[2005] VCAT 1145

A permit is granted and directed to be issued in relation to Permit Application No. KP277/02, for the land at 683-687 Clayton Road, Clayton South. The permit will allow:

Development and use of the land for the purpose of a concrete batching plant, in accordance with the endorsed plans.

1 The use of the land for a concrete batching plant must cease 15 years from the date of issue of this permit. This period may be extended by the Responsible Authority for a further stipulated period or periods upon written application being made before or within three months after the expiry date and subject to the Responsible Authority being satisfied that continued operation for the permitted purpose will not prejudice the implementation of any open space, or allied recreational objective for the Sandbelt Open Space Project Precinct in operation under the Planning Scheme at the time.

2 Before any development starts the permit applicant must prepare and enter into an agreement with the Responsible Authority under Section 173 of the Planning and Environment Act 1987. The agreement must be registered on title and the permit applicant must pay the costs associated with its preparation and execution, including the Responsible Authority's legal costs in reviewing the agreement. The agreement must provide that except with the written consent of the Responsible Authority, the above ground silo structures must be removed and the below ground storage infrastructure must be filled in or otherwise made good to the satisfaction of the Responsible Authority and at the cost of the landowner, within 12 months of the use ceasing or such longer period which the Responsible Authority may conditionally approve.

3 Before the development starts amended plans to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the plans will be endorsed as evidence of their approval. 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)

The four storage silos relocated to the rear of the site, with the loading area located on the northern side of the silos, as depicted on the Ratio Consultants plan dated April 2005 and substituted by the Tribunal in Application for Review P1565/2004.

(b)

The total height of the storage silos not exceeding 58m Australian Height Datum.

(c)

Full details of the elevations of the proposed structures.

(d)

The site constructed with an all weather seal coat with appropriate drainage that does not enable contaminated water to encroach on the landscaped areas.

(e)

The provision of a 2.65m high colour bond fence along the entire length of the southern boundary of the site and on the inside of the landscape buffers.

(f)

Crossover to Victory Road that accommodate the swept path template for B Double trucks depicted on the Ratio Consultants plan dated 02/05/05 appended to Russell Fairlie's report of the same date.

(g)

A schedule of all external materials and finishes (including colour and material samples of the proposed structures). The proposed structures to be painted in muted tones.

(h)

Details outlining all proposed business signage including directional signs identifying the car parking area and directional signs indicating the one-way traffic movement into and out of the site.

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

5 Once the development and/or use has started, it must be completed and/or continued to the satisfaction of the Responsible Authority.

6 Before the use and development starts, a landscape plan, prepared by a suitably qualified and experienced person or firm, must be submitted to and approved by the Responsible Authority. When approved, the landscape plan will be endorsed as evidence of its approval. The plan must be drawn to scale with dimensions and three copies must be provided. The plan must be generally in accordance with the John Patrick Pty Ltd plan dated 22.04.05 but amended to show:

(a)

A soil preparation, mulching, establishment irrigation and establishment weeding and maintenance program.

(b)

An expansion of the landscaped area at the north-east corner of the site to create a triangular shaped bed between the Clayton Road access and more easterly, Victory Road access. Such landscaping to be backed by a colorbond fence to the south-west.

7 Before the use commences (or by such later date as may be approved by the Responsible Authority in writing), the landscaping works shown on the endorsed landscape plan must be carried out and completed to the satisfaction of the Responsible Authority.

8 After installation, the landscaping shown on the endorsed landscape plan must be maintained and where necessary renewed and kept free of litter to the satisfaction of the Responsible Authority.

9 The use must operate only between the hours of 5.00 am - 5.00 pm, Monday to Friday, 5.00 am - 1.00 pm Saturday and 9.00 am - 1.00 pm on Anzac Day and Good Friday. Where there is an urgent demand for concrete, the use may operate outside of these times without the further written consent of the Responsible Authority, on no more than 16 occasions per year. Any operation between 5.00 am and 7.00 am must be limited to low noise generating activities and without the use of front end loaders, having regard to the more stringent night-time noise limits under State Environment Protection Policy N-1.

10 Before the use starts, all fencing shown on the endorsed plans must be erected to the satisfaction of the Responsible Authority and at the permit applicant's own cost.

11 A sign(s), directing drivers to the areas set aside for car parking, must be located and maintained at all times to the satisfaction of the Responsible Authority. The sign must not exceed 0.3 sq m.

12 Except with the written consent of the Responsible Authority, construction works must only be carried out between 7.00 am - 7.00 pm Monday - Friday (excluding public holidays) and 9.00 am - 6.00 pm Saturday and public holidays. No works are to be carried out on Sundays, Anzac Day, Christmas Day or Good Friday.

13 The amenity of the area must not be detrimentally affected by the use or development:

(a)

By the transport of materials, goods or commodities to or from the land;

(b)

By the appearance of any stored goods or materials;

(c)

By the emission of noise, artificial light, vibration, odours, fumes, smoke, vapour, steam, soot, ash, dust, waste water, waste products, grit or oil;

(d)

By the presence of vermin; or

(e)

In any other way.

14 Before the use starts, a concrete paved washing bay must be provided within the site for the washing down of vehicles. The washing bay must be constructed so that all waste water is drained to an outlet point and then, from this collection area, discharged to an approved point, to the satisfaction of the Responsible Authority.

15 The loading and unloading of vehicles and the delivery of goods must at all times be undertaken within the boundaries of the site, to the satisfaction of the Responsible Authority.

16 All external lights must be of a limited intensity and baffled to ensure to the satisfaction of the Responsible Authority, that no nuisance is caused due to direct light or glare emitted outside the site.

17 Noise levels associated with the use and development must at all times comply with State Environment Protection Policy (Control of Noise from Industry, Commerce and Trade) No. N-1.

18 All recommendations noted in the report prepared by Robert Burton of Burton Acoustics Group, dated 29 April 2005, must be implemented to the satisfaction of the Responsible Authority.

19 Before the development starts, a drainage plan, prepared by a suitably qualified person, must be submitted to and approved by the Responsible Authority. The applicant must consult Council's Development Approvals Engineer before submitting the plan. The stormwater drainage plan must:

(a)

Include details of how stormwater will be retained and suitably treated on the site;

(b)

Include details of how water sensitive urban design principles (including water re-use) will be employed to reduce stormwater runoff and improve discharge quality;

(c)

Show the stormwater discharge from the development to the nominated point; and

(d)

Show all existing and proposed features that may affect drainage (eg trees to be retained or planted, crossings, services, fences, abutting buildings, existing boundary surface levels, etc).

20 Stormwater drainage of the site must be provided so as to prevent any overflows onto adjacent properties or streets and be in accordance with the approved drainage plan. Provision must be made for the drainage of the site including landscaped and pavement areas all to the satisfaction of the Responsible Authority.

21 Before the use starts, the areas set aside for the parking of vehicles, loading bays, access lanes, all new vehicle crossovers and paths as shown on the endorsed plans must be:

(a)

Properly formed to such levels that the car parking areas can be used in accordance with the plans;

(b)

Surfaced with an all weather coloured concrete seal coat;

(c)

Drained and maintained; and

(d)

Line-marked to indicate each car space, loading bays, access lanes and paths and if necessary, the direction in which vehicles are to travel

to the satisfaction of the Responsible Authority.

22 At the expiration of 12 months from the date of commencement of the use, the permit holder, in consultation with the Responsible Authority, must review the vehicle access arrangements to and from the site and implement any recommendations arising from that review.

23 Parking areas and access lanes must be kept available for these purposes at all times and maintained to the satisfaction of the Responsible Authority.

24 Before any works start, the applicant must apply for and be issued with a Works Approval from the Environment Protection Authority.

25 Before the use commences, three copies of an Environment Management Plan, approved by the Environment Protection Authority, must be submitted to and approved by the Responsible Authority. When approved, the plan will be endorsed and will then form part of the permit. The plan must address the following matters:

(a)

The treatment and disposal of solid and liquid wastes;

(b)

The control of contaminated stormwater discharges;

(c)

The control of noise;

(d)

Dust minimisation measures;

(e)

Waste minimisation strategies;

(f)

Pollution prevention measures; and

(g)

Protocols for emergency situations.

26 The use must, at all times, comply with the Environment Management Plan.

27 The Environment Management Plan must be reviewed and evaluated annually to ensure that best practice is maintained.

28 This permit will expire if:

(a)

The development does not start within two (2) years of the date of this permit; or

(b)

The development is not completed and the use started within two (2) years of the commencement of works.

Before the permit expires or within three (3) months afterwards, the owner or occupier of the land may in writing request the Responsible Authority to extend the expiry date.

Mr Phillip Barton of Counsel, instructed by Lewenberg and Lewenberg Solicitors. He called the following persons to give evidence:

• Mr David Crowder, Town Planner with Ratio Consultants;

• Mr Andrew Clarke, Town Planner with Matrix Planning;

• Ms Lorraine Nadebaum, Landscape Architect and Town Planner with John Patrick Landscape Consultants;

• Mr Robert Burton, Acoustic Consultant with Burton Acoustic Group; and

• A traffic engineering report of Mr Russell Fairlie of Ratio Consultants was tendered in evidence. With consent of the parties Mr Fairlie was not required to be called for cross-examination.

1 This was an application under Section 79 of the Planning and Environment Act 1987 (the Act) to review Kingston City Council's failure to grant a permit within the prescribed time to develop and use land zoned Special Use - 2 Extractive Industry, for the purpose of a concrete batching plant.

2 The land is located at the south-west corner of Victory and Clayton Roads in Clayton South and is therefore within the Sandbelt Open Space Project Policy Area described at Clause 22.03 of the Kingston Planning Scheme. More particularly it is located within the Enterprise Sites Policy Area described at Clause 22.07 of the Scheme.

3 The land is abutted to the north, east and west by extractive industrial sites at various stages of extraction, landfill and/or reclamation. This includes an area currently undergoing reclamation on the opposite corner of Victory Road and Clayton Road which is within a Public Park and Recreation Zone and which is to revert to the Kingston Council following acceptance of its rehabilitation. To the west of the reclaimed land is the Baxter Tip, including a presently under construction, materials recycling facility, recently approved by the Responsible Authority.

4 Land immediately to the south of the subject site and facing Clayton Road is used for egg production and includes layer sheds, feed silos and, to the front of the site, a substantial caretaker's dwelling. Further south on Clayton Road there is a mix of uses including a reception centre, showrooms and a recently extended panel beating operation.

5 By the time the hearing commenced the principal issue in contention was the appropriateness of the proposed use, having regard to the long-term strategic planning outcomes sought for the Sandbelt Precinct within which the site is located and which now sits outside of the proclaimed Urban Growth Boundary. The Sandbelt Open Space Project provides for a linear park to extend, in effect, along the Urban Growth Boundary interface with the Sandbelt Extraction Area. This linear space is described as a core open space parkland initiative with other reclaimed sites to be developed for various open space and allied recreational uses.

6 An important consideration in this proceeding was whether or to what degree the strategic planning considerations could be distinguished from those discussed by the Tribunal, constituted by Deputy President Gibson and Member Naylor, in Doncaster Road Property Partnership v Manningham City Council [2004] VCAT 2445 (8 December 2004).

7 What was not in issue by the time of the hearing and following the Tribunal's amendment of the permit application, in terms of operating hours and site layout, were the issues of noise and vehicular access to the site via Victory Road.

8 Despite the amended plans, some residual concerns about the visual appearance of the development remained and were raised by the Responsible Authority. In particular, the Responsible Authority was concerned about the extent to which the appearance of such a facility would detract from the strategic objectives for development to be of a low profile and density, incorporating sensitive landscape treatments to complement the emerging surrounding landscape character.

9 Following the hearing the Tribunal's decision and reasons for its decision were given orally. In summary the Tribunal held in relation to traffic access and noise that the evidence of Messrs Burton and Fairlie should be accepted subject to their suggestions for amendments being incorporated as conditions of the permit.

10 In relation to the matter of 5.00 am commencement times - a matter that was raised in the course of the hearing - Mr Burton's viva voce evidence was persuasive. In effect it was his evidence that provided operation between 5 am and 7 am was maintained at a low key level, with a reduced batch rate, and without the use of front-end loaders, that noise levels could be kept within the limits set for night-time use under State Environment Protection Policy N-1. A proviso to this was that Mr Burton's recommendations in relation to acoustic shielding were also put into effect.

11 In relation to the more critical strategic planning issues raised by this proceeding I am firstly not persuaded that this is a case that could be described as being on all fours with the Doncaster Road case. I accept that the Sandbelt Precinct and its future use for landfill and later rehabilitation for parkland and allied recreational uses is an important strategic planning issue, supported by State and Local Policy and deserving of great weight. However, unlike in the Doncaster Road case, I am not persuaded that there is the same clarity of outcome or timing imperative - in terms of sending an appropriate message to other land owners and users - as there was in Doncaster Road.

12 The Policy Framework applicable to the subject proposal is far more receptive to interim arrangements, having regard to the extent and nature of change and the necessary time scales envisaged for this precinct. I am also not persuaded that the proposal at this stage in the Sandbelt's redevelopment would compromise the precinct's future progress towards its ultimate desired outcome.

13 In a nutshell, I consider the proposal to be an appropriate interim arrangement that takes advantage of the site's sand extraction location and good road access to areas undergoing development at the urban fringe.

14 I also consider that the provision for landscaping, provided a more generous provision is made at the critical front north-eastern corner, is consistent with the policy outcomes and is unlikely to be compromised should the use cease due to it being held to be no longer compatible with the prevailing policy direction.

15 I am also persuaded that as an interim measure the proposal would not compromise other development that may be able to be said to be more consistent with the Enterprise Site's Policy. This is due to the significant setting back of the silo from Clayton Road which, for most purposes, will be screened by the front and side boundary landscaping.

16 It is also possible that the extensive paving required for the proposed use will not compromise the site's future re-use for recreational activities more consistent with the precinct's long-term strategic outcomes.

17 Turning now to the Enterprise Site's Policy at Clause 22.07 of the Scheme, this policy sits as an element within the greater or more encompassing Sandbelt Open Space Project Policy. The Enterprise Site's Policy applies only to properties along Clayton Road, south of Victory Road and along Heatherton Road, north of the proposed freeway reservation. The policy has as its objectives the promotion of innovative, well designed development which is compatible with the Sandbelt Open Space Project and offers a range of rural, recreational and tourism related opportunities on these high exposure sites. The Enterprise Site's Precinct can be distinguished from the remainder of the sandbelt because it comprises sites unlikely to be exploited for their sand deposits due to their small size. This has resulted it the adoption of a different set of criteria for this area's future development.

18 It does seem however that the advent of the core planning provisions at Clause 57.01 of the Scheme will impact on the ability of sites within the Enterprise Site's Policy Area to be used for various of the activities listed for the precinct, including tourism related activities, given the emphasis now on such activities having to relate to rural pursuits. I agree also with Mr Clarke that rural usage of this or indeed neighbouring sites is hardly a feasible option, given their location and current use and development. Furthermore, as also suggested by Mr Clarke, the prospect of the subject land being used for recreation and in particular activities within the open space project's theme for outdoor adventure would appear to have significant shortcomings given the current land use context - even having regard to the Council's recently rehabilitated land to the north.

19 All in all I agree with Mr Clarke that the Enterprise Site's aspect of the Sandbelt Open Space Project has not been particularly thought through and has been compromised further by the core provisions at Clause 57.01.

20 The actual intent for the Enterprise Site's Precinct is also not clear, either from the reference document, namely the Sandbelt Open Space Project Master Plan, or from the subsequent studies provided to me by Ms Lane; namely Parks Victoria's 2002 report Linking People and Places and GHD's 2002 Strategic Review of Kingston's Non-Urban Areas.

21 It is my conclusion in the light of this vagueness about Enterprise site's that approval on a temporary basis, as per Mr Clarke's evidence, constitutes a sensible outcome.

22 I consider a 15 year time limit to be appropriate. This would provide sufficient lead time for the Sandbelt's reclamation works to progress to a state of greater certainty, especially in relation to the core parklands. Furthermore, by this time the outcome of other proceedings presently underway in relation to materials recycling within the near neighbourhood will have been decided. For example it may be that the precinct will convert in part to a specialist recycling area in response to initiatives to reduce land fill and, with that, altering the rate at which land will be rehabilitated. In 15 years this will have had time to establish - if this direction is adopted.

23 In the meantime I am not persuaded that concrete batching with quality landscaping would compromise any park or recreation use that might otherwise be established within the next 15 years. Neither would it compromise other sites within the Enterprise Site's area from being developed for a recreational use should such a use be found viable. Accordingly, I propose to grant a permit for 15 years. This period may be extended the Responsible Authority, having regard at that time to the development of the parkland project or to any recycling usage to which the precinct may have been put. I agree with Ms Lane that in the event of the use ceasing, the above and below ground structures of the silo and hoppers should be removed or otherwise made good. To do this however in the context of an expired permit will require a Section 173 agreement to be entered into and I will include a condition of permit to this effect.