Hoffman Brickworks Pty Ltd v Moreland CC [2010] VCAT 15

1. Thirty-nine drawings, being sheets TP 00 to TP 38 (all circulated on 28 August 2009) are substituted for the application plans.[1]
2. It is the Order of the Tribunal that a Development Plan be approved based on the 4 drawings - Proposed Development Plan, Proposed Building E Building Envelopes, Open Space Analysis Plan and Overall Landscape Plan - all with a revision date of 30 November 2009, but modified to include any relevant alterations set out in condition 1 of the permit ordered to be issued (see 3 below).
3. It is the Order of the Tribunal that the decision of the Responsible Authority in permit application No. MPS/2008/313 is set aside.[2]

4. A permit is granted and directed to be issued for the land at 72-106 Dawson Street, Brunswick. The permit will allow:
   • Construction of a four storey building for dwellings and development and use of a food and drink premises (Building E),
   • Construction of a 5 storey building for dwellings (Building 6A),
   • Adaptive re-use and development of Building 5 and 6 for dwellings, office and interpretation space,
   • Adaptive re-use, restoration and development of Kilns 2 and 3 for dwellings and interpretation space,
   • Advertising signage, and
   • A reduction in on-site car parking

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

Mr Chris Canavan, QC instructed by J McKenna of Planning & Property Partners Lawyers. They called written and oral evidence from:

• Mr Robert Kelderman, Town Planner of Contour Consultants Australia Pty Ltd;
• Mr Lloyd Elloitt, Town Planner of Urbis Pty Ltd;
• Mr Jim Higgs, Traffic Engineer of TTM Consulting (Vic) Pty Ltd.

Mr Bryce Raworth, Conservation Consultant and Architectural Historian prepared a written evidence statement but with the agreement of Council he was not required to attend the hearing to present his evidence and answer questions.

Mr David Vorchheimer, Solicitor of Russell Kennedy.

Ms Ruth Paterson, Ms Susan Di Ciero, Ms Karen Watson, Mr Justin Hutchinson, Ms Chris Johnston and Ms Kate Sandiford (Save the Brickworks Inc), Mr Paul Roser and Mr David Moloney (National Trust of Australia (Victoria).

Construction of a 4 storey building to contain a food and drink premises and dwellings (Building E), construction of a 5 storey building for dwellings (Building 6A), adaptive reuse of Buildings 5 and 6 for dwellings, office and interpretation space, adaptive reuse and restoration of Kilns 2 and 3 for dwellings and interpretation space, and car parking including a basement carpark.

The approved development plan is to be amended to reflect the changes referred to above.

Section 79 Planning and Environment Act 1987.

Section 149 Planning and Environment Act 1987.

Cl. 32.04-1 (use land for food and drink premises, office and retail use in MU1).

Cl 32.04-5 (construction of two or more dwellings in MUZ).

Cl. 43.01-2 (no permit required in HO as site is listed on Victorian Heritage Register).

Cl. 43.04-1 (any permit must be generally in accordance with the approved development plan and include any specified requirements in the schedule to the DPO3).

Cl. 45.03 (certificate or statement required before a sensitive use commences/or before buildings and works for a sensitive use commences in EAO).

In addition approval is required for an amendment to the approved development plan (latest revision dated 22 February 2008).

Clauses 11, 12, 14, 15.12, 16.02, 17.01, 18, 19.03, 21.05, 22.02, 22.03, 22.10, 22.11, 22.13, 52.05, 52.06, 52.07, 52.34, 55 and 65.

I inspected the site and locality at the conclusion of the hearing and again before finalising these reasons.

The review site forms part of the former Hoffman Brickworks site and is located on the north side of Dawson Street just east of the 'T' intersection with Grantham Street. It is the last major section of the site to be developed and new dwellings including reused industrial buildings are located to the west, north and east and form a 'horseshoe' around the review site. The site contains two historic kilns (Nos 2 and 3), the brick press shed (Building 5), the steam engine house (Building 6) and the former gatehouse building (Building E) which has a permit from Heritage Victoria for its removal.

Land on the south side of Dawson Street is primarily residential although an extensive area of commercial/industrial uses is located further away to the east and west of the review site on the north side of Dawson Street. The site is located within a few hundred metres of the No 55 tram along Grantham Street, approximately 400 metres to Union Square shopping centre, 1 kilometre from Sydney Road, 700 metres from Brunswick train station and close to the western edge of the Brunswick major activity centre which contains education, community, retail, service and other facilities.

What is the hearing about and what are the relevant issues for my consideration?

1. These two applications for review seek approval to alter the manner in which the remaining buildings and land at the former Hoffman Brickworks are used and developed. The review site comprises the historic core of the brickworks and contains Kilns 2 and 3 and the associated chimneys, the chimney to Kiln 1 (the kiln itself has been demolished), the brick press shed which contains remnants of the presses, conveyor belts and hoppers (Building 5), the steam engine house (Building 6), the former gatehouse building which already has a permit for demolition (Building E), together with the open ground between the buildings.
2. The former Hoffman Brickworks is included on the Victorian Heritage Register in recognition of its status as the last remaining nineteenth century 'Hoffman Kilns' in Victoria. The significance of the Hoffman Kilns and recommendations for future management are set out in the 1999 Conservation Management Plan (CMP) and additional Research Papers.[3] Section 4.0 of the CMP includes specific conservation policies for each building and other features on the site.
3. Section 3.3 of the CMP discusses potential uses but these are only suggestions and it is the principles set out in Section 3.3.3 which provide a basis for considering what uses may be appropriate. These include: respect for the historic elements on the site; site limitations; ideas and values of the local community; compatibility with adjoining and surrounding uses; commercial viability (market demand); provision of appropriate infrastructure; physical and functional links; and review of preferred uses and activities as circumstances change.

The Development Plan Overlay and approved development plan

1. The review site is covered by a Development Plan Overlay and an associated Development Plan approved by Council as satisfying Clause 43.04-3 (Sheets 1, 3 and 4 dated 7/12/06 and Sheet 2 dated 22/2/08). That approved plan identifies uses for each of the buildings and areas subject to these two appeals but I agree with Council (see page 9 of the Urban Planning Report 28-10-09) that the proposed built form is generally consistent with the approved Development Plan.
2. Clause 43.04-2 specifies that there are no notification or third party rights of review where an application is generally in accordance with a development plan, but Schedule 3 includes a peculiar decision guideline that states that the Responsible Authority is to consider the views of the community before deciding an application. This appears to undermine the exemption provided at Clause 43.04-2, but because of this decision guideline, I have given members of the community an opportunity to make submissions but not to be parties to the two appeals. The members who took the opportunity to make submissions are set out in the appearance section.
3. Schedule 3 of the Development Plan Overlay (1.0 - Requirements for development plan) requires that:

The development plan must be consistent with the approved 1999 Conservation Management Plan (Helen Lardner Conservation and Design, April 1999) or any relevant permit issued by Heritage Victoria to the satisfaction of the responsible authority.

1. It also requires that the development plan must be generally in accordance with the Development Concept Plan (the version specified or any revised concept plan subsequently approved to the satisfaction of the Responsible Authority). Importantly, the first requirement provides two options - the development plan must be either consistent with the approved CMP or any relevant permit issued by Heritage Victoria.

The role and decisions of Heritage Victoria are fundamental to any use and development on this site

1. The decision by Heritage Victoria to grant a permit on the Friday immediately prior to the first day of hearing significantly shifted the issues in these appeals. Council and community members were unaware of that decision until just before the hearing. There is no doubt in my mind that the CMP is a fundamental document informing all decision making including that by Heritage Victoria. But the way the requirement is written in Schedule 3 to the DPO suggests that once a permit has been granted by Heritage Victoria any future decision making is strongly guided by that permit (hence the reference to the CMP or Heritage Victoria Permit).
2. Having regard to the approval given by Heritage Victoria, it seems to me that what constitutes acceptable built form and the use of buildings has been decided. Both heritage experts (Mr Raworth and Council's heritage advisor) have supported in large measure the form of development approved by Heritage Victoria. Although Council indicated that an appeal had been lodged against the conditions of that approval, I have since been informed (letter from Planning & Property Partners dated 22 December 2009) that the appeal has been withdrawn.
3. Although there is opposition from the community to the proposed change of use of the two kilns from commercial to residential, such change in use only becomes determinative if it adversely affects or undermines the significance of the buildings. It is not about assessing the use of land in the manner normally considered in planning cases. I also note that the site is zoned Mixed Use, which is included in the suite of residential zones in the Victoria Planning Provisions. The use of land for dwellings does not require a permit and I do not accept submissions that changing the use of the kilns to residential is inconsistent with the intent of the Mixed Use Zone.
4. It is an often quoted 'design principle' that built form necessarily follows function. However in the case of such significant heritage assets, it is instead a question of function following form. If Heritage Victoria has signed off on the function (residential use) not adversely impacting on the significant historic built form, then it seems to me that the residential use must be acceptable from that heritage perspective. That is the case despite the CMP including specific conservation policies for Kilns 2 and 3 and Buildings 5 and 6 which would suggest a different approach.
5. Submissions by community members are to a large extent based on opposition to the changes approved by Heritage Victoria just prior to the Tribunal hearing. While the community and Council may not agree with the decision by Heritage Victoria to allow changes to uses and to built form, the Tribunal does not have a statutory role to review that decision. It is also very important to note that although the site is in a Heritage Overlay, Clause 43.01-2 specifically removes the need to obtain a permit for the development of a heritage place which is included on the Victorian Heritage Register.
6. Put in the context of these controls, I consider it would be unreasonable for me to take a different approach to Heritage Victoria given the level of importance of this site, and the role of Heritage Victoria in approving development on this site. I may have taken a different view if Heritage Victoria was not involved in the case, if the DPO3 requirements were worded differently (CMP/HV permit) and I was instead considering the application under the Heritage Overlay provisions.

1. The permit granted by Heritage Victoria also deals with the development of new buildings such as Buildings E and 6A, but at the hearing I expressed concern about the lack of secluded open space and the level of daylight for some units and the position and availability of storage. Mr Kelderman dealt with these internal amenity issues in his evidence and also answered questions from Mr Vorchheimer about these and other planning issues such as the location of waste bins, access and storage areas.
2. The amended plans have included improvements to internal amenity and layout, including additional balconies and changes to the internal layout of a number of units, and I later comment on these in relation to the latest plans.

1. Concerns about the amount and location of car parking always seems to occupy an inordinate amount of time and resources by Council, the community and the Tribunal at appeal hearings. This proposal is no different. Although the usual claim against development proposals is that not enough on-site parking is being provided, it is also the case that some municipalities (such as Melbourne, Port Phillip and Stonnington) are asking for less rather than more parking. Planning policy and broader State Government policy (see for example the Victorian Transport Plan 2008) is unambiguously seeking to lessen dependence on car based travel. Clause 12.01-2 seeks to reduce the number of private motorised trips by concentrating activities that generate high numbers of trips in highly accessible locations. Reducing dependence on motor vehicles has three main components:
   1. Providing very attractive alternative travel modes such as trains, trams and buses.
   2. Locating activities so that there is less need to travel long distances so that walking/cycling become practical and appealing means of movement.
   3. Providing the above are in place, discouraging people from owning motor vehicles by providing fewer opportunities for off-street car parking.
2. In this latest proposal 120 car spaces are being provided (68 within the basement and 52 at ground level). Council is concerned that despite the reduction in dwellings from 90 to 83 insufficient parking is being provided. Assuming 1 space is allocated per dwelling and one per commercial tenancy as suggested by Council's Development Advisor, then 17 spaces remain for other uses and visitors including the interpretation centre in Building 5 and the café in Building E. Council is also concerned that any additional storage areas in the basement or a widening of the pedestrian entrance way to Kiln 3 has the potential to reduce the number of spaces further. I am satisfied that the 120 spaces can be provided and that there will not be any reduction because of further minor changes to the layout. I am also satisfied, based on the evidence of Mr Higgs, that 120 spaces is an adequate number to cater for this development.
3. Council is concerned about existing parking congestion on the roads within the remainder of the site and submits that the development proposed with this application must be self sufficient. I agree with Council staff (see internal memorandum dated 9 December 2009) that sufficient parking is provided for long term use and I also agree that residential visitor parking will peak outside normal business hours and can be shared by both customers and visitors. Although council staff expressed concern about relying on Dawson Street for parking, I consider it highly likely that those café patrons who are driving will, as a first choice, park as close as possible to the café in Dawson Street because of proximity to the café entrance.
4. At the hearing submissions were made opposing ground level parking between Kilns 2 and 3 and a preference given that the area should be set aside as a town square. Whatever the background to the understanding by residents that a town square would be located on that portion of the site, I do note that the approved Development Plan clearly shows at-grade car parking in this location and find this an acceptable outcome.

Amended plans incorporating the changes approved by Heritage Victoria, changes suggested by the Tribunal and proposed permit conditions

1. As already noted, the conditional approval given by Heritage Victoria on the Friday before the hearing in November 2009 significantly altered the context in which the two appeals were heard. Although I substituted amended plans at the commencement of the hearing, those plans did not reflect the changes approved by Heritage Victoria. I was provided with a marked up copy of the approved plans but remained uncertain about what the changes actually meant in terms of built form, car parking, access and related issues. I also considered it unfair that Council had not had an opportunity to fully digest the changes approved by Heritage Victoria. I therefore asked that the permit applicant provide to Council and the Tribunal the following:
   1. An amended Development Plan.
   2. Amended permit plans incorporating:
      • Heritage Victoria changes,
      • open space for south facing units W6005, W6201 & W602,
      • removal of the terrace to W6106,
      • provision of a pedestrian path near the north stairs to Kiln 3,
      • any other additional changes from proposed condition 1'
      • relocation of the large bike store at ground level.
   3. A letter from Heritage Victoria indicating agreement with the revised plans.
2. By letter dated 1 December 2009, the revised plans were submitted to the Tribunal and the Council. The information included amended planning permit application plans, revised development plan (4 sheets), letter from Mr Bryce Raworth providing in-principle support for the amended permit application plans and a letter from Heritage Victoria indicating that the amended permit application plans are in accordance with the conditions of the Heritage Victoria permit.
3. By letter dated 15 December 2009, Council provided comments on the documents submitted on 1 December 2009. Members of the community also provided written comments although they were not invited to do so at the conclusion of the hearing on 24 November 2009.
4. In considering the comments made to the amended plans I again stress that the Tribunal hearing does not provide an opportunity to review the permit issued by Heritage Victoria and that logically, any consideration of use or built form issues must reflect that approval, given that the site is on the Victorian Heritage Register. In reviewing the revised plans I have undertaken my own assessment and have also considered the written comments including those made by Planning & Property Partners in response to Council's comments dated the 15 December 2009.
5. To a large extent I am satisfied that the latest set of permit application plans and the revised development plan (4 sheets) do achieve an acceptable outcome for this very important site. Some dwellings face south, some such as the lower ground floors for the west facing dwellings in Building 6A will have lower light levels than spaces at ground level, and some have bedrooms without direct abuttal to outside walls, but none have such compromised internal amenity that they should be rejected or further modified.
6. In various documents, including the advice from Heritage Victoria, reference is made to 83 dwellings. However this is not the number of dwellings I count on the latest set of plans. I calculate the numbers as follows:
   • Kiln 2 - 14 dwellings
   • Kiln 3 - 12 dwellings
   • Building 6 - 16 dwellings
   • Building 16A - 16 dwellings
   • Building E - 28 dwellings
   • Total 83 Dwellings
7. Mr Canavan's written submission (paragraph 3), the car parking evidence presented by Mr Higgs, and comments by Council on the latest plans all make reference to 83 dwellings. Given that the number of car spaces is a critical issue I consider that the number of dwellings should be reduced to 83 and that the most acceptable way of achieving that is by reducing the number of dwellings in the two kilns. I therefore agree with Council that 6 dwellings in Kilns 2 and 3 should be combined into three larger dwellings (Dwellings K2107 and K2108 combined into one dwelling, Dwellings K3101 and K3112 combined into one dwelling, and Dwellings K3106 and K3107 combined into one dwelling).
8. I do not agree with Council that there should be further changes to Buildings 6, 6A and E for internal amenity reasons. A large storage area has now been provided in the basement but I agree with Planning & Property Partners that a dotted service area should be shown north of Building E pending the preparation and approval of a waste management plan.
9. In my directions I asked that a pedestrian path be provided to the entrance of Kiln 3 and a 1 metre wide path has been shown on the latest plans. Council suggests this should be increased to 3 metres in width. This walkway is the main entrance to Kiln 3 and I agree with Council that it should be widened, but not to 3 metres. In considering what may be an appropriate width I have considered the footpath widths set out in Clause 56.06-8. Although not directly applicable because this is not a subdivision, the suggestion is that footpaths in minor streets have a width of 1.5 metres. I consider that a reasonable width for pedestrian access to 10 dwellings (previously 12) is 1.5 metres and have included a condition to that effect. It may require a minor change to the location of the basement stair at the western end of the car park but that will not impact on an appreciation of the historic structures on the site. Given the scale of the development and of the need to work within the framework of the retained buildings then I consider that the design as now shown on the latest amended plans is acceptable and warrants approval.
10. I lastly want to comment about a concern that the original concept for this site has been progressively watered down and that, in the words of Mr Moloney from the National Trust, the place is at risk of incremental loss. In one sense I agree with him, and it is clear that the site is now very different to how it was when brick making ceased in 1993 or even when the CMP was being prepared in the late 1990's. Having now inspected the site it is apparent that the retention and reuse of these redundant industrial buildings represents a very great challenge, and one that seems to be in a very different league to other historic industrial buildings that have been reused such as, for example, the Hawthorn tram depot or numerous grain silos. While there is always a risk that the remaining buildings (the place) will be lost, I consider that is less likely if an economic or financially viable use is allowed to occupy the buildings. Although that is not something I have specifically assessed, I do note that Section 3.3.3 of the CMP does discuss issues such as commercial viability and highest and best use of the site.

1. In assessing Council's draft permit conditions I have made a number of changes to reflect both submissions and discussion about them at the hearing and subsequent comments on the amended plans.

1. Having regard to the above, I will therefore set aside Council's decision and order that a permit issue and that the development plan be amended to reflect the planning permit.

1. Before the use and development commences, 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 to the Tribunal and marked Updated for Heritage Victoria and VCAT - 25.11.09 but modified to show:
   • (a) A reduction in dwelling numbers to a maximum of 83 (Dwellings K2107 and K2108 combined into one dwelling, Dwellings K3101 and K3112 combined into one dwelling, Dwellings K3106 and K3107 combined into one dwelling).
   • (b) Any changes consistent with the Section 173 Agreement AC514691P Section 2.7.3 relating to Council's return for its financial commitment and contribution to the restoration of Kiln 2.
   • (c) Maximum building heights clearly specified for all buildings in accordance with the approved Development Plan.
   • (d) The pedestrian walkway between car spaces 50 and 51 widened to 1.5 metres with a subsequent relocation of the basement stair at the western end of the car park.
   • (e) Sequential renumbering of ground level car spaces 1 to 52.
   • (f) Any changes necessary for the implementation of the Car Park Management Plan required by condition 29 of the permit.
   • (g) Details of loading and unloading, including loading bay dimensions.
   • (h) Any changes or additions arising from a Public Amenity and Landscape plan in accordance with Condition 4 of this permit.
   • (i) The location of any air-conditioning units and other plant equipment, including any screening measures.
   • (j) Substations located within buildings so that they are not visually dominant from the public realm.
   • (k) Location of mailboxes.
   • (l) A schedule of all proposed exterior decorations, materials, finishes and colours, including colour samples (3 copies in a form that can be endorsed and filed), retaining as much heritage fabric as possible in accordance with the objectives of the Conservation Management Plan 1999 or any Heritage Victoria Permit.
   • (m) The slope of the access way to the basement car park and car parking space design to the satisfaction of the Responsible Authority.
   • (n) The bend in the ramp down to the basement car park with a minimum internal radius along the inner kerb of at least 4 metres.
   • (o) Any additions or alterations arising from an Environmentally Sustainable Development Management Plan in accordance with condition 6 of this permit.
   • (p) Any recommendations for pedestrian movement and accessibility in accordance with condition 8 of this permit.
   • (q) Any recommendations for waste management in accordance with condition 10 of this permit.
2. The use and development as shown on the endorsed plan(s) must not be altered or modified unless with the further written approval of the Responsible Authority.
3. Before the commencement of the development, an agreement/s under Section 173 of the Planning and Environment Act 1987 must be entered into between the owner and the Responsible Authority to the satisfaction of the Responsible Authority including:
   • (a) A comprehensive staged schedule for the restoration, adaptation and re-use of the Kilns and Buildings 5 and 6 and the interpretation plan for the heritage site ensuring that these works occur in advance of or in parallel with the various construction stages of the proposed new buildings so that restoration, adaptation and re-use of the Kilns and Buildings 5 and 6 is completed prior to the completion of those buildings in that particular stage.
   • (b) Prior to the completion of the restoration works for Kiln 2 and at no expense to Council, produce a costed maintenance and management plan for Kiln 2, establish a 'Heritage Maintenance Fund' and set up a board of management (on which Council will be represented) for that fund;
   • (c) That on no less than 4 separate occasions each year (commencing upon completion of the landscape works of the adaptive reuse development of the heritage core and continuing in perpetuity) the car parking area between Kilns 2 and 3 be made available at no cost to the Council or its nominee for pedestrian only public use for formal gatherings and/or cultural activities; and
   • (d) Provide a 20 year lease to Council, on terms to the satisfaction of Council, of the portion of the restored firing chamber of Kiln 2 depicted in cross hatch on Attachment 5 to the 8 December 2003 Council report at a peppercorn rental to be used to house cultural and community activities which lease will form an attachment to the Section 173 agreement.
   • (e) A requirement that the owners pay the costs of the Responsible Authority in negotiation, preparation and lodgement and registration of the agreement.
4. Prior to the commencement of any development works, a Public Amenity and Landscape plan must be submitted to the satisfaction of the Responsible Authority. The plan must be generally in accordance with the 'Overall Landscape Plan' that forms part of the approved Development Plan, and must include pavement treatment that delineates the former location of Kiln 1 as shown on the Development Plan, public facilities including seating, drinking fountains, power supply, lighting, bicycle parking and other similar infrastructure required to support community use, events and heritage interpretation.
5. The works required by the Public Amenity and Landscape Plan for any stage must be completed prior to the occupation of that stage of the development and must be maintained thereafter, at no cost to the Responsible Authority.
6. A suitably qualified environmental engineer or equivalent must prepare and submit an Environmentally Sustainable Development (ESD) Management Plan to the satisfaction of the Responsible Authority. The recommendations of the plan must be incorporated into the design and layout of the development and must be implemented to the satisfaction of the Responsible Authority prior to the occupation of the development. When approved it will be endorsed and form part of the permit.
7. All works must be undertaken in accordance with the endorsed Environmentally Sustainable Development (ESD) Management Plan to the satisfaction of the Responsible Authority. No alterations to the ESD Management Plan may occur without the written consent of the Responsible Authority.
8. Prior to the endorsement of plans, a Pedestrian Movement and Accessibility Plan must be prepared by a suitably qualified access auditor to assess any plans and provide advice/recommendations on pedestrian access and mobility issues to the satisfaction of the Responsible Authority. The Plan must be submitted to and approved by the Responsible Authority. When approved it will be endorsed and form part of the permit.
9. The works required by the Pedestrian Movement and Accessibility Plan must be completed prior to the occupation of the development and must be maintained thereafter, at no cost to the Responsible Authority.
10. A Waste Management Plan, prepared by a suitably qualified person, must be submitted and approved to the satisfaction of the Responsible Authority.
11. When submitted and approved to the satisfaction of the Responsible Authority, the Waste Management Plan and associated notated plans will be endorsed and form part of the permit.
12. The Waste Management Plan approved under this permit must be implemented and complied with at all times to the satisfaction of the Responsible Authority unless with the further written approval of the Responsible Authority.
13. Before the occupation of any stage of the development or the commencement of the use, and at the completion of the building and works, the owner must request the Responsible Authority to inspect the property to determine whether the development complies with the endorsed plans.
14. Prior to the occupation of any stage of the development, a vehicle crossing must be constructed in every location shown on the endorsed plans for that stage to a standard satisfactory to the Responsible Authority.
15. Prior to the occupation of any stage of the development, access to the site, any vehicle crossover and any ancillary road and road drainage works for that stage must be constructed to the satisfaction of the Responsible Authority.
16. Prior to the occupation of any stage of the development, any Council or service authority pole or pit within 1 metre of a proposed vehicle crossing must be relocated or modified at the expense of the permit holder to the satisfaction of the Responsible Authority and the relevant service authority.
17. Every sign shown on the endorsed plans must be maintained in good condition to the satisfaction of the Responsible Authority.
18. The sign(s) approved by this permit must not be animated or contain any flashing light.
19. Air-conditioning and other plant and generator equipment must be screened from the view of adjoining properties and public areas to the satisfaction of the Responsible Authority.
20. The owner and/or occupier must ensure through correct site management practices that mud, dirt or dust is not transferred from the site onto adjoining public roads to the satisfaction of the Responsible Authority. In the event that roads are affected, the owner must upon the direction of the Responsible Authority, take the necessary remedial action, to the satisfaction of the Responsible Authority.
21. The permit holder must take all reasonable steps to prevent the circulation of dust from the building site during construction to adjoining properties to the satisfaction of the Responsible Authority.
22. The area set aside for the parking of vehicles and access lanes in any stage shown on the endorsed plans must to the satisfaction of the Responsible Authority:
    • (a) Be completed prior to the occupation of the applicable stage of development.
    • (b) Be maintained.
    • (c) Be properly formed to such levels that it can be used according to the endorsed plan.
    • (d) Be drained and surfaced.
    • (e) Have the boundaries of all vehicle parking spaces clearly marked on the ground to accord with the endorsed plan, and in accordance with Heritage Permit No P14416.
    • (f) Not be used for any other purpose other than the parking of vehicles, unless otherwise authorised by this permit or the Responsible Authority.
23. The car parking spaces provided on the land must be solely associated with the development allowed by this permit and must not be subdivided or sold separately from the development for any reason without the written consent of the Responsible Authority.
24. The car parking spaces in the area between Kilns 2 and 3 and nominated as spaces 15 to 40 and 46 to 71 on Plan TP08 Proposed Master Plan Ground Floor Plan (marked as Updated for Heritage Victoria and VCAT - 25.11.09) must be held in common ownership and not be individually subdivided, sold or leased to ensure this area is made available for freely accessible visitor car spaces.
25. Prior to the occupation of any stage of the development bicycle parking must be provided for that stage that accords with the specifications in Bicycle Victoria's Bicycle Parking Handbook, to the satisfaction of the Responsible Authority.
26. Except where works are required to obtain a certificate or statement, prior to the commencement of construction or carrying out works pursuant to this permit, or any works associated with a sensitive use, or where no works are proposed, prior to the commencement of the permitted use, either:
    • (a) A Certificate of Environmental Audit for the land must be issued in accordance with Section 53Y of the Environment Protection Act 1970 and provided to the Responsible Authority; or,
    • (b) An Environmental Auditor appointed under Section 53S of the Environment Protection Act 1970 must make a Statement in accordance with Section 53Z of that Act that the environmental conditions of the land are suitable for the use and development that are the subject of this permit and that statement must be provided to the Responsible Authority.
27. Before the development commences, three copies of a Construction Management Plan 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 form part of the permit.
28. The Construction Management Plan approved under this permit must be implemented and complied with at all times to the satisfaction of the Responsible Authority unless with the further written approval of the Responsible Authority.
29. A Car Parking Management Plan (CPMP) must be submitted generally in accordance with the recommendations contained in 'Hoffman Village Development 72-106 Dawson Street, Brunswick, Car Parking Management Plan', prepared by TTM Consulting Pty Ltd and dated 24 November 2009.
30. Following completion of the development, any stormwater treatment devices (eg rain garden, bio-swales etc) must be maintained to ensure water quality discharged from the site complies with the performance standard in the endorsed Environmentally Sustainable Development Management Plan.
31. Prior to the occupation of the development, external lighting on the land must be designed, baffled and located to the satisfaction of the Responsible Authority to prevent any adverse impact on any adjoining property.
32. Prior to the commencement of the development a drainage plan must be submitted to the satisfaction of the Responsible Authority.
33. No more than 30 seats (inclusive of outdoor areas) will be made available to patrons of the café.
34. All stormwater from the land, where it is not collected in rainwater tanks for re-use, must be collected by an underground pipe drain approved by and to the satisfaction of the Responsible Authority.
35. A mailbox, with separate aperture for newspapers and other non-mail articles must be provided for each of the premises. The mailbox dimensions, placement and numbering must comply with the Australia Post - General Post Guide 2004 (Point G4.3) to the satisfaction of the Responsible Authority.
36. Unless with the prior written consent of the Responsible Authority, all telecommunications and power connections (where by means of a cable) and associated infrastructure to the land must be underground to the satisfaction of the Responsible Authority.
37. Unless with the prior written consent of the Responsible Authority, any plumbing pipe, ducting and plant equipment must be concealed from external views. This does not include external guttering or associated rainwater down pipes.
38. This permit will expire if one of the following circumstances applies:
    • (a) the development is not commenced within two (2) years from the date of issue of this permit;
    • (b) the development is not completed within four (4) years from the date of issue of this permit;
    • (c) the use is not commenced within four (4) years from the date of issue 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 three months afterwards.

[1] These were the plans formally substituted at the commencement of the hearing. As a result of directions given at the end of the hearing, a later set of plans marked Updated For Heritage Victoria and VCAT - 25.11.09 are the plans referenced in the permit conditions contained in Appendix A.

[2] 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.

[3] 1999 Conservation Management Hoffman Brickworks Dawson Street, Brunswick (Helen Lardner Conservation and Design, April 1999)

Additional Research Hoffman Brickworks Dawson Street, Brunswick (Helen Lardner Conservation and Design Pty Ltd, January 2000)