1. The decision of the Responsible Authority is varied.
2. In permit application PL14/158 a permit is granted and directed to be issued for the land at 115 Princes Highway, Port Fairy in accordance with the endorsed plans and on the conditions set out in Appendix A. The permit allows:
   • Construction of buildings and works including fencing for an outdoor playground.

Ms Fiona Castley, Town Planner of Calibre Consulting (Melb) Pty Ltd.

Construction of an outdoor play centre at a Big 4 camping and caravan park.

Application under Section 82 of the Planning and Environment Act 1987 to review the decision to grant a permit.

Cl. 32.08-6 (construct a building or construct or carry out works for a section 2 use in GRZ1).

Cl. 43.02-2 (construct a building or carry out works in DDO15).

Clauses 10, 11, 12, 13, 15, 17, 18, 21.05, 21.06, 21.07, 21.09, 52.06 and 65.

The review site is rectangular in shape, has an area of approximately 2 hectares and is located on the eastern side of the Princes Highway, between McGill Court to the south and Norfolk Place to the north.

The site is developed for a Big 4 camping and caravan park along with ancillary facilities including administration building, tennis courts, mini golf course, swimming pool, multi purpose building, indoor play centre and outdoor playground. The outdoor playground is the subject of this application for review.

I undertook an inspection one and half weeks after the hearing.

1. Mr Maxwell, who operates Clonmara Cottages Tearoom and Gift Shop on the opposite side of the Princes Highway and approximately 100 metres south of the review site, opposes Council's decision to retrospectively approve a small outdoor playground at the nearby Big 4 Holiday Park.
2. The outdoor playground is located at the front of the site, adjoining the main entrance point to the park. It consists of a set of professional manufactured play equipment of a type, style and colour commonly found in playgrounds across Victoria. It is brightly coloured and includes ladder, steps, slide, cubby holes and the like. It has a maximum height of just over 4 metres and is placed on a soft tan bark like material to aid child safety. The play ground is separated from the footpath along the Princes Highway by a black metal, pool style fence with a height of approximately 1.8 metres. The fence continues along the northern side of the playground adjacent the main entrance which includes a two-way vehicular driveway and a pedestrian path alongside the playground. The pedestrian path is separated from the driveway by an open framed metal fence of approximately 1.2 metres in height. Small shrubs have been planted along the southern, western and northern edges of the playground and these will, in time, serve to filter views into and out of the playground.
3. Council has also retrospectively granted a permit No PL14/159 for an indoor play centre which is positioned directly behind the outdoor playground. That permit issued in January 2015 on the basis that no application was lodged against Council's Notice of Decision to Grant a Permit.
4. Subsequently there was a dispute about whether Mr Maxwell's application for review was against both applications. Following a Practice Day Hearing, Member Cook determined that only the decision concerning the outdoor playground was subject to the application for review. I have proceeded with my assessment on that basis.
5. It is intended that the indoor play centre and outdoor playground will be used together by up to 20 children at any one time. In the main holiday periods the facilities will be used by guests at the park. However, in quieter off seasons, the facilities will be available for hire by non-guests. Supervision will be by parents rather than professional staff.

1. Mr Fletcher's verbal submission raised a number of procedural issues which I deal with first before discussing the planning merits of the proposal.
2. I emphasise at the outset that the Tribunal is 'standing in the shoes' of the Responsible Authority and considering the proposal with fresh eyes. It is not uncommon for applicants for review to raise shortcomings in the way a Responsible Authority has dealt with an application. Nor is it uncommon for applications to be made to seek retrospective approval for a use or development that has occurred before obtaining necessary approvals. Sometimes such applications arise from a Responsible Authority's own ongoing auditing of use and development that is occurring in its municipality. Sometimes it arises from complaints or queries from other landowners, ratepayers or interested people. In assessing retrospective applications, it not the case that a Responsible Authority will automatically grant a retrospective approval. In the same week that I heard the application for review at Port Fairy, I heard an application for review against a Responsible Authority's refusal to grant a permit for solar panels installed without the necessary permit. I affirmed the decision and directed that no permit was to be granted.
3. The main procedural issue raised by Mr Fletcher (what he referred to as Mr Maxwell's 'killer point') was the way in which Council dealt with the request for further information. That request pursuant to section 54 of the Planning and Environment Act 1987 was sent on 12 August 2014. It related to both permit applications PL14/158 and PL14/159. Amongst other matters, it asked for additional information about car parking and access. It asked that a traffic impact statement be prepared and noted that it was preferable that the traffic impact statement be prepared by a suitably qualified traffic engineer. The letter also stated that the information[2] was to be received by 20 September 2014 and that unless the information was provided by that date the application would lapse.
4. DHT Consulting Pty Ltd provided a written response to the further information request by letter dated 2 September 2014. That material was accepted by Council staff as fulfilling the further information request, although it did not include a traffic impact statement prepared by a suitably qualified traffic engineer. As indicated at the hearing, I may not have accepted the comments about carparking and access as satisfying the request for a traffic impact statement, but the Council officer was satisfied and proceeded to report on the application to Council.
5. As I have already noted, I am considering the application afresh. I am concerned about the planning merits rather than suggested procedural mistakes or shortcomings made by a Responsible Authority. At the hearing I provided parties with an extract from Pizer's Annotated VCAT Act[3] and specifically, copies of the commentary about the role and purpose of Clause 62 of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998. Clause 62 reads:

The Tribunal has jurisdiction to determine a proceeding under a planning enactment despite any failure to comply with the planning enactment or any other enactment and, in doing so, may determine to disregard that failure if the Tribunal considers it in the interests of justice to do so.

1. A large number of cases are cited by Pizer including some relating to further information requests. The key message as it applies to this application is that suggested procedural shortcomings should not be used to prevent the Tribunal from dealing with the fundamental planning issues to be decided if it is in the interests of justice to do so. In this application, I consider it is in the interests of justice to disregard suggested failures and to proceed to determine whether the proposal is acceptable when assessed against the relevant provisions of the Moyne Planning Scheme.

1. The outdoor playground comprises a relatively small piece of equipment. It is positioned in front of the indoor play centre and is accessed via steps from an elevated deck located across the front of the indoor play centre. I have previously discussed the layout and features of the outdoor play ground and how it will be used in conjunction with the indoor play centre for not more than 20 children.
2. As now constructed, the facility is of a high standard and presents as an attractive facility at the front of the Big 4 camping and caravan park. Fencing and landscaping provide an attractive edge treatment and physically and visibly separate the facility from the public domain along Princes Highway and the entrance area to the camping and caravan park.
3. At the hearing, I raised the possibility of modifying the fence between the internal driveway and pedestrian path to prevent children exiting the play centre from spilling out onto the driveway. However, my inspection confirmed that the existing fencing does provide an appropriate barrier and that there is no need for it to be modified.
4. Although the colours are vibrant, they are consistent with modern day play equipment and in my opinion is an appropriate adjunct to the camping and caravan park. The height at approximately 4 metres is not excessive, the equipment is highly articulated and lower than the administration building located on the northern side of the entrance way.
5. Although there is a flood light mounted on the verandah of the indoor play centre directed towards the outdoor playground, it appears to be mainly for security purposes given that the outdoor playground can only operate between 10am and 6pm.

Pedestrian safety and parking and traffic arrangements

1. The key issue in dispute concerns pedestrian safety and traffic arrangements. It is clear from Mr Fletcher's submission that Mr Maxwell has been severely affected by the death of five year old boy, killed 4 years ago when crossing the Princes Highway approximately 200 metres south of the proposed outdoor playground. It is my understanding that the incident occurred at a bridge across the creek just south of Mr Maxwell's property.
2. It is also my understanding that since that event, a separate pedestrian footbridge and footpath has been constructed east of and well separated from the road pavement. Previously pedestrians walking along the east side of the Princes Highway had to walk right alongside the traffic lanes without any intervening safety barriers.
3. In order to address these concerns about safety and traffic arrangements, Mr Hunt was called to give written and oral evidence. No other evidence was provided to contradict his opinion that, subject to the preparation and approval of a parking management plan, the proposal does not cause any unacceptable safety or traffic issues. Based on his evidence and answers to questions at the hearing, I agree with his assessment and am not persuaded that safety and traffic arrangements are so unacceptable that the application should be refused.
4. On the basis of photos tendered by Mr Maxwell and Mr Fletcher, it is apparent that verge parking in front of the playground already occurs and that children get out of cars and stand close to the road verge. That is a pre-existing situation which I agree is undesirable. Although it is easy to say that parents should be watchful of their children, it is impossible to fully anticipate how children will behave. It is far better to reduce potential risks by not allowing a situation to develop where children are placed at risk. In this location that can only be achieved by placing bollards and/or no parking signs on the verge outside the site.
5. VicRoads' written response that parking on the roadside is discouraged is meaningless unless it can be implemented in some practical or concrete way. Although the Notice of Decision to Grant a Permit included a condition to reflect this comment, I have deleted it and replaced it with a condition requiring a parking management plan. Requiring such a plan accords with Mr Hunt's recommendation at section 5.4 of his evidence statement.
6. In terms of works in the road verge itself, it is not something that I can require through this permit given that the road reserve is not part of the review site. It is something that Council and VicRoads need to address and would appear to be an issue for many properties along the Princes Highway in Port Fairy where verge parking takes place.
7. What is required instead is to remove the need to rely on verge parking by people using the outdoor playground.
8. I note that although verge parking is already occurring, Mr Hunt does not rely on such parking to meet the anticipated parking demands for the playground facilities.
9. A parking rate for the outdoor playground (and the indoor play centre) is not specified in Clause 52.06. I disagree with VicRoads and agree with Mr Hunt and Council that the number of required car parking spaces is to be to the satisfaction of the Responsible Authority. Council has formed the view that sufficient off-street car spaces exist in the off-season.
10. Mr Hunt has undertaken a demand assessment and estimates that 14 spaces would be required to cater for up to 20 children in both the indoor play centre and the outdoor playground. Mr Hunt considers that there is plenty of space available in the park for that number of vehicles and my inspection confirmed that more than 14 spaces are available in proximity to the indoor play centre and outdoor playground. Some of these are in the sealed area next to the administration centre, many more are on grassed areas amongst the accommodation units relatively close to the indoor play centre and outdoor playground.
11. In commenting about the adequacy of parking, I also observe that the Tribunal has previously determined that the adequacy of parking is not open to review in circumstances where car parking has to be to the satisfaction of the Responsible Authority. In Save our Seat Inc v Mornington Peninsula SC [4] the Tribunal commented that:

[51] As no planning permit is required for car parking, we do not have scope to assess the adequacy of car parking nor inquire into whether the Responsible Authority should have not formed the view that it was satisfied on this matter. The question of the design and layout of parking areas through Clauses 52.06-8 must be considered in the same way because there is no permit trigger with respect to the design standards (although this was not a central matter in the dispute before us other than with respect to the lower station car park that we identify later).

[52] It is further relevant to the limitations of our consideration that the permit application does not apply to land outside the proposed lease area and this is where car parking is proposed to be upgraded by Parks Victoria.

[53] We were invited by the permit applicant to take a holistic approach to this matter. Mr Bartley suggested that we could include permit conditions relating to the design of the lower station car parking area and requiring the availability of parking within the State Park at nominated places. The Responsible Authority offered the same approach when it proposed new conditions be added into a permit such as an Overflow Parking Plan.

[54] We do not consider that it is properly within our scope to address arguments advanced by SOS that there is inadequate car parking for the proposed use and development[5]. Nor do we consider it would be proper to consider permit conditions relating to the design or availability of parking areas that are beyond the bounds of the subject land and over which the permit applicant would have no control[6]. While car parking may have been a matter that the Responsible Authority took into account[7], we believe it would be overstepping our ambit and is outside our jurisdiction. Having said that, it is relevant for us to address arguments presented by Mr Connor that the approach taken to the permit application is piecemeal or left wanting because the planning unit is uncertain, because it is contrary to orderly planning, and because not all of the use is within the permit application. Parking facilities and other infrastructure are part of these questions. We address them below.

[55] We do not agree with the submission for SOS that we are required to consider car parking under Section 84B(1)(a) because the Council did so in its assessment. The Section states that the Tribunal must take account of any matter which the person or body in respect of whose decision the application for review is made properly took account of in making its decision. The Council properly took parking into account because it was required to be satisfied on this matter under Clause 52.06-5A. We have explained above why we are not in the same position. The Tribunal must confine itself to matters within its jurisdiction[8].

1. Based on all the factors I have referred to above, I consider that there is no justification to refuse the application because of the inadequate provision of off street parking. It is possible to use on-site spaces in preference to those on the road verge.

1. Whilst I understand Mr Maxwell's strongly felt concerns about children's safety and the risks posed by locating an outdoor playground in the front section of the Big 4 camping and caravan park, I am not persuaded that the application should be refused for those reasons.
2. I consider that the actual size and nature of construction of the playground do not generate any unreasonable visual or amenity impacts. Subject to the preparation and approval of an appropriate parking management plan, I am persuaded that sufficient parking can be provided within the site and that there is no necessity to rely on verge parking to meet the anticipated demand.
3. I accept that verge parking does occur and on my inspection cars were parked on the verge despite the wet weather, non use of any outdoor facilities and seemingly very low occupancy within the park. It is a pre-existing situation which needs to be addressed by the relevant road management authorities.

1. Having regard to all of the above, I will therefore vary Council's decision and direct that a conditional permit is to be issued.

Construction of buildings and works including fencing for an outdoor playground in accordance with the endorsed plans.

1. 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 and will then form part of the permit. The plans must be drawn to scale with dimensions and three copies must be provided. The plans must be generally in accordance with the plans submitted with the application or some other specified plans but modified to show:
   • (a) Site plan modified where necessary to be in accordance with the Concept Plan prepared DHT Consulting Pty Ltd dated September 2014, excluding open fence extension to 113 Princes Highway.
   • (b) A notation to be placed on the Site Plan and Elevation Plan that no external lighting is to installed without the written consent of the responsible authority.
   • (c) A landscape plan in accordance with Condition 3 of this permit.

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

1. A landscape plan prepared by a suitably qualified person must be submitted to and approved by the Responsible Authority. The plan must be drawn to scale with dimensions and three copies must be provided. The plan must be generally in accordance with the Concept Plan prepared by DHT Consulting Pty Ltd dated September 2014 but modified to show:
   • (a) A planting schedule of all proposed trees, shrubs and ground covers, including botanical names, common names, pot sizes, sizes at maturity and quantities of each plant. Nomination of street tree planting must be undertaken in consultation with VicRoads and the responsible authority.
   • (b) A notation that street tree planting is to be undertaken by the responsible authority at the cost of the owner.
   • (c) Details of the materials and heights of fencing.

1. Within 12 months after the completion of the buildings and works all landscape works forming part of the endorsed Landscape Plan must be completed and maintained to the satisfaction of the Responsible Authority.
2. Street tree planting as shown on the endorsed Landscape Plan is to be carried out within 12 months of the date of this permit at the discretion of the responsible authority in consultation with VicRoads at the cost of the owner.

1. The indoor play centre and outdoor playground must operate between the following hours unless otherwise approved in writing by the Responsible Authority: 10:00am to 6:00pm seven days a week.

1. Within 3 months of the issue date of this permit, a Parking Management Plan to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. The plan must address the following management measures and how they are to be implemented:
   • (a) External use of the facility to be only undertaken by pre-booking (i.e. no walk ups).
   • (b) External bookings not to be taken at times when occupancy of the camping and caravan park is booked to exceed 80% occupancy. (As a minimum this would include the summer school holidays, Easter holidays and Labour Day long weekend in March).
   • (c) The availability of on-site parking to be advised in writing at the time of booking. The person booking the facility must provide such advice to all of their guests attending the facility, along with a clear statement that parking must not take place on the road verge.
   • (d) The entry boom barrier to be either left up prior to the booing period or staff made available to facilitate entry to the site by lifting the barrier as guests arrive.
   • (e) When the facility is booked, staff are to vacate the line marked area adjacent the administration building, parking further within the site.

When approved, the plan will be endorsed and will then form part of the permit. Management of parking must be in accordance with the plan, to the satisfaction of the Responsible Authority.

1. All stormwater must be retained on site or disposed to a legal point of discharge to the satisfaction of the responsible authority.

1. This permit will expire in accordance with section 68 of the Planning and Environment Act 1987, if one of the following circumstances applies:
   • (a) The development is not started before 2 years from the date of issue.
   • (b) The development is not completed before 4 years from the date of issue.

In accordance with section 69 of the Planning and Environment Act 1987, the responsible authority may extend the periods referred to if a request is made in writing before the permit expires, or within 6 months of the permit expiry date, where the development allowed by the permit has not yet started; or within 12 months of the permit expiry date, where the development has lawfully started before the permit expires.

---End of Conditions---

[1] I have considered the submissions of all the parties that appeared, all the written evidence, all the exhibits tendered by the parties, and all the statements of grounds filed. I do not recite or refer to all of the contents of those documents in these reasons.

[2] Finished floor levels and overall building height; urban and policy context; fencing and landscaping; car parking and access.

[3] Pizer's Annotated VCAT Act, 4th Edition, JNL Nominees Pty Ltd 2012.

[4] Save Our Seat Inc v Mornington Peninsula SC (Includes Summary) (Red Dot) [2014] VCAT 1494.

[5] Such as referred to in Ms Greer's statement of evidence.

[6] For example, conditions 3 and 28 referred to in Exhibit RA63 (including requiring an Overflow Parking Plan).

[7] Mr Watters submitted that it is relevant to take into account because it was a matter that the Responsible Authority took into account relying on section 84B(1)(a) of the Planning and Environment Act 1987.

[8] This point is underscored by provisions such as Section 84(3) of the Planning and Environment Act 1987 which expressly excludes the Tribunal from requiring it to take account of exempted matters. While car parking is not exempted in this proceeding, it is, we think, self-evident the fact that no permit is required means that to assess car parking space numbers would be to take account of a matter that cannot be properly before us.