses are part of the fabric of the residential areas and, as submitted by Mr Canavan, are specifically contemplated in residential zones. In this case St Catherine's is a longstanding part of the residential neighbourhood in which it is located. The current use of the review site is for the purpose of a school and there is no proposed increase in student numbers as a result of the development of an aquatic centre.
The need to consider amenity impacts results from the Planning and Environment Act, the Residential 1 zone objectives and decision guidelines and the guidelines of schedule 1 to the IPO. Further the maintenance of reasonable residential amenity is encouraged via relevant State policy, the Municipal Strategic Statement, and local policy including Clause 22.16 (institutional uses) of the Stonnington Planning Scheme.
In particular schedule 1 to the IPO requires consideration of specific amenity matters that include:
- The interface with adjoining land, especially the relationship with residential areas.
- The appearance and bulk of buildings having regard to the adjoining land, especially the relationship with residential areas.
- The effect of any buildings or works on the amenity of the neighbourhood, including the effects of noise, lighting, overshadowing, building bulk and privacy.
The objector properties in Illawarra Crescent and Landen Place would have the most immediate interface with the proposed development. While there were objections from the wider neighbourhood these would appear to concern traffic and parking matters.

Concerns raised with respect to noise may be grouped as follows:
- Noise associated with equipment, including pool filtration and air-conditioning;
- Noise associated with activities e.g. speaker systems, cheering at swimming carnivals, music for aerobics or other activities;
- Construction noise; and
- Noise associated with use of the rear access way.
In his evidence Mr Burton concluded that the major mechanical plant and equipment are located within concrete structures and will easily contain mechanical noise with minor precautions. In cross-examination Mr Crawford asked whether air vents would be necessary for some of the structures that would contain mechanical equipment. Mr Burton stated that there would be some vents on the western side of the building but that noise reduction could easily be achieved. With respect to noise from mechanical equipment Mr Burton was of the view that SEPP N-1 could be met, taking into account the distances to residential properties, the design of the building and the background noise levels. Further, under cross examination he stated that the air-conditioning units serving the rooms at the northern end of the building would each be of a type to serve a two bedroom apartment and are designed to meet SEPP N-1. We note that alternative use of the site for residential use could incorporate a similar number of air conditioners (i.e. air conditioning for equivalent accommodation to three two bedroom flats). Should speakers or music amplifiers be used, resultant noise emissions would be subject to the relevant State Environment Protection Policy. We accept Mr Burton's evidence with respect to mechanical noise, and are of the view that these emissions can be appropriately controlled through conditions of permit and the relevant State Environment Protection Polices for noise emissions.
In his report Mr Burton assumed that the hours of use would be as follows:

It is also proposed to have six special events per year on Saturdays between 12 noon and 6pm with a maximum of 250 persons.

On behalf of objectors, concerns were raised that noise such as cheering or raised voices associated with the aquatic centre could cause disturbance to neighbours. Voice levels are not included for assessment under the State Environment Protection Policies for noise. It was Mr Burton's evidence that shouting outside the pool (if the tilt windows were open and / or people congregated in the colonnade) would be similar to that when the tennis court is used. In referring to AS 1055 -84 Mr Burton concluded that when disturbing noise level is 5dB(A) or less above the background noise level, annoyance is likely to be marginal. Mr Burton surveyed the noise at the edge of the main pool of the Loreto Aquatic Centre during use of the pool by 30 pupils and six staff. He found that noise levels were similar to those recorded inside the St Leonard's Swimming Centre.
On occasion maximum numbers at the centre could reach 250 for a special event. We note however that the relatively small pool capacity (i.e. a 25m pool with 6 lanes) together with the restriction of use to the "school community" is likely to result in more limited numbers most of the time. We also note that staff employed by the school would be on duty at all times when the pool is operating and this reduces the likelihood of excessive vocal noise. In the case of the existing centre at Loreto, the evidence of Dr Stevens was that for the majority of the time the students using the pool are undertaking the purposeful, and in our view less vocal, activities of learning or training.
At section 6.0 of his report, Mr Burton made recommendations with respect to the design of glazing, ceilings/roofs and the closure of automatic lift up doors before 8am and after 6pm. These measures, together with the hours of use and management by school staff, will sufficiently reduce the potential for unreasonable amenity impacts to neighbouring residential properties through raised voices.
At present the area to be occupied by the aquatic centre can be used for outdoor play or sporting activities associated with a school. As stated in Mr Burton's conclusions, the aquatic centre would replace an early learning centre and playground that are fully exposed to the nearby dwellings. During our site inspection we noted some noise from the hard surfaced play areas adjacent to 15 Landen Place. Mr Burton's opinion was that the construction of an enclosed building, designed so that the largest areas of glazing do not face the Landen Place and Illawarra Crescent properties, would be likely to assist in reducing noise impacts on residential neighbours.
We accept Mr Burton's expert recommendations to reduce noise emissions through building design and or materials. These recommendations are set out in paragraph 6.1 of Mr Burton's report and include the closure of the automatic tilt doors between 6pm and 8am, and additional noise insulation through the glazing thicknesses and ceiling/roof treatments recommended by Mr Burton.
As SEPP N-1 must be met, the school would need to ensure that the 'night' noise limits were not exceeded between 6am and 7am. The proposed hours do not conflict with the EPA definition of 'night' except for the period between 6am and 7am. Mr Canavan sought a 6am start time due to the need to start up equipment and prepare the pool prior to use and also to provide sufficient time before school training sessions. We consider that a start time of 6am is appropriate for staff maintaining or preparing the pool and a 7am start for use of the pool given the proximity to neighbouring residences. Mechanical equipment other than the small air conditioners is located on the south eastern end of the building well away from residential properties and any noise from early morning swimmers will be contained within the building.
In summary, we consider that unreasonable noise impacts associated with swimming activities at the aquatic centre would be unlikely given the following:
- the existing amenity context where noise from outdoor school activities can occur;
- the hours of operation;
- the limited number of occasions when special events would be held;
- Mr Burton's design and operational recommendations; and
- the supervised nature of the pool use.
Ms Heggen gave evidence that the rear access way would be used by small vehicles for maintenance purposes. Mr Hunt stated that the lane is used for school maintenance purposes at present. On our inspection we noted that this access way is not one that provides an easy through route for vehicles given the narrow lane width and the limited potential to turn at the north west corner of the site. In these circumstances we consider that no unreasonable noise impact is likely to occur from use of the access way.
The potential for adverse amenity impacts due to construction noise was raised as a concern in the objections. Mr Burton recommended that the noise control guidelines for construction (TG302/92) as issued by the Environment Protection Authority in July 1992 be adopted in full to minimise the impact of construction noise. We accept Mr Burton's recommendation and a condition in relation to these guidelines will be included in the permit.
We agree with Mr Bisset that the use of the term "special events" is not of assistance in framing conditions of permit as it could be seen as events for all school purposes such as fetes and field sport days. We have therefore substituted the term "special aquatic centre events".

Visual Bulk and Appearance in relation to adjoining properties

Some of the objectors' dwellings are located on land adjacent to the part of the review site that would be occupied by the aquatic centre. Those with the most direct abuttal, in terms of potential views from the residences and open spaces, are located at 15 Landen Place and 4 Illawarra Crescent. 8 Landen Place has an interface with the review site, however the outlook towards the proposed centre from this property is limited as the only abuttal is to the north west corner of the review site.
In the northerly direction from the proposed location of the aquatic centre 15 Landen Place has a direct abuttal to the school along the rear boundary. A courtyard garden provides the private open space for this dwelling and has a south and east outlook to the aquatic centre site. There is no direct southern outlook from the main living and dining rooms which have north and west facing windows. In the kitchen and adjacent family/meals area there is however an outlook to the south and east that would include the northern elevation of the proposed complex. The northern two storey wall of the aquatic centre would also be seen from the kitchen, although partially screened by vegetation, and from a south facing bathroom and east facing bedroom window at the upper level. This wall will be set back between 4m and 4.25m for a building height ranging from 7m to 6.8m above existing ground level. These setbacks exceed those that would be required for a dwelling according to Rescode. In the plans the subject wall appears higher than it would be at the aforementioned setbacks. This is because a higher portion of building that would be set back further from the boundary is shown behind the subject wall. The plans show there would be some articulation in the form of windows, sunshades and variation of colours to suggest a "recess" in the appearance of the northern wall.
The outlook to the south and east from 15 Landen Place would be tempered by some existing vegetation including a mature apple tree and some cypress trees along the boundary. Planter boxes along the northern boundary of the subject site are shown on the landscape plan. During our inspection we noted that cypress trees had been successfully grown in a bed approximately 600mm wide along the western boundary of the review site adjacent to the residences at 4 Illawarra Crescent. Although there is a vehicular service lane proposed along the northern side of the complex the total width of the setback would allow for a landscape strip at least 600mm wide. It should be possible, as stated by Ms Heggen, to provide some appropriate screening landscaping along the common boundary subject to consultation with the owners of 15 Landen Place. A landscaping plan showing appropriate screening along the northern property boundary adjacent to 15 Landen Place will be required by permit condition.
The outlook towards a school in an inner suburb of Melbourne could be expected to include some two storey built form. The outlook from the property at 15 Landen Place includes substantial built form at 4 Illawarra Crescent and on the school site at present. The proposed built form would result in a change in outlook to include buildings with a less domestic and more institutional appearance, consistent with educational land use in residential areas. At the height and setbacks proposed, we are satisfied that this element of the design would not cause unreasonable visual bulk impact on 15 Landen Place given the following:
- The articulation and treatment of the wall;
- The existing vegetation;
- The alternative outlooks from 15 Landen Place particularly to the east and north; and
- The landscaping which will be required and in particular shrubs along the northern boundary between the fruit tree on 15 Landen Place and the eastern end of the complex.
The western side of the proposed aquatic centre would be partially set down with respect to ground level apartments at 4 Illawarra Crescent. The proposed development would not be easily seen from ground floor apartment windows due to a cypress hedge viewed by us on site. As agreed by Ms Rigo the outlook from the upper level windows would generally be over the roof of the aquatic centre (and beyond). We find that there would not be unreasonable visual bulk impacts on the apartments at 4 Illawarra Crescent.

The proposed location of the aquatic centre is to the south of 15 Landen Place. As such overshadowing of the open space will not result from the development. There is also no unreasonable overshadowing of the dwellings at 4 Illawarra Crescent.

Upper level windows are proposed on the north side of the aquatic centre. These windows can be screened so that opportunities for unreasonable overlooking of the property at 15 Landen Place are minimised and the Tribunal will include a condition of permit to that effect.

Can traffic associated with the aquatic centre development be readily absorbed into the street network?

We accept Mr Hunt's evidence that traffic associated with the aquatic centre development can be readily absorbed into the capacity of the street network.

Is the proposed aquatic centre a new / separate use or is it ancillary to the school when applying Clause 52.06 car parking rates?

With respect to assessing how many car spaces would be needed for the development, we received a copy of advice prepared by Deacons Lawyers for Stonnington Council. We will now address this advice.
Pursuant to parking requirements at Clause 52.06 of the planning scheme, were the swimming pool seen as a separate new use, car spaces would be required at the rate of 5.6 car spaces to each 100 sqm of site area.
Evidence was given by the principals of St Catherine's and Loreto-Mandeville to the effect that swimming pools are a highly efficient and effective way of providing physical education within girls' schools. In our view this evidence reinforces our understanding that the aquatic centre is integral to the school's education program and would be an adjunct to school activities in a similar manner to an oval, a gym or a tennis court.
Use of the proposed pool would be restricted to "the school community", that is current and former students, their parents and siblings, and staff and this would be enforceable through appropriate permit conditions. The advice from Deacons is that provided a fee is not charged for entry to the pool by persons other than current students then the aquatic centre cannot be characterised as a separate commercial use. We agree that the dominant use of the aquatic centre would be for school purposes with lesser use by parents and past students.
In the circumstances of the proposal, we do not see the pool as a public pool or separate new use and we concur with the advice given to Council by Deacons that the aquatic centre is ancillary to the use of the land for an education centre. As such parking provision will be based on an extension to an existing use as a school.

Would the proposed parking be sufficient in number and reasonably accessible?

The IPO requires consideration of the provision and location of car parking.
In summary Mr Hunt's evidence with respect to parking was as follows:
- The provision of 20 additional spaces in the underground car park, extending it to 68 spaces , will cater for parking demands associated with day to day requirements of the development of the proposed pool complex
- During school hours, when additional parking generated by the pool will largely be minimal, related to 3 extra staff at any one time and members of the school community such as parents or former students who choose to use the facility at this time, the increase in on campus parking will result in an improvement in parking conditions in the immediate area, reducing levels of on street parking. On 4 to 6 occasions per year, special events such as Junior School competition, will result in some additional parking generated by parents attending the event. This is expected to be similar to similar events on the campus when parent attendance is encouraged during school hours.
- During weekend special events, which are proposed up to 6 times per year on Saturday afternoons with a maximum attendance of 250 people, parking for up to 75 cars could be generated. This demand can largely be accommodated in the underground car park, with a deficit of approximately 7 spaces accommodated comfortably either elsewhere on campus or on street in Heyington Place adjacent to the frontage of the school.
Mr Beasley raised the issue of other school events occurring at the same time as an event at the pool. Mr Hunt responded that even if 250 additional people attended the school for special events the relevant parking demand could be accommodated, and largely on site. Mr Hunt responded that when a number of events occurred at the same time it would be a matter for the traffic management plan. Under re-examination he clarified that the focus of this plan would be the aquatic centre rather than the school as a whole and we have included a condition for a car park management plan rather than a traffic management plan.
In response to examination Mr Hunt also stated that advice as to the location of parking for the six special swimming events on Sundays should be included in the traffic management plan.
We note that Mr Hunt has used a conservative rate for parking (on and off the site) given that he assumed all trips would be by vehicle when some would be by bus (including students from other schools if an event were held). He also assumed that parents would come in to park rather than drop off student users of the pool. Even at peak times of 9am and 3pm on weekdays the Cardno-Grogan Richards survey showed that only half of the 118 on-street car parking spaces were occupied.
Given Mr Hunt's conservative evidence with respect to availability of parking, we are satisfied that the car parking associated with the aquatic centre will not cause unreasonable amenity impacts to the neighbourhood provided that access to the underground car park is readily available to users whenever the pool is in use. A car parking management plan will be one of the conditions of permit and will include the availability of access to the underground car park.
With respect to the layout of the underground car park, Mr Hunt suggested that a change to the position of some of the columns would improve the opportunity for vehicle manoeuvres. We consider that this change is positive and will impose a permit condition to this effect.

On behalf of the objectors Mr Crawford submitted a detailed list of additional or altered conditions dealing with a wide range of matters including:
- Different hours of operation
- Swimming pool events - one per tem and notice to residents
- Want the construction management condition retained
- Condition 27 - genuine concern of neighbours
We have made a number of changes to the draft conditions to reflect submissions and discussion about them at the hearing, including in some cases to deal with issues raised by Mr Crawford. In particular we have simplified the numbers permitted in the centre on different days.

Having regard to the above we will direct that a permit issue subject to the conditions set out in the Appendix.

Before the use and/or development start(s), amended plans to the satisfaction of the responsible authority must be submitted to and approved by the responsible authority. When approved, the plans will be endorsed and will then form part of the permit. The plans must be drawn to scale with dimensions and three copies must be provided. The plans must be generally in accordance with the plans submitted with the application but modified to show:
- (a) North facing first floor windows are to be fixed and screened to 1.7 metres above finished floor level to prevent overlooking into 15 Landen Place; and
- (b) Changes to the position of columns in the underground car park (750mm rather than 450mm from the front of the spaces).
The development allowed by this permit and shown on the drawings and/or schedules endorsed to accompany the permit must not be amended without the written consent of the Responsible Authority.
Prior to the commencement of development, a report from a suitably qualified acoustic expert must be submitted to the Responsible Authority for approval. All recommendations regarding appropriate noise attenuation measures contained within this report must be implemented prior to the use of the building to the satisfaction of the Responsible Authority.
Prior to the occupation and use of the aquatic centre the applicant must submit a car parking management plan for car parking associated with the use of the aquatic centre to the Responsible Authority to be approved by the Responsible Authority which must include:
- (a) Details about managing and supervising access to the underground car park for users and visitors of the aquatic centre; and
- (b) Signage required to direct users to the underground car park (or alternative car parking areas) during special aquatic centre events.
Except with the further consent of the Responsible Authority the swimming pool section of the complex may only operate between the following hours:

6.00am to 8.00pm except that between 6am and 7am the pool may only be occupied by staff preparing for the days activities.

6.00am to 9.00pm except that between 6am and 7am the pool may only be occupied by staff preparing for the days activities.

8.00am to 2.00pm (other than for 'special aquatic centre events').

Except with the further consent of the Responsible Authority no persons other than the School Community, and students from other schools in competitions with St Catherine's, may use the swimming pool section of the complex between the hours of 8.00am to 6.00pm , Monday to Friday.

For the purpose of this permit, School Community means current students and current staff (including swimming coaches), past students of St Catherine's, siblings, and parents of currents students).

Except with the further consent of the Responsible Authority between the hours of 6.00pm to 8.00pm (EST) and 6.00pm to 9.00pm (DST) Monday to Friday, a maximum of 50 members of the School Community but not including current students and staff (including swimming coaches) can be present within the swimming pool section of the complex at any one time.
Except with the further consent of the Responsible Authority, at any one time not more than a total of 30 members of the School Community may use the swimming pool section of the complex between 7.00am to 8.00am Monday to Friday.
Except with the further consent of the Responsible Authority, at any one time not more than a total of 50 members of the School Community may use the swimming pool section of the complex on Saturdays and Sundays other than for 'special aquatic centre events'.
Except with the further consent of the Responsible Authority no more than 6 'special aquatic centre events' may take place per calendar year, with a maximum of 250 persons present within the swimming pool at any one time.
Except with the further consent of the Responsible Authority 'special aquatic centre events' must take place on a Saturday between the hours of 12 noon and 6.00pm. Two weeks notice must be provided in writing to the Responsible Authority and posted on the School's website prior to any such event.

A landscape plan must be submitted to and approved in writing by the Responsible Authority demonstrating landscaping works in the vicinity of the aquatic centre complex, and in particular showing appropriate screening along the northern property boundary adjacent to 15 Landen Place including shrubs between the fruit tree on 15 Landen Place and the eastern end of the complex. The landscaping works must be maintained to the satisfaction of the Responsible Authority.
The margins between the swimming complex and the northern and western property boundaries must be fenced / gated to stop students using this space, and it is only to be used as a service land when necessary, to the satisfaction of the Responsible Authority.
The emission of noise or any other emission to the environment derived from activities on the site must conform to standards contained in the appropriate State Environment Protection Policy or Policies, including Noise Control Guideline 12 for Construction (TG302/92) as issued by the Environment Protection Authority in July 1992, to the satisfaction of the Responsible Authority.
No entry fees will be imposed upon any party for the use of the swimming pool or the aquatic centre complex.
Prior to the commencement of the development a report for the legal point of discharge must be obtained from the Council and a drainage design for the development must be prepared by a suitably qualified Engineer. The drainage must be constructed in accordance with the Engineer's design.
This permit will expire if one of the following circumstances applies:
- (a) The development is not started within three years of the date of his permit.
- (b) The development is not completed within four years of the date of this permit.

The Responsible Authority may extend the periods referred to if a request is made in writing before the permit expires or within four years or within three months afterwards.

[1] In accordance with Section 4 (2) (d) of the Victorian Civil and Administrative Tribunal Act 1998 a failure to make a decision is deemed to be a decision to refuse the application.

Environment Act 1987

Henderson & Lodge Pty Ltd v Stonnington CC [2008] VCAT 2106

At a glance

Court

Decision date

Source

Judgment (47 paragraphs)

Henderson & Lodge Pty Ltd v Stonnington CC [2008] VCAT 2106 (21 October 2008)

Parties

Legislation Cited (1)