1. For the reasons given above, the decision of the responsible authority is varied. A permit is granted subject to conditions.

• Use of land as a marina;
• Construct a building and construct and carry out works; and
• Display a high wall sign.

1. Before the use or development starts, excluding demolition, bulk excavation and site preparation works, amended plans to the satisfaction of the responsible authority must be submitted to and be 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. The plans must generally be in accordance with the plan prepared by Architecture HQ titled TP-01 Revision P7 dated 09.06.2021 and the 'Landscape Plan for VCAT', drawing no. TP01 Rev C dated 03/03/2021, prepared by John Patrick Landscape Architects Pty Ltd but modified to show:

a) A site plan showing the existing conditions; > > b) The use of re-claimed timber façade cladding along the western elevation of Storage B to a minimum height of RL. 9.75; > > c) Distance of the upper level setback from the northern title boundary for Storage A; > > d) Entrance/exit gates shown on the western elevation; > > e) Specifications of the fuel tank including dimensions, capacity and material; > > f) Dimension of separation between Storage Sheds A and C; > > g) A west elevation for Storage Sheds A and B at a scale of 1:50; > > h) The width of the front canopies of Storage Sheds A and B;

1. The southern edge of the 'exit' crossover to achieve a minimum clearance of 2.5 metres from the trunk of the existing tree;

j) All proposed fencing, including dimensions and materials; > > k) Changes to the relevant parking spaces including motor cycle spaces as shown on plan prepared by Cardno, Drawing No. VI90106-TR-SK-0004, Revision 3 and dated 25 November 2021;

1. Two end of trip facilities (showers and change rooms) to be provided in conjunction with the bicycle parking and in a conveniently accessible location;

m) The public pedestrian path; and > > n) Fencing in accordance with conditions 4 to 6.

1. The use and development as shown on the endorsed plan must not be altered or modified without the prior written consent of the responsible authority.
2. Once the development has started, it must be continued and completed to the satisfaction of the responsible authority.

1. Prior to the commencement of boat storage, launching and retrieval operations on the site, fencing must be constructed on the northern and eastern boundary of the area identified as the public pedestrian path on the endorsed plan to ensure that all persons (other than staff involved in boat launching and retrieval operations) are kept out of the area in which those operations are being conducted, to the satisfaction of the responsible authority.
2. The fencing that is constructed along the eastern boundary of the public pedestrian path must:

(a) contain a retractable gate to allow for the boat launching and retrieval operations, to the satisfaction of the responsible authority; and

(b) contain a retractable barrier:

1. that runs perpendicular to the fencing and is located adjacent to Storage Shed D, which prevents pedestrian access to the north while boat launching and/or retrieval operations are occurring; and
2. operates simultaneously with the operation of the retractable gate,

all to the satisfaction of the responsible authority.

1. The fencing may contain separate secured gates to provide pedestrian access for users of the marina, to the satisfaction of the responsible authority.

1. Prior to the commencement of boat storage, launching and retrieval operations on the site, an Operations Management Plan must be prepared, to the satisfaction of the responsible authority, in which must be included standard operating procedures which must be followed including with respect to the:

a) delivery of boats for storage, and removal boats from storage, on the site; > > b) delivery of fuel and waste collection; > > c) launching and retrieval of boats; and > > d) operation of the retractable fence at the eastern end of the site during boat launching and retrieval operations.

1. Except with the prior written consent of the responsible authority, the use authorised by this permit must only operate between 6.00am and 8.00pm seven days a week.
2. Only one boat per half an hour may be launched or retrieved between 6.00am and 7.00am on any day.

1. The amenity of the area must not be detrimentally affected by the use, including through the:

a) Transport of boats, 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; and > > d) Presence of vermin,

1. Concurrent with the endorsement of plans, the Acoustic Report prepared by Renzo Tonin and Associates dated 3 March 2021, must be approved by the responsible authority. Noise attenuation measures must be undertaken in accordance with the report, to the satisfaction of the responsible authority.
2. The noise generated by the use and development must at all times comply with the requirements of the EPA Publication 1826 'Noise Limit and Assessment Protocol for the Control of Noise from Commercial, Industrial and Trade Premises and Entertainment Venues'.

Department of Environment, Land, Water and Planning (DELWP) - Port Phillip Region

1. The works are to be carried out generally in accordance with plans titled:

a) 'Proposed Planning Set', drawing no. TP-01 Rev P7 dated 09.06.2021, prepared by Architecture HQ; and > > b) 'Landscape Plan for VCAT', drawing no. TP01 Rev C dated 03/03/2021, prepared by John Patrick Landscape Architects Pty Ltd.

2. Any modification to the works proposed will require further approval by the Regional Director, Port Phillip Region, Department of Environment, Land, Water and Planning (DELWP).
3. Prior to works commencing, the applicant must submit detailed design/engineering plans to the satisfaction of DELWP for the land reclamation, wharf, seawall and stormwater system. These plans shall include finished site levels and plan for sea level rise of not less than 0.8m by 2100.
4. Prior to works commencing, the applicant must submit detailed design plans to the satisfaction of DELWP for the fuel storage and delivery system and include a spill management plan.
5. Prior to works commencing, a construction environmental management plan must be prepared to the satisfaction of Parks Victoria.
6. A works approval from Parks Victoria must be obtained prior to the commencement of works.
7. Prior to commencement of works on the pontoon, the applicant must enter into a seabed lease for the pontoon with Parks Victoria, pursuant to the Crown Land (Reserves) Act 1978.
8. All planting of vegetation within the coastal Crown land must utilise indigenous species.
9. Any clearing or construction activity associated with the works, should be carried out in accordance with the with EPA Publication No. 275 Construction Techniques for Sediment Pollution Control (May 1991).
10. The construction site must be managed in accordance with EPA Publication No. 981 Reducing Stormwater Pollution from Construction Sites (May 2005).
11. Construction equipment, building materials, refuse and site run-off must be contained and controlled and not permitted to impact on the beach or enter Port Phillip Bay.
12. All works must be completed and maintained to the satisfaction of Parks Victoria.

1. Concurrent with the endorsement of plans, a materials and finishes schedule must be submitted to and approved by the responsible authority. The schedule must:

a) Illustrate the location and type of all external materials and finishes on elevations in colour and at an appropriate scale. > > b) Be accompanied by a printed physical samples schedule of all materials and finishes with clear coding linking back to the elevations.

All materials and finishes must be in accordance with the schedule, to the satisfaction of the responsible authority.

1. All finishes and surfaces of all external buildings and works, including materials and colours, must be in conformity with the approved plans, to the satisfaction of the responsible authority.

1. Concurrent with the endorsement of plans, a detailed landscape and public realm plan prepared by a suitably qualified landscape architect must be submitted to and approved by the responsible authority. The plan must be generally in accordance with the plan prepared by John Patrick Landscape Architects Pty Ltd dated 3 March 2021 but modified to show:

a) Any changes required by condition 1 of this permit; > > b) A survey (including botanical names) of all existing vegetation to be retained and/or removed. > > c) Details of all surface finishes including pathways, driveways, patio or decked areas. > > d) A planting schedule of all proposed trees, shrubs and ground covers, including botanical names, common names, pot sizes, sizes at maturity, and quantities of each plant. > > e) Urban design elements including, but not limited to, paving, lighting, seating and public art. > > f) Clear demarcation of public realm and private spaces, including arrangements for pedestrian, bicycle and vehicular circulation. > > g) How the project responds to water sensitive urban design principles, including how storm water will be mitigated, captured, cleaned and stored for onsite use and the location and type of irrigation systems to be used including the location of any rainwater tanks to be used for irrigation.

2. Before the use starts, the landscaping works as shown on the endorsed plans must be completed and thereafter must be maintained, including the replacement of dead, damaged or diseased plants, to the satisfaction of the responsible authority.

1. Before the development starts, excluding demolition, bulk excavation and site preparation works, a Waste/Recycling Management Plan (WMP) must be submitted to and approved by the responsible authority. The WMP must detail waste storage and collection arrangements. Waste storage and collection must be undertaken in accordance with the endorsed WMP. Waste storage and collection arrangements must not be altered without the written consent of the responsible authority. The WMP must address:

a) How the collection of refuse and recycling material will be managed. > > b) What will be the frequency for the removal of such refuse and recycling materials. > > c) How it is intended to control the emission of odour caused by such refuse and recycling material when it is being stored within the site. > > d) Where such refuse and recycling will be stored within the site. > > e) That the bin storage areas are sufficient to cater for the amount of waste that will be produced. > > f) What type of bins will be used on the site. > > g) Where these bins will be stored including details of screening and ventilation. > > h) Who will be responsible for taking bins in and out for collection, and where this will occur.

1. How recycling materials will be dealt with and collected.

j) Hours of bin collection not being outside the hours of: > > * 7:00 am to 8:00 pm Monday to Saturday; and > * 9:00 am to 8:00 pm Sunday and public holidays. > > k) Access routes for private waste collection vehicles that do not rely on reversing movements, if private waste collection is utilised.

1. Compaction of refuse and the breaking up of bottles not occurring whilst the collection vehicle is standing stationary at or near the site.

1. Before the development starts, including demolition, bulk excavation and site preparation works, a Demolition and Construction Management Plan must be submitted to and approved by the responsible authority. This management plan must be prepared in accordance with the relevant guidelines and is to consider the following:

a) Hours of operation. > > b) Dust management. > > c) Parking and traffic movement of all workers' vehicles and construction vehicles. > > d) Works timetable. > > e) Any impacts upon adjacent roads and pedestrian walkways and providing for adequate movement and circulation of vehicles and pedestrians adjacent to the land during the construction phase. > > f) Access routes for construction vehicles. > > g) Proposed parking locations for construction vehicles and construction workers' vehicles. > > h) Temporary fencing works.

1. Number of workers expected to work on the site at any time.

j) Methods of limiting escape of dust and litter from the site. > > k) Graffiti management.

2. All demolition and construction works must be undertaken in accordance with the demolition and construction management plan to the satisfaction of the responsible authority.
3. Before the development starts, including demolition, bulk excavation and site preparation works, a secure fence must be provided around the perimeter of the land to prevent access to the land by unauthorised persons. This fence must be maintained for the duration of the construction and demolition, be a minimum height of 1.5 metres (or such alternative height as is approved in writing by the responsible authority, and be constructed to the satisfaction of the responsible authority. The gate or opening to the fence must be securely locked at all times when work is not being undertaken on the land.

1. The site must be connected to a legal point of drainage discharge to the satisfaction of the responsible authority.

1. Before the use starts, the existing vehicle crossings on Nelson Place that are no longer required must be removed and the footpath, kerb and channel reinstated and made good to the satisfaction of the responsible authority.
2. Any vehicle crossings must be constructed in the location shown on the endorsed plan to a standard satisfactory to the responsible authority. The relocation of any services including electricity poles, drainage pits, Telstra pits, fire hydrants and the like must be at the expense of the owner and approved by the appropriate authority prior to undertaking such works.
3. If the nature strip is damaged during construction of the development approved or during the construction of any services, it must be reinstated and made good, (including by the planting of grass) at the cost of the owner to the satisfaction of the responsible authority.
4. The Bay Trail pavement is to be painted green in the vicinity of the crossover to the satisfaction of the responsible authority.

1. Before the use starts, a public safety management plan to the satisfaction of the responsible authority must be prepared and approved. The public safety management plan must describe all measures needed to ensure safe pedestrian access from Nelson Place and along the foreshore walkway as shown on the endorsed plans The public safety management plan must describe all measures that will be employed to manage the risk to the general public using the publicly accessible parts of the site, including:

a) a controller/spotter must be available at all times to ensure there is no public safety risk to pedestrians using the foreshore walkway while the use is operating; > > b) measures to manage the risks arising from the operation of the fork lift; > > c) signage and lighting; and > > d) line-marking.

After the public safety management plan is approved, it will be endorsed and form part of this permit.

1. All existing vegetation shown on the endorsed plans as being retained must be suitably marked before any development starts and that vegetation must not be removed, destroyed or lopped without the written consent of the responsible authority.

1. Before the development starts, excluding demolition, bulk excavation and site preparation works, the following provisions relating to the protection of existing street trees must be undertaken to the satisfaction of the responsible authority:

a) A suitable Tree Protection Zone of 2 metre radius with barrier fence must be established around the street tree/s on the Nelson Place frontage. > > b) The Tree Protection Zone must be enclosed using a 2 metre high temporary cyclone fence or similar, which must remain in place through all stages of the development. This fence must not enclose the footpath which must be kept clear for pedestrian access and a sign must be erected on the fence informing that the fence is a 'Tree Protection Zone'. > > c) The area within the Tree Protection Zone must not be disturbed by any means (including parking of vehicles or storage of plant & equipment, materials, soil or waste).

No excavation is allowed within the Tree Protection Zone except with the prior written consent of the responsible authority and under the supervision of a qualified arborist.

1. Bicycle parking must be provided and located in accordance with the approved plans to the satisfaction of the responsible authority.
2. Prior to the occupation of the buildings hereby permitted, areas set aside for parked vehicles and access lanes as shown on the endorsed plans must, to the satisfaction of the responsible authority, be:

a) Constructed; > > b) Properly formed to such levels that they can be used in accordance with the plans; > > c) Surfaced with an all-weather seal coat; and > > d) Drained and maintained.

3. Parking areas and access lanes must be kept available for these purposes at all times.

1. Boats and other vehicles must only be washed in the boat washing bay.

1. The area set aside for the loading and unloading of vehicles or boats must not be used for any other purpose.
2. The loading and unloading of vehicles or boats, and the delivery of goods to and from the land, must at all times be carried out entirely within the site and be so conducted so as to cause minimum interference with other vehicular traffic.

1. The owner must ensure that any mud, crushed rock or other debris transported from the site to public roads is immediately removed to the satisfaction of the responsible authority.

1. The site must be kept in an ordered and tidy state and its appearance must not prejudicially affect the amenity of the area.

1. Any security alarm or similar device installed must be of a silent type.

a) The development is not commenced within two years of the date of this permit; > > b) The development is not completed within four years of the date of this permit; or > > c) The use is not commenced within four years of the date of this permit.

Pursuant to Section 69 of the Planning and Environment Act 1987, the responsible authority may extend:

a) The commencement date referred to if a request is made in writing before the permit expires or within six months afterwards.

b) The completion date referred to if a request is made in writing within twelve months after the permit expires and the development started lawfully before the permit expired.

[1] The submissions and evidence of the parties, any supporting exhibits given at the hearing, and the statements of grounds filed; have all been considered in the determination of the proceeding. In accordance with the practice of the Tribunal, not all of this material will be cited or referred to in these reasons.

[3] Nearmap image dated 17 April 2022 and has the boundary type of 'Property' ticked.

[5] Further submissions on behalf of a Delegate for the Minister for Planning dated 8 November 2021 at [14].

[6] Pursuant to condition 13 of that approval, the consent will expire if the works are not completed within two years of the date of issue, unless extended by the Regional Director, Port Phillip Region, Department of Environment, Land, Water and Planning.

[9] Clause 4.0 of Schedule 4 to the SUZ.

[10] [2001] VSC 426.

[11] [2019] VCAT 493 at Appendix A, Opinion on Question of Law.

[12] [2019] VCAT 1689.

[15] Clauses 13.07-1L, 15.03-1L, 18.02-6L-02 and 19.02-6L of the Scheme.

[17] Department of Environment, Land, Water and Planning, 2020.

[18] Heritage Council of Victoria Victorian Heritage Database, https://vhd.heritagecouncil.vic.gov.au/places/12608 retrieved 26 November 2021.

[19] We observe that the minutes of the Ordinary Council Meeting of the Council held on 25 June 2019 stated that:

Heritage Victoria has advised DELWP [Department of Environment Land Water and Planning] that no Heritage Act consent is required for the buildings and works on the above water area of the site and that no further heritage consent is required for the seawall reclamation area unless excavation of the seabed is proposed.

According to the DELWP officer, no seabed excavation is proposed. The pontoon appears to be a floating structure and the reclamation works to create the new sea wall do not involve excavation but filling of land.

Council's Heritage Adviser raised concerns that there appears to be a lack of assessment of the appropriateness of the proposal having regard to the heritage significance of Knights Slipway. Heritage Victoria is the Responsible Authority in this regard and have raised no concerns with the proposal.

[20] Nearmap image of a Drydock facility in Queenscliff, showing the provision of a public pedestrian path at the water's edge. The image also shows the gates which are used to ensure the public are not in the vicinity of the forklift when in operation (note the boat and forklift accessing the work in the centre of the image). Nearmap image, dated Wednesday 6 October 2021, retrieved 26 November 2021. http://maps.au.nearmap.com/