Manning v Macedon Ranges SC & Anor [2002] VCAT 454

A new condition to be added after Condition 2 to read "Prior to any works commencing in relation to the establishment of the parking bays in Anslow Street, a report must be prepared by an approved horticulturist as to the effect of any works on the existing street trees and any design changes and management requirements necessary to protect such trees. This report will be endorsed and become part of the permit and the management plan will be implemented as a condition of the permit."

Existing condition 6 to be replaced by the following: "Prior to the endorsement of the plans the subject of this permit, detailed plan and drainage calculations to demonstrate that the requirements of Condition 5 can be satisfied must be submitted to and approved by the Responsible Authority."

Existing condition 6 to be amended by the addition at its end of the words "and Goulburn-Murray Water."

s Mr. Martin Verhoeven, planning consultant, appeared for the permit applicant. Mr. Verhoeven called, as expert witnesses, Ms. Sigrid Sanderson, traffic engineer, of Arup and Mr. Vocale, civil engineer with P F James Pty Ltd.

s Mr. Matthew Townshend of counsel, by direct brief, appeared for the applicant for review. Mr. Townshend was assisted by Ms. Christine Pruneau, resident of Woodend.

s Ms Coral Young appeared for the Responsible Authority.

1. Application under Section 82 of the Planning and Environment Act 1987 (the Act) to review a decision to grant a permit to construct additional shops with associated changes to the existing parking provision and changes to the parking layout and the provision of additional landscaping at the 19th Hole Shopping Centre, Main Street, Woodend.

3. Macedon Ranges Planning Scheme. Business 1 zone, Land Subject to Inundation Overlay (LSIO) (in part), Environmental Significance Overlay (ESO 4 - Eppalock Proclaimed Catchment).

4. Land adjoining or opposite the site is zoned Road Zone 1 (High Street, to the west), Residential 1 zone and Public Use Zone 6 (to the east), Public Park and Recreation Zone (to the north) and further Business 1 zone to the south. There is a small area of Heritage Overlay on the southeastern corner of Anslow and High Street, south of the site, Environmental Significance Overlay 4 affects all surrounding land and an area of LSIO extends to the south along Washington Lane.

5. A planning permit is required for buildings and works pursuant to the Business 1 zone, for buildings and works pursuant to the LSIO and for buildings and works pursuant to the ESO4.

s The proposal is contrary to the orderly and proper planning of the area.

s The proposal would be an over-development of the site.

s The proposal does not accord with the Woodend Urban Design Framework (Strategy).

s The proposal will cause traffic and parking problems on surrounding streets.

s The proposal will prejudice the amenity of the area.

s The proposal does not provide sufficient landscaping.

s The development will exacerbate local flooding issues and has not addressed already severe localised flooding.

s Macedon Ranges Planning Scheme requirements have not been met including (but not limited to) provisions relating to:

- Catchment management / Water Quality Issues, Floodplain Protection and Drainage.

- Site Context, Urban Design, Design & Built Form and Landscaping

7. The land is situated at 130 High Street, Woodend.

8. The land approximates a triangle with its point to the north (but truncated where it has a short street abuttal). It is bounded by High Street (previously called the Calder Highway) to the west, a short section of Wood Street to the north, Nicholson Street to the east and Anslow Street to the south.

9. The site is an island site surrounded by High Street, Wood Street, Nicholson Street and Anslow Street. The whole of this island, except for a group of buildings in the southwestern corner is owned by the permit applicant. The permit applicant's site is developed with a number of shops, including a Mitre 10 on the eastern side and a supermarket located towards the southern side of the title (but backing onto the land in separate ownership There is a large area of parking in the centre and western sides of the site with vehicular access from High Street. In the south eastern corner of the site is an open area surfaced with gravel and used for informal, overflow parking.

10. Opposite the site to the east, across Nicholson Street, is an area of public open space, one dwelling, an ambulance station, kindergarten and child-care centre and, on the corner of Nicholson and Anslow Street, a group of elderly persons residential units.

11. There is an avenue of established deciduous trees within the grassed roadway verges of Anslow Street. There is a narrow accessway into the parking area off Anslow Street, beside the gravelled area and, to the west of that, an area of vacant land set behind the existing supermarket.

12. The balance of the Woodend retail centre, consists of small shops of the traditional country shopping strip. These are located on the western side of High Street or extend southwards (both sides of the highway) from the Anslow Street.

s 6 additional shops, to be built in 3 stages, the first of which is for 2 shops and associated parking, including changes to the parking layout on the site and construction of additional parking spaces adjoining the site in Anslow Street. Stage 1 also includes the relocation of the existing loading facilities of the supermarket, with deliveries taking place via a truck entry from Anslow Street.

s The second stage involves the further extension of the existing Mitre 10 store and adjoining retail premises of about 1,000 square metres plus an additional are of about 265 square metres to be used as an outdoor garden area.

14. Of the various types of proposed retail use, the only one that appears to fall outside the definition of Shop is the area of outdoor garden area proposed in the second stage. There was no discussion about, or submissions in relation to the specific requirements of this use. There was some discussion at the hearing about the terms of the permit application in relation to this specific use but my notes taken during the hearing are not conclusive. Given that there was no submission seeking to amend the permit application (which ambiguously referred to the use as Retail Shops), I have treated this application as being only for buildings and works, not for use.

15. During the course of the hearing I was provided with a range of information relevant to the decision to be made in this Application for Review. In brief summary this background information included:

s Written and verbal submissions, written and oral expert evidence and a range of photographs

s Reports on flooding and drainage in the locality and/or subject site prepared by Coomes Consulting Group Pty Ltd, Parry Fraser & Jones Pty Ltd and Mr. Geoff Crapper.

Matters for Consideration Pursuant to the Planning Controls and Policies

16. The Planning and Environment Act 1987 (Vic), s. 84B sets out the matters the tribunal must take into account in determining an Application for Review. Section 84B(2) also requires the Tribunal to take into account any matters which the Responsible Authority could have taken into account, for example, under s.60 of the Planning and Environment Act 1987.

17. I have adopted the relevant planning policies as set out by Ms. Young.

The subject site is zoned Business 1. Clause 34.01-4 specifies that a permit is required to construct a building or construct or carry out works.

· To implement the State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies.

· To encourage the intensive development of business centres for retailing and other complementary and community uses.

The site falls within an Environmental Significance Overlay 4, and Land Subject to Inundation Overlay covers part of the land (on the northern section).

- Environmental Significance Overlay 4 purposes include:

· To identify areas where the development of land may be effected by environmental constraints.

· To ensure that development is compatible with identified environmental issues.

- Land Subject to Inundation Overlay purposes include:

· To identify land in a flood storage or flood prone fringe area affected by the 1 in 100 year flood or other area determined by the floodplain management authority.

· To ensure that development maintained the free passage and temporary storage of floodwaters, minimises flood damage, is compatible with the flood hazard and local drainage conditions and will not cause any significant rise in flood or flow velocity.

· To reflect any declaration under Division 4 of Part 10 of the Water Act, 1989 where a declaration has been made.

· To protect water quality in accordance with the provisions of relevant State Environmental Protection Policies, particularly in accordance with Clauses 33 & 35 of the State Environmental Protection Policy (Waters of Victoria).

The following policies are considered relevant to the assessment and consideration of this application:

- Clause 15.01 -Protection of catchments, waterways and groundwater

Pursuant to Clause 15.01 it is an objective of planning to:

· To assist the protection and, where possible, restoration of catchments, waterways, water bodies, groundwater, and the marine environment

In implementing the above objective, the Responsible Authority must consider measures to minimise the quantity and retard the flow of stormwater runoff from developed areas.

Pursuant to Clause 15.02 it is an objective of planning to: To assist the protection of:

· Life, property and community infrastructure from flood hazard .The natural flood carrying capacity of rivers, streams and floodways

· The flood storage function of floodplains and waterways

· Floodplain areas of environmental significance.

In implementing the above objective, the Responsible Authority must consider, amongst other things, any floodplain management manual of policy and practice or catchment management or floodplain management strategy adopted by the relevant responsible floodplain management authority.

Pursuant to Clause 17.02 it is an objective of planning:

· To encourage developments which meet community's needs for retail, entertainment, office and other commercial services to provide net community benefit in relation to accessibility, efficient infrastructure use and the aggregation and sustainability of commercial facilities.

In implementing the above objective, the Responsible Authority must have regard to Clause 17.2-2, which includes:

· Commercial facilities should be located in existing or planned activity centres.

Pursuant to Clause 19.03-1 it is an objective of planning to: To achieve high quality urban design and architecture that:

· Reflects the particular characteristics, aspirations and cultural identity of the community.

· Enhances livability, diversity, amenity and safety of the public realm.

· Promotes attractiveness of town and cities within broader strategic contexts.

In implementing the above objective, the Responsible Authority must have regard to the following design principles when considering proposals for non-residential development not covered by Clause 54, Clause 55 or Clause 56.

· Development must take into account natural, cultural and strategic context of its location

· A comprehensive site analysis should be the starting point of the design process and form the basis for consideration of height, scale and massing of new development.

· The public realm, which includes main pedestrian spaces, streets, squares, parks and walkways, should be protected and enhanced.

· Landmarks, views and vistas should be protected and enhanced or, where appropriate, created by new additions to the built environment.

· Design of the relationship between buildings and footpaths and other pedestrian spaces, including the arrangement of adjoining activities, entrances, windows, and architectural decoration, should enhance the visual and social experience of the observer.

· New development should respect, not simply copy, historic precedents and create a worth legacy for future generations.

· New development should contribute to the "complexity" and diversity of the built environment.

· Site consolidation should not result in street frontages which are out of keeping with the "complexity" and "rhythm" of existing streetscapes.

· The development process should be managed so that sites are not in an unattractive, neglected state for excessive periods and the impacts from vacant sites are minimised.

· Enjoyment of the public realm should be enhanced by a desirable balance of sunlight and shade.

· This balance should not be compromised by undesirable overshading or exposure to the sun.

· All building, subdivision and engineering works should promote more efficient use of resources and energy efficiency.

· New development should aspire to the high standards in architecture and urban design.

· Any rooftop plant, lift over-runs, service entries, communication devices, and other technical attachment should be treated as part of the overall design.

· Recognition should be given to the setting in which buildings are designed and the integrating role of landscape architecture.

Planning authorities should emphasise urban design policies and frameworks for key locations or precincts.

- 4. Local Policies -Clause 22 of the Planning Scheme

The following policies are considered relevant to the assessment of the proposal:

Included in this Clause, it is policy (relevant to this proposal)

· Use and development of land in the township and environs that protects and adds to the landscape character of the township will be supported.

· The town centre is to retain its existing compact form. Proposals for new commercial and business development that retain this compact form and avoid expansion along major entry roads will be supported.

18. Council advertised the permit application and received a number of objections. The application was referred to a number of authorities pursuant to Section 55 of the Act who provided the following responses:

s North Central Catchment Management Authority. Its response included the following:

- "1% probability flood levels have not been designated (or declared, as appropriate) for the area under the Water Act, 1989 or its predecessor Act. The estimated 1 % probability flood level at the northern boundary of Lot 6 is 551.90 metre AHD.

- The flood estimate has been derived from the DNRE's Flood Planning Map -Shire of Macedon Ranges -Drawing No. 500470-017 which shows the boundary of the Floodway Area being at the northern boundary of Lot 6."

19. At the commencement of the hearing, Mr. Townshend submitted that the Responsible Authority had failed in its responsibilities pursuant to Section 55 of the Planning & Environment Act 1987 in that it was obliged, but had failed, to refer the permit application to Goulburn-Murray Water as floodplain management authority.

20. With agreement of the other parties, Ms Young provided, by facsimile, details of the proposed development to Goulburn-Murray Water and received a letter in return by facsimile on the 24th May from Mr. Pat Feehan, Manager Natural Resources - Tatura. Mr. Feehan pointed out that Goulburn-Murray Water's concerns lay with "surface and ground water quality and use and disposal. G-MW would want to be assured that the development proposals do not impact on detrimentally on the flow and quality of surface and groundwater ......." The authority did not object to the permit application but required the proposed permit condition No. 6 to be amended to read "to give effect to ... and approved by the Responsible Authority and Goulburn-Murray Water."

Exemption Provisions of Clause 34.01 Business 1 Zone

21. Clause 34.01-3 provides that an application is exempt from the provisions of Section 52(1)(a), (b) and (d), the decision requirements of Section 64(1), (2) and (3) and the review rights of Section 82(1) of the Act (the Exemption Provision). This exemption does not apply to land within 30m of land (not a road) that is a residential zone (the Exemption Waiver provision). There is a short section of Residential zone to the east of the site, across Nicholson Street.

22. No information or submissions were put to the Tribunal about the width of Nicholson Street. From the various maps provided, it is not possible to confidently establish a width, though it is likely to be at least close to 30m if not that or more. No party contested that Mr. Manning's application for review was valid.

23. A second issue, raised only obliquely by Mr. Verhoeven, was the question of whether the extent of Mr. Manning's application for review was limited to those parts of the buildings and works within 30m of the residential zone (not being a road). However, no submission was put to the Tribunal and, as the determination of this matter would be a legal question, I have not addressed it.

24. However, I have turned my mind briefly to the question of the purpose of the Exemption Provision and the Exemption Waiver provision. It is clear, although there is no statement of the purpose of the latter provision, that it is intended to provide rights for the review of an application where persons living in a residential zone might be directly affected. Although the criteria of 30m is, in the circumstances, crude, it does indicate that the criterion for the likelihood of a resident being affected is entirely based on their dwelling being situated relatively close to the relevant buildings and works. I note that Mr. Manning lives a considerable distance from the site and many of the issues that Mr. Townshend raised related to matters that could only be experienced in a context extending far beyond 30m. In effect, if Nicholson Street is 30m or more in width, this aspect of the matters raised in this review by Mr. Townshend would be ultra vires.

25. There is, in the circumstances of this case, no suggestion that Mr. Manning is not entitled to seek this review. It is certainly valid in relation to the approval requirements of the LSIO and the ESO. However, I am also mindful of the purpose of the Exemption Waiver and I have born this in mind as one of the various factors relevant to making my decision in respect to each of the issues raised in the review.

26. From the submissions and evidence put before the Tribunal, the issues that are the key to this decision are those of:

27. The proposed development of additional shops will increase the floor area of the existing shopping centre from 4,068 square metres to 7,527.6 square metres, an increase of 3,459.6 square metres. The provision of parking on the site will actually be reduced, as four existing on-street parking spaces will be removed and a gravelled area on the southeastern corner of the site, presently used for informal parking, will be occupied by new retail premises.

28. Ms. Sanderson provided a comprehensive and detailed analysis of the existing parking demand, the parking generation rate of the existing retail premises, together with the existing and future supply of parking in the area. She had, in part, relied on data about parking supply and demand in Woodend that had been collected by David Lock Associates as part of a previous study of the Woodend Shopping Centre, the Woodend Urban Design Framework Study 2000. I consider that the extent and duration of the surveys that Ms. Sanderson relied on are adequate.

29. The situation is, in summary, that the existing shopping center is overprovided with parking, due to either or both the original use of excessively high parking generation rates or a decline in parking demand due to changes over the years in shoppers' travel behaviour.

30. The new development, when completed, will provide or have direct access to 233 spaces, consisting of 189 spaces on-site and 45 spaces in Anslow Street, adjoining. Using the existing parking generation rate of 3.2 spaces/100 square metres Gross Floor Area, Ms. Sanderson calculated the peak parking demand for the extended shopping centres as 241 spaces, so that there would be 8 spaces required in addition to those provided within or adjoining the site. From the data collected by David Lock Associates, she concluded that there would be sufficient vacant parking spaces in Woodend's commercial centre, sufficiently close to this site, to satisfy this demand. The research by David Lock Associates had identified 94 vacant on-street parking spaces within the vicinity of the subject site.

31. Ms Sanderson checked the veracity of her calculations by using a number of comparisons and check procedures.

32. In view of the minor effects that Ms. Sanderson has concluded would be caused by the proposed development, particularly in relation to the effect of traffic on the surrounding streets, I consider that there is room for a considerable margin of error without invalidating her conclusions (refer discussion following).

33. Ms. Sanderson proposed that the parking for staff engaged on the subject site be directed to use the parking spaces in Anslow Street and pointed out that this parking would be relatively unattractive for shoppers, as it was rather remote from shoppers' destinations on the subject site. Mr. Townshend questioned the credibility of this on the basis that it would not be feasible to direct staff to park in this location. However, there are a number of solutions to the management of parking, including arrangements that private property owners can enter into with councils to police parking on private sites as well as in the surrounding streets. This is a matter that I consider can be left to council and the permit applicant to resolve.

34. Having reviewed Ms. Sanderson's evidence and her responses to the cross examination, I accept that the proposed development will not cause parking congestion in the vicinity of the subject site. In fact, given the changes that will occur to traffic volumes in High Street with the future opening of the Woodend By-pass and the availability at peak hour of surplus parking spaces nearby, I believe that it would be acceptable to reduce marginally the number of kerbside parking spaces in Anslow Street.

35. Ms. Sanderson had assessed the peak hour traffic generation of the existing site development and the traffic generation of the extended premises by using a theoretical assessment of parking turnover (maximum parking demand, cars are parked for 1 hour) and using her professional judgment as to the direction of trips to/from the centre. On this basis, she calculated that the total peak-hour trip generation rate of the subject shopping centre would increase from 167 movements to 379, an increase of 212. The peak hour traffic volume in Anslow Street, after completion of development, would total 113 vehicles. At present, Anslow Street has a relatively minor traffic role. It is clear that this additional traffic will be well within the capacity of a street serving a commercial centre.

36. Mr. Townshend submitted that the provision for truck loading bays would be inadequate and would cause congestion and unsafe conditions for pedestrians. Ms. Sanderson had informed herself of the expected frequency of truck deliveries to the Target store, the likely vehicular use of Nicholson Street, the likely pedestrian use of the western footpath and had calculated, using a computer program, the swept path of a semi-trailer reversing into the loading bay. From this she had concluded as follows:

s Only very light pedestrian traffic would occur along the western footpath and the occasional interruption would be acceptable

s The movement of a semi-trailer reversing into the loading bay would require the removal of the 4 right-angled, kerbside parking spaces (a matter that Ms Sanderson had allowed for in her calculations of the adequacy of the parking supply and are reflected in a proposed permit condition)

s The proposal to construct a pedestrian refuge in Nicholson Street, at the intersection with Anslow Street, would further enhance pedestrian safety.

37. Ms. Sanderson concluded that, overall, and subject to the qualifications above, that the loading bay access would be safe and appropriate.

38. No evidence was brought to the contrary. Having considered the other submissions and Ms. Sanderson's evidence, I have concluded that the ground of the application for review relating to parking and traffic is rejected.

39. Mr. Townshend made extensive submissions dealing with the issue of urban design. He referred to High Street as a heritage streetscape and the site as a gateway site in the township for travelers approaching from the north. Concerns that were raised in his submission were as follows:

s The high rooflines of the new buildings proposed along the eastern side of Nicholson Street and the ability of this building to block extensive views across the site from High Street to Mount Macedon, to the south-east.

s The absence of any proposal to provide infill shops front across the site and facing onto High Street (ie. to replace the view into the car park with a line of shop fronts. In particular, Mr. Townshend submitted that "the existing shopping centre's urbanized character, layout, scale, building design and signage are not complementary to the township's otherwise distinctive village atmosphere. ......."

40. In respect to the latter matter, Mr. Townshend referred to the design principles set out in the Woodend Urban Design Framework Study 2000. Council and Mr. Verhoeven rejected these submissions on a number of grounds. Taking these together with my own observations, I have reached the following conclusions:

s While the Woodend Urban Design Framework Study 2000 has not been adopted by Council, it nevertheless provides a useful guide to streetscape design. On the other hand, its relevance to this application has been overstated.

s Mr. Townshend's submission that the developer should be creating a layout that provides an active retail frontage across the front of the car park is not so much an objection to what the permit applicant is proposing as an objection to the permit applicant's failure to undertake a quite major restructuring and redevelopment of the site as part of its further development.

s The loss of the distant view of Mt. Macedon across the site - the result of the scale and location of the proposed buildings on the eastern side of the site - is irrelevant, as successful compliance with Mr. Townshend's other proposition, ie. that shops should be built across the front of the car park, would even more effectively obscure this view. There are a number of views of Mt. Macedon - it can be seen from many points within and adjoining the township - and, while every view may be cherished, not every one can or should be saved.

s The site is not located with a Heritage Overlay and most of the streetscape of High Street is not situated in such an overlay, though a number of isolated buildings are. Consequently, the streetscape cannot, in statutory terms, be referred to as a heritage streetscape.

s The urban design character that will be created along the eastern side of Nicholson Street will be a continuation of that which has already been commenced with the Mitre 10 building. This street contains one dwelling and the Senior Citizens Units, opposite the site as well as a kindergarten/day care centre and an ambulance station. It is not a residential street. While I do not know if there were any objections from residents or other persons with an interest in property in Nicholson Street, no one with such an interest has chosen to become a party to this Review. I put some weight on their absence.

41. It seems to me that Mr Manning is concerned as much about the inappropriateness of the original design and layout of this shopping complex, which, on the basis of his grounds of application for review and Mr. Townshend's submissions, is entirely unsuitable for the village character of Woodend. The complex is laid out with the car parking area at the front, where it is visible and accessible from High Street. The major stores are grouped around it and have access from the car park. This is an extremely common design principle. On the basis of Mr. Townshend's submission, the whole site layout, including the arrangement of the vehicular entries, the access-system between car park and stores and so on, would all have to be entirely changed to satisfy his client's concerns. This proposition seems to me to be quite unreasonable.

42. Mr. Townshend made a submission about the inadequacies of the landscaping proposal and of the detrimental effects that the proposed right-angled parking bays in Anslow Street would have on the street trees that are located between the proposed parking bays. Mr. Townshend submitted that the parking bays would be too close to the trees, which would be detrimentally affected by the necessary construction works. This can be addressed by further research and the requirement for additional trees to be planted.

43. In conclusion, I consider the design layout and general architectural character of the proposal to be satisfactory. By infilling further development within an existing commercial site, the proposal meets the relevant objectives of the Woodend Urban Design Framework Study 2000 and the commercial objectives of the Business 1 zone.

44. Mr. Townshend made a number of submissions in relation to the flooding that affects the site and demonstrated this by showing me a video of a flood event that had occurred on the subject site with little warning on the 21st November 1992 (obtained from TV Channel 10).

45. The flooding originates from the water passing down the Washington Lane floodway towards the Five Mile Creek, to the north. There is a large box drain passing under the site but this does not have sufficient capacity to deal with peak floods (Mr. Crapper's estimated capacity of this box drain was 1.2m3/sec). There have been a number of flood investigations undertaken over the last 5 years by Council and the owners of the subject site, both in conjunction with the initial site development and as a general investigation directed to reducing local flooding.

46. One of the earliest reports provided to the Tribunal was by Coomes Consulting Group Pty Ltd (24th November 1998) which made a flood assessment of the subject site. A key issue in the discussions at this hearing was that author's estimate that floodway design for waters passing across the subject site should be based on an assumed flow rate of 10 m3/second.

47. There were a number of points of agreement but a larger number in contention between the parties about drainage design and the likelihood and severity of any flooding; also about how any such likelihood should be addressed.

48. The issue crystallised into the following. According to Mr. Townshend's submission, there would be the possibility of flood waters moving down the Washington Lane floodway in such volumes that lives of people attending the subject site would be put at risk. Mr. Townshend illustrated his concern by pointing out that the parking area and driveway between the new Bi-Lo and the existing supermarket, which will contain the driveway access onto Anslow Street, could act like a funnel as rising floodwaters passed through it towards the restricted throat. In this eventuality, Mr. Townshend predicted that cars parked in this area could be lifted by the floodwater and floated downstream into the throat of the `funnel', thereby creating a further blockage and exacerbating the flood level.

49. Two matters that became the focus of this discussion were:

s the assumptions used by different experts to calculate the capacity of the subject site's car park to accommodate the passage of floodwaters. Mr. Crapper's report had used a 100-year flow of 5m3/sec, while the Coomes Consulting Group Pty Ltd had adopted a figure of 10m3/sec. The recent report by Parry Fraser & James Pty Ltd had adopted the lower figure

s the freeboard of the floor level in the proposed new B-Lo store above the eventual 1% probability flood level.

50. Mr. Townshend's submission included a table drawn from Melbourne Water's Floodway Safety Criteria which he used to demonstrate that the lower flow rate would, for a a floodway of 0.3m height require a width of 14.0m, while the higher flow rate required a width of floodway of 28m for the same depth. He submitted that the accessway between the proposed Bi-Lo building and the existing supermarket would be as little as 6m. However, this is simply the clear width of driveway. By my scaling off the drawings, the total dimension between opposing walls is about 17.5m.

51. Mr. Verhoeven submitted that the proposed Permit Condition Nos 5 and 6 would deal adequately with this situation. Condition 5 requires the floodway to be designed to accommodate a 1% AEP flood. Condition 6 requires that this be completed prior to the commencement of construction. Mr. Townshend submitted that this was an unsatisfactory solution in that while there was no certainty that an adequate floodway could be designed, there could be no finality to the planning permit. This issue is affected by whether there is or is not certainty as to whether an adequate floodway can be designed without a substantial change to the site layout. Mr. Townshend clearly believes it cannot, Mr. Verhoeven that it can. I accept hat, given freedom to change the floor levels of new buildings, there is reasonable scope to find an acceptable solution to this problem.

52. It is clear that there is further design work required to establish the details of the floodway flow rates and the design of the floodway across the parking area and the floor levels of the adjoining buildings. This will require appropriate technical expertise. However, there is, in my view, no basis for assuming that this design cannot be achieved within the reasonable parameters set by the proposed building layout. There appears to be reasonable flexibility to deal with a number of design options, particularly in relation to pavement and floor levels.

53. In my opinion, given that one of the key variables in the design of the floodway is the floor level of the new B-Lo store, the matter can be resolved by adopting Condition 5 as it is, but requiring that the drawings can only be endorsed after the floodway has been designed to a satisfactory performance standard. That would avoid the situation that a set of endorsed plans could exist which could not satisfy a subsequent design requirement.

54. On the basis of the above assessment, I consider it appropriate that Council's decision be upheld.

55. There was no specific discussion on the proposed conditions. I have identified two matters in the preceding discussion:

s The need to undertake investigations to ensure that works within the street to not unintentionally and detrimentally affect the established trees

s The change that I have proposed to Condition 6 to bring forward the point at which the design of the floodway across the site must be finalised.

For the above reasons, the decision of the responsible authority is supported subject to conditions. It is appropriate for a permit to be granted for the construction of shops with associated car parking and landscaping and I so order.