c/- Efi Condovrakis, Nicholas Voulanas, Susan Mary (Sally) Dammery, Evan & Yanth Roiniotis, Anthony & Aman King, Alison Welsh, Tomaso Di Lallo, Jeffrey Maimone, Donna and Peter Skarlatos, Glenn Crombie, Dr David Dammery, Vic Roads - Metropolitan South East Region

Conveniece Restaurant, access to road zone catgory 1, dispensation of loading zone and bicycle parking.

3rd, 4th and 5th December 2008 and 28th and 29th January 2009

McDonalds Australia Ltd v Stonnington CC [2009] VCAT 749

1. Leave is given to the permit applicant to substitute for the permit application plans, the following plans filed with the Tribunal:

DA01 & DA02, DA04, DA05, all Amendment B, and DA06.

1. The permit application is amended to include a request for planning permission pursuant to clauses 52.07, 52.29, and 52.34 of the Stonnington Planning Scheme
2. The order of the Tribunal is that the decision of the Responsible Authority is set aside and that the Tribunal directs that a permit be granted in accordance with the conditions appended to this decision as Appendix A.
3. The permit allows:
   • Use and development of the land at 100-102 Waverley Road, Malvern East for a convenience restaurant.
   • Create or alter access to a road within a Road Zone Category 1.
   • Reduce or waive provision of loading and unloading requirements.
   • Vary provision of bicycle facilities**.**
4. The Responsible Authority is directed to issue a permit in accordance with this order under the provisions of Section 85(1)(b) of the Planning and Environment Act 1987.

Mr Michael Wright, QC, Barrister and Mr Christopher Townsend SC Barrister instructed by Rigby Cooke. They called to give evidence Mr Stuart McGurn, Town Planner of Fulcrum Planning, Mr Steven Hunt, Traffic Engineer of Cardno Grogan Richards and Mr Tim Biles, Urban Designer, Message Consultants.

Mr Adrian Finanzio, Barrister by direct brief. He called Debra Donald, Traffic Engineer of Andrew O'Brien and Associates to give traffic evidence and Marco Negri of Contour Planning to give planning evidence.

Ms Roz Wilson, Solicitor and Urban Planner by appeared direct brief on behalf of a number of respondents whose names were provided to us. She called Mr Brownlie, Traffic Engineer from Ratio Consultants. Also Ms Sarah Fagan represented by Mr Geekie and Justin and Christine Hogan appeared in person.

A bin corral is located directly south of the al fresco dining area accessed from the drive through and car park area.

The proposed convenience food restaurant is to operate between 6.00 am and 11.00 pm seven days a week.

The building design is quite contemporary with glazing and modern materials to much of the Waverley Road frontage. The external wall materials used is a mix of timber, articulated painted sheeting and aluca bond cladding. A canopy is provided along part of the Waverley Road frontage.

The design is representative of the contemporary McDonalds store configuration being developed throughout Australia. Pedestrian access to the store is via a door directly from Waverley Road as well as an entry off the driveway access and car park.

At the commencement of the hearing Ms Wilson sought leave to have a number of parties joined to this proceeding. There being no objection to this we joined the parties.

Mr Wright sought leave to substitute amended plans dated 8th October 2008 for the application plans. The plans had been circulated in accordance with the Tribunal's practice notes. There being no objection the Tribunal substituted the amended plans for the application plans.

Mr Wright also sought leave to amend the permit application to include seeking permission for the application pursuant to Clause 52.29 (Access to Road Zone Category 1), Clause 52.34 (Bicycle Parking) and Clause 52.07 (Dispensation to the provision of a loading bay). Again there being no objection the amendments to the applications were made.

Clause 34.02-1 Use of the land for the purpose of a convenience restaurant.

Clause 34.02-4 Construction of a building and construction and carrying out of works.

Clause 52.06 - Car Parking must be provided to the satisfaction of the responsible authority.

Clause 52.07 - Reduce or waive provision of loading and unloading requirements

Clause 52.29 - Permit required to create or alter access to a road within a Road Zone Category 1

Clause 52.34 - Vary, reduce or waive provision of bicycle facilities.

Relevant Planning Scheme policies and particular clauses

Clauses 11, 12, 14, 17.01, 17.02, 18.01, 18.02, 18.03, 19.03, 21, 22.02, 22.06, 22.08, 22.09, 22.12, 22.13

We inspected the site and surrounding area on Thursday March 26 between the hours of approximately 5.30 and 6.30 pm.

The review site is effectively square in shape with a frontage to Waverley Road of 36.58 metres and a depth along Burke Road of 39.62 metres and a total area of 1449 square metres.

The review site is located on the south west corner of Waverley Road and Burke Road and a right of way off Burke Road runs along its southern boundary.

Immediately to the west of the review site is a redeveloped cinema that now is developed as a three storey residential accommodation with balconies orientated to face the review site above ground level and a ground floor café fronting Waverley Road. Further to the west is the metropolitan fire brigade premises.

To the south is a right of way with a residential dwelling on its southern side and additional residential dwellings further south.

To the east on the other side of Burke Road is a commercial property located on the corner with residential properties further south of it.

On the north side of Waverley Road is a BP petrol station.

Land along either side of Waverley Road is used for a variety of commercial purposes including shops, restaurants, offices and a developed in variety of single and two storey built forms generally built to the street frontage.

The review site is currently vacant and was previously used as a petrol filling station. Three vehicle crossings currently exist on the site.

Finally the site is well located in respect of key road and public transport networks including a bus route no. 624 along Burke Road, a tram route no. 3 along Waverley Road and Caulfield Train Station, a short distance to the south. The site is also located close to the Monash University Caulfield campus again located a short distance to the south and west.

1. The primary issues in this application essentially revolve around the question of whether the use and development of a McDonalds convenience restaurant and drive through facility is an appropriate development for the corner of two main roads within the Waverley Road neighbourhood activity centre.
2. The Responsible Authority and objectors submitted that the site is an important strategic element within the Waverley Road activity centre and that any development on the site should seek to optimise the various strategic objectives found within the Stonnington Planning Scheme. In addition these parties also argued that the site was simply too small to manage the range of traffic, parking and amenity issues that arise from the proposed development.
3. The applicant for review on the other hand submitted that the proposal is a sensitive and a responsive development for the area, one that assists in the activation of the Waverley Road activity centre. The applicant for review advocated the proposal meets the objectives of the various relevant planning policies within the scheme and importantly that the proposal represents an acceptable planning outcome.
4. During the course of the five day hearing the Tribunal heard evidence and submissions on a range of factors influencing the development of this site. We do not propose to repeat that material in this decision. All of the material presented to us has been retained on the Tribunal's file and has been considered by us in determining this matter. It appears to us that four key issues emerged from the hearing:
   • Policy implication

These included activity centre policies, appropriateness of the use in this zone and location, and the underdevelopment or lost opportunity to develop a more intensive use and development on this site. it was the Council's submission that an optimal development of the site would include a multi storey building incorporating a residential (student housing) component.

These included access and egress arrangements at this busy intersection together with potential tram queuing in Waverley Road and internal queuing at the egress crossing onto Burke Road. We were also taken in some detail to the internal traffic and pedestrian flows and safety issues relating to these matters.

Thee urban design question of whether the proposed built form, in particular its single storey nature and form, was an acceptable urban design response for this important corner.

These relate particularly to the west relating to the upper level apartment balconies and the interface with the driveway and car parking area. Concern was also raised in response to the amenity impacts on Ms Fagan's property to the east of the review site at 24 Burke Road and on Mr and Mrs Hogan's property.

1. A final issue raised in this matter was the implication of a special condition on the contract of sale that prohibits the site being used for residential purposes. We will comment on this issue later in these reasons.
2. In determining this application we believe the following four questions need to be addressed:
   • Is the proposal consistent with the statutory and strategic framework of the Stonnington Planning Scheme?
   • Will the proposal make a positive contribution to the urban design and built form character of the area?
   • Are the proposed traffic access and egress arrangements acceptable and are the parking loading and garbage collection arrangements acceptable?
   • Does the proposal have any unacceptable adverse amenity impacts on adjoining or surrounding properties?

1. The Waverley Rd Activity Centre is included within a Business 2, zone the purposes of which are primarily targeted towards a commercial rather than a retail focus. The rationale, it was submitted to us, was to limit 'as of right' retail premises within these neighbourhood centres.
2. The Waverley Road Activity Centre is identified within clause 22.09.1 as a Group 4 centre within the Council's retail policy hierarchy. Clause 22.09-1 goes on to state that group 4 centres seek to maintain a hub of retailing to serve the surrounding community but are zoned Business 2 to allow for restructuring and a wider range of office and service uses to the locate.
3. At clause 22.09-3 Retail Centres policy, it is policy that:
   • The scale and type of use proposed be consistent with maintaining a commercial centre's hierarchy, economic viability, effective land use and the character of the particular area.
   • In Group 4 centres proposals be considered on the basis that:
     • These centres cater for local and everyday retail, office and service activities and needs of the surrounding area.
     • The proposal promotes effective land use and complements the individual character of the particular centre.
4. In our view there is no inconsistency between these policy statements and the range of other policy statements contained within the Stonnington Planning Scheme. In our view the above policies set out the basic policy framework within which we will consider this application.
5. Mr Finanzio submitted that we should look at the policy framework in a much wider context and include in our consideration policies such as clause 22.08 which relates specifically to the consideration of applications for student accommodation.
6. We accept Mr Finazio's submission that all relevant policies must be considered as appropriate. We note that at Clause 11.01 of the planning scheme it is stated that:

Planning and responsible authorities must take account of and give effect to both the general principles and the specific policies applicable to issues before them to ensure integrated decision-making

1. We disagree with Mr Finanzio's submission however that the policy at clause 22.08 provides clear strategic direction that the review site is identified as a preferred location for student housing. The policy at clause 22.08 is quite broad in its identification of preferred locations for student accommodation. There are nine preferred locations identified within the map associated with clause 22.08 including the activity centre within which the review is located. Because of the general nature of the policy we do not think it can be relied on to identify individual sites within centres as sites for which the construction of student housing represents the optimal planning outcome.
2. On this factor alone we would conclude the development of this site for a convenience restaurant or for a purpose other than student housing does not represent a lost opportunity or underdevelopment of a strategically important site. In our view the circumstances of this case need to be distinguished from the Tribunal decisions relied on by Mr Finanzio such as the Doncaster Hill[1] decision. In that case the policy framework and the detailed zone an overlay provisions applied to a quite finite area and provide precise and specific direction as to what constitutes the preferred or acceptable outcome for developments in that area. The Tribunal's decision in that case to refuse to direct the grant of a permit for a development which it considered to be an underdevelopment was made in the context of the planning regime which applied to that site. The planning regime which applies to the site in this case is significantly different to that applying to Doncaster Hill.
3. Secondly, the policy issue relating to student housing also failed on closer examination of the policy statements including those statements contained within proposed amendment C75 which relates specifically to this site. Within the draft Waverley Road Urban Design Framework Plan which forms part of AM C75, the review site is contained within a precinct 5 which does not identify any specific student housing development opportunities. This needs to be compared with other precincts such as Precincts 3 and 4 which have specific references and statements supporting student accommodation within those precincts.
4. In addition the proposed DDO5 design objective under AM C75 focuses on built forms that are an appropriate scale enhance the design quality, create a more cohesive streetscape image with buildings of a consistent street wall height. We do not think that the proposed DDO5 or the amendment as a whole advances in any significant manner the Council's submission that the development of the site for student housing represents the optimal outcome for this site. We are of the view however that the proposed development does respond appropriately to the objectives of the DDO5[2].
5. Thus the missed opportunity in terms of the development of student accommodation on the site does not appear to have the strategic support so strongly advocated by Mr Finanzio in his submissions to us.
6. Both Mr Finanzio and Ms Wilson put to the Tribunal that in any event the policies of Stonnington Planning Scheme sought more intensive utilisation of key development sites. While it is not difficult to contemplate a more intensive use of this site that a convenience restaurant, the construction of a single storey, single use development of the site still results in an intensive use of the land. The proposal also successfully and activates this site at ground level (perhaps more so than student housing) and it is a use which services a local population.
7. There is no doubt in our minds that the provision of a low cost convenience food premises within close proximity to an established intensive education facility is a positive community benefit. Students both attending the education facility and or living nearby will be able to avail themselves of this facility.
8. Importantly we agree that the proposal will compliment and strengthen the role of the Waverley Road activity centre in terms of its identified service role to the local community and its infill of a currently vacant site.
9. We think the provision of parking within the site will also enhance the potential for multi purpose trips thereby adding to the economic viability of the centre.
10. We prefer the policy analysis undertaken on behalf of the permit applicant by Mr McGurn. We are satisfied that on balance the proposed development of a convenience food restaurant within a building constructed to the Waverley Road alignment is an acceptable planning outcome on this site.
11. While much of Mr Negri's evidence is not discredited we believe the weight given in his evidence to an 'optimum outcome development' rather than an analysis of the application before the Tribunal, a task which the Tribunal is required to undertake, results in us placing less weight on his evidence.
12. Finally we make the observation that the Stonnington Planning Scheme seeks to discourage the location of these types of uses away from residential zones in its discretionary use policy[3]. While exemptions do apply, it is a clear preference in that policy to locate such uses in lower order activity centres where the loss of an active retail frontage is not compromised. This view is supported by the site's inclusion in the Group 4 classification in the retail policy. The Waverley Road activity centre is not a cohesive retail centre and is unlikely to be adversely impacted upon by the introduction of a convenience restaurant in this location. We are satisfied that this proposal will in fact make some contribution to enhancing the viability and functioning of this centre.

1. As mentioned earlier the amended design positions the building along the Waverley Road frontage.
2. The Waverley Road activity centre has a range of built form styles along its length. Its uniting feature is perhaps the zero lot setback for much of these buildings. The urban design policy at clause 22.02 includes the following policy statements:
   • Development achieves a high standard of urban design with the selection of building materials and the construction.
   • New buildings
     • Not be significantly higher or lower than the surrounding buildings.
     • Be orientated to match the alignment of existing buildings in the street.
     • Setbacks, especially the frontage setback be consistent with those of adjoining buildings such as buildings in retail areas generally built to the street.
     • Parts of the building over two storeys and any roof garden to be setback behind the façade to minimise impacts on the streetscape.
     • Forms and the materials used reflect and complement this character of nearby buildings in the street.
3. More detail and restrictive sets of urban design principles are contained within the draft Urban Design Framework Plan for the Waverley Road centre. While this is not a seriously entertained proposal, it does assist in understanding what is the preferred form of development and more importantly for the review site is identified as mentioned earlier in precinct 5 of the framework plan as an important redevelopment opportunity that could make a significant contribution to the appearance and activity of the centre.
4. The framework plan encourages ground floor levels to be activated in terms of both land use and visual terms.
5. Mr Biles gave evidence that Waverley Road activity centre was in the process of reinventing itself as a mixed use precinct heavily influenced by the location of the Monash University Caulfield campus nearby.
6. Mr Biles submitted that despite this site being identified as a potential three storey building site within the framework plan he considered that in the context of the corner location and the backdrop of the former cinema building, now the residential apartments, and through the use of similar materials, the proposed building holds the corner and activates it. Mr Biles submitted the proposal makes a number of positive contributions to the urban form of this area through:
   • It is a use that will activate the corner and the street with both pedestrian and vehicular activity.
   • It is built to the frontage of Waverley Road and has a high degree of visual permeability and connection to the street.
   • It enhances passive surveillance of the street and precinct making it feels safer to local residents and customers.
   • It has a building form that is modern in appearance and well removed from the generic box that characterised fast food outlets in a former era.
   • It has limited points of ingress and egress and places its car parking to the rear of the site.
7. We agree that the treatment of Waverley Road abuttal is acceptable. The two storey form introduced to the building closest to its north east corner complements both the scale of the building on the south east corner of Waverley Road and Burke Road and the three level former cinema building to its west. The transition to the lower built form is not inconsistent with the variance found in built forms along Waverley Road.
8. The activation of the Waverley Road abuttal is acceptable. While the activation of the Burke Road abuttal is limited to the building's depth along that road this is not inconsistent with what occurs at other intersections as buildings wrap themselves around secondary streets.
9. Finally in terms of the positioning of the car park area behind the building and exposed to both the apartment building to the west and the dwellings to the east side of Burke Road, our view is that such an arrangement is acceptable from an urban design perspective. We take this position on the basis that the typical pattern of development along Waverley Road is of buildings constructed to the street frontage with open areas/storage areas located to their rear.
10. In addition the absence of a physical form directly abutting the balconies of the apartment building maintains the openness of the view corridor. On the negative side is the presence of a car park and its consequential noise, light and other activity. However any noise impacting on the apartment building is likely to be reduced by the existing three metre high wall along the common boundary and furthermore noise and other activities are likely to be an issue only during short periods of peak activity for the convenience restaurant.
11. Mr Biles recommended a number of enhancements to the design of the building including the construction of a sculpted fence along Burke Road and landscaping the perimeter of the site and in key locations.
12. Mr Negri was critical of the fact that the proposal does not achieve the three to four storeys in height envisaged in the draft Waverley Road Urban Design Framework Plan. However this framework plan acknowledged by Mr Negri himself is in its infancies and thus we place little weight on that evidence.
13. Mr Negri was also critical of the urban design outcome of introducing a crossing along the Waverley Road frontage. However as mentioned earlier Waverley Road shopping strip is not a homogenous strip centre and crossings punctuate the shopping strip along its length. Certainly within close proximity of this site is the MFB site access way and also the apartment's car park access. We are not persuaded this is a fatal urban design fault.
14. We are satisfied that the proposed design is consistent with the urban design objectives of the Stonnington Planning Scheme.

1. Three traffic experts gave evidence before the Tribunal in this matter. It is significant that VicRoads has not objected to the proposed access arrangements.
2. The key issues identified by each of the traffic engineers related to access and egress issues, particularly the egress onto Burke Road. Other issues identified were queuing in front of and behind the trams travelling along Waverley Road, internal circulation and potential conflicts between drive through patrons and on site parking patrons, and pedestrian safety within the site.
3. Each of the traffic engineers also analysed the loading and garbage collection facilities within the site.
4. It was generally agreed between the experts that the provision of 17 car spaces within the site to service the proposal was sufficient based on empirical data and the number of proposed seats.
5. What is of concern in particular to Mr Brownlie and Ms Donald was the absence of detail in terms of collection of garbage and loading facilities, the allocation of a waiting bay, the provision of and number of bicycle spaces and their position, and circulation conflicts.
6. In addition both Mr Brownlie and Ms Donald were very critical of the egress arrangements to Burke Road in particular the capacity to make right hand turns into Burke Road and the potential conflicts that would occur to the circulation of the drive through traffic if traffic banked up within the site.
7. Detailed gap analysis including video footage was produced by Mr Hunt during the course of the hearing and circulated to other parties. What was made clear to the other parties is that Waverley Road crossing will be an access only point and the Burke Road crossing would be an egress only.
8. While there was a divergence of opinions between the traffic experts, what is clear is that this site will present difficulties in terms of access and egress to any development on the site.
9. What was also clear in our view is that the capacity to manage traffic and parking issues and other issues such as unloading and garbage collection within the site are matters that can generally be managed through a traffic management plan for the site. It was also submitted to us that McDonalds with their wealth of experience in operating convenience restaurants are very experienced in managing these matters and are well placed to control these issues.
10. Mr Hunt conceded the internal arrangement of the traffic movement was less than optimal but that was not fatal to the development and because of the effectively low speed environment within the car park area, resulted in these movements being acceptable. Mr Hunt conceded that some improvements were necessary within the car park circulation including the splaying of both the north west and south west corner of the building to improve sight distance and pedestrian safety.
11. Mr Hunt also demonstrated how loading and unloading can be undertaken within the site and produced swept paths diagrams detailing rigid vehicle movements within the site. In order to achieve this it will be necessary to barricade some of the car parking spaces during the loading and picking up of garbage however this is not an unusual occurrence within convenience premises managed by McDonalds.
12. In our view the most contentious issue in terms of traffic is the capacity to turn right out of the site onto Burke Road.
13. While Mr Hunt submitted this could be achieved satisfactorily we have our own concerns particularly during the peak pm period. We believe if McDonalds can manage the range of traffic and parking issues suggested within the site satisfactorily then a requirement to prohibit right hand turns during peak periods Monday to Friday should not be an issue. We are of the view that during this time vehicles wishing to head south will simply turn left then turn left into Waverley Road and again left at Dandenong Road Princess Highway.
14. We agree with Mr Hunt that the low speed environment of the car park is a positive element in controlling what would otherwise be unacceptable conflicts.
15. A number of matters of design detail were raised during the evidence of the traffic engineers. These included the provision of a roller door to the corral area to minimise conflict with the drive through patrons and the provision of two exit lanes to the Burke Road exit (One marked left hand turn only and the other marked right hand turn only).
16. We also believe it is instructive that VicRoads have not objected to the proposal and consent to a permit being issued subject to conditions.
17. Having heard the evidence and inspected the site we are satisfied that traffic and parking issues can be satisfactorily managed through an on site traffic management plan and the restrictions of a right hand turn movements during the pm peaks will assist in that management.

1. Amenity impacts to neighbouring and nearby properties were not strenuously contested by the Responsible Authority or Mr Negri in his evidence. Ms Fagan however, the owner of 24 Burke Road through Mr Geekie made a detailed and thorough submission raising concerns on the amenity impacts to her property. Before dealing specifically with Ms Fagan's concerns we wish to address the amenity impacts on no.92 Waverley Road and the impacts of the property to the south at 21 Burke Road.
2. In terms of 92 Waverley Road this property is within a Business 2 zone. the Tribunal has consistently found over many years that residents of dwellings located in a commercial area are not able to legitimately anticipate the same level of amenity protection as a property within a residential zone. Nevertheless the balconies of this property are all elevated above ground level and a solid masonry wall exists along the common boundary. While the design of these balconies orientates them directly overlooking the review site the reasonable expectation will be that the view line would likely to be reduced or eliminated with any future development of the review site. In this instance the proposed development maintains the current view line largely intact which must be considered a positive outcome in terms of visual amenity.
3. Issues of visual bulk to the properties to the west and south are unlikely to be an issue given the predominantly single storey nature of the proposal and the separation distances between buildings.
4. The hours proposed are 6.00 am to 11.00 pm seven days a week. Thus activity within the site will cease at 11.00 pm and obviously reduce in its intensity from the evening peak periods. Given its business zoning the hours of operation we consider to be quite reasonable.
5. In terms of noise, the interface between 92 Waverley Road is a substantial masonry wall approximately 3 metres in height. The wall should assist in abating some noise to the west and while some noise will be evident to the people on the balconies we do not consider this is an unreasonable impact within a business zone. In terms of the interface to the south at 21 Burke Road the applicant proposes to erect a 2.7 metre high acoustic fence along the boundary with the right of way. Given the separation distances and based on the recommendations of Ms Hui of Marshall Day Acoustics we are satisfied that noise impacts should not be unreasonable for residents of 21 Burke Road.
6. In terms of noise to 24 Burke Road on the east side of Burke Road we have formed the view that the background ambient noise levels of a main road will be sufficient to ensure that any noise emanating from the site will not be unacceptable.
7. In terms of light spill there was an issue raised by Ms Fagan that particularly headlights would glare into her front windows. In our view and assessment, the crossing onto Burke Road will not be directly opposite Ms Fagan's windows but will be on an oblique angle. This may lead to headlight glare entering those windows on some occasions but given that dwellings location on a main road, we are satisfied that that will not lead to an unacceptable outcome. In any event Ms Fagan can manage that issue to some extent by either installing blinds and or planting shrubs in front of the window to diffuse any headlight glare.
8. In terms of light spill from the car park area itself, we understand that the lighting will be low level lighting typical of McDonalds car park areas. Importantly the car park lights will be turned off outside operating hours and the car park itself will be locked outside operating times.
9. We believe a management plan should be developed and included in any permit issued to ensure the management of litter, noise and light spill is properly managed and again this sort of management plan is not an uncommon requirement for these types of premises.
10. Ms Fagan also took issue with the impact on the character of the area. However, while her property is within a residential 1 zone, the review site is within a business 2 zone and the character of such a zone, as we have discussed earlier is consistent with the form of development proposed in this application. In many ways the character of what will be observed from 24 Burke Road will not significantly alter from the current position and in our view if anything may be improved upon given the current view of a vacant derelict site.
11. Ms Fagan's other concerns in terms of parking and traffic have been dealt with earlier in these reasons.

1. Given we have formed the view that the proposal is an acceptable planning outcome on its planning merits we do not need to address the question of whether the special condition on the contract of sale which prohibits the use of the land for any residential purposes, fetters our decision making. Clearly this is matter which would necessitate a determination in circumstances where a residential use of the site was proposed. This is not the case here.
2. We do however make the observation that as raised by Mr Biles that approval of this development given its effective small footprint and its retention in a single ownership does not eliminate a more intensive development taking place on the site at a future date, if the circumstances warrant such a redevelopment.

1. It follows from the above reasons that it is the Tribunal's conclusion that the decision of the responsible authority should be set aside and a permit be granted.
2. In deciding the conditions to be included on the permit we have had regard to the draft conditions provided to the Tribunal by the responsible authority and the submissions and evidence of the parties in addition to the matters which arise from these reasons.

1. Before the development starts, three (3) copies of 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. The plans must be generally in accordance with the plans substituted for the VCAT hearing dated 8-10-08 but modified to show:
   • (a) Detail the positioning of a sign restricting right hand turn movements from the Burke Rd crossing between 4pm and 6pm Monday to Friday.
   • (b) details and location of all lighting that will be externally visible;
   • (c) location and design of any proposed utility supply meters/ boxes/substations;
   • (d) details and location of all service equipment, including mechanical ventilation located outside and above the building and screened as part of the design of the building;
   • (e) a detailed schedule of the external building materials, colours and finishes, including paving, with reflectivity of glass and finishes used in the building to be no greater than 15%;
   • (f) a Landscape Plan in accordance with Condition 5;
   • (g) the Waverley Road dining room entrance door to be designed so it cannot open out onto the footpath;
   • (h) doors from the 'Corral' area designed to as not to open out onto the drive through accessway;
   • (i) eight (8) bicycle parking spaces on the land including at least two visitor spaces.
   • (j) disabled access requirements in accordance with AS 1428 and Disability Discrimination Act 1992 including any consequential modifications to the building or site layout necessary to comply with this condition.
   • (k) Waste Management Plan in accordance with Condition 23, including any consequential modifications to the building or site layout necessary to comply with this condition; and
   • (l) Modifications to the Waverley Road ingress crossover, Burke Road egress crossover, drive-thru aisle (including provision of splays to the northwest and southwest corner of the building and relocation of customer order point) and traffic signs generally in accordance with Cardno Grogan Richards Drawings 1A, 1B, 2A, 2B and 3 attached to the Supplementary Report to VCAT of Stephen Hunt dated 16 December 2008.and any further modifications required by VicRoads or Yarra Trams.
   • (m) Details of sculpted fence treatment along the Burke road car park interface generally in accordance with Timmins and Whyte architectural drawing No. DA-05 Amendment E (West Elevation- "D") Indicative Fence Design (Burke Road).
   • (n) Details of access restriction devices proposed for restricting access to the car park outside operating hours.
2. The development and layout of the site as shown on the endorsed plans to accompany the permit must not be altered without the written consent of the Responsible Authority.
3. Once the development has started it must be continued and completed to the satisfaction of the Responsible Authority.
4. Right hand turn movements from the Burke Rd crossing are to be prohibited between 4pm and 6pm Monday to Friday without further the consent in writing of the responsible authority.
5. Before the development starts, a Landscape Plan prepared by a landscape architect or suitably qualified or experienced landscape designer to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the Landscape Plan will be endorsed and will then form part of the permit. The Landscape Plan must be drawn to scale with dimensions and three copies must be provided showing:
   • (a) details of surface finishes of pathways and driveways;
   • (b) a planting schedule of all proposed trees, shrubs and ground covers, including botanical names, common names, planting sizes, sizes at maturity, and quantities of each plant;
   • (c) landscaping and planting within all open areas of the site; and
   • (d) the extent of any cut, fill, embankments or retaining walls associated with the landscape treatment of the site.
6. Before the use starts, the landscaping works shown on the endorsed plans must be carried out and completed to the satisfaction of the Responsible Authority.
7. The landscaping shown on the endorsed plans must be maintained to the satisfaction of the Responsible Authority, including that any dead, diseased or damaged plants are to be replaced.
8. Any poles, service pits or other structures/features on the footpath required to be relocated to facilitate the development must be done so at the cost of the applicant and subject to the relevant authority's consent.
9. Except with the further consent of the responsible authority all services to the subject land and buildings approved as part of this permit must be provided underground to the satisfaction of the Responsible Authority.
10. Except for crossovers the level of the footpaths must not be lowered or altered in any way to facilitate access to the site.
11. The use may only be open to the public between the hours of 6.00am and 11.00pm on any day.
12. Before the use starts, the areas set-aside for parked vehicles and bicycles and access lanes as shown on the endorsed plans must be:
    • (a) constructed;
    • (b) properly formed to such levels that they can be used in accordance with the plans;
    • (c) surfaced with an all weather seal coat;
    • (d) drained and maintained;
    • (e) line marked to indicate each car space and all access lanes;
    • (f) all safety barriers, keep clear signs, directional signage, painting and bollards installed and fully operational;

all to the satisfaction of the Responsible Authority.

1. All the car spaces, access lanes and driveways must be made available for customers and staff of the proposed use during all trading hours (except at times of, and to the extent required for, loading and unloading of delivery and waste collection vehicles) and no fees may be imposed for the use of these spaces.
2. The loading and unloading of goods from vehicles and the delivery of goods to and from the premises must at all times be conducted entirely within the site and in a manner limiting interference with other vehicular traffic.
3. Before the use starts, any disused or redundant vehicular crossing must be removed and the area reinstated as standard footpath and kerb and channel at the permit holders cost to the approval and satisfaction of the Responsible Authority.
4. Before the development starts, a report for the legal point of discharge must be obtained from Council and a drainage design for the development must be prepared by a suitably qualified Engineer prior to a building permit being issued. The drainage must be constructed in accordance with the Engineer's design.
5. External lighting must be designed, baffled and located so as to minimise any adverse effect on adjoining land to the satisfaction of the Responsible Authority.
6. The use and development must be managed so that the amenity of the area is not detrimentally affected through the:
   • (a) transport of materials, goods or commodities to or from the land;
   • (b) appearance of any building, works or materials;
   • (c) emission of noise, artificial light, vibration, smell, fumes, smoke, vapour, steam, soot, ash, dust, waste water, waste products, grit or oil;
   • (d) presence of vermin.
7. The provision of music on the premises must be limited to background music.
8. The collection of wastes and recyclables from the premises (other than normal Stonnington City Council collection) may only be conducted between the hours of 7.00am and 8.00pm.
9. Goods must not be stored or left exposed outside the building so as to be visible from any public road or thoroughfare.
10. Adequate provision must be made for the storage and collection of wastes and recyclables within the site. This area must be appropriately graded, drained and screened from public view to the satisfaction of the Responsible Authority.
11. Before the development starts, a Waste 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 will then form part of the permit. The Waste Management Plan must include:
    • (a) dimensions of waste areas;
    • (b) the number of bins to be provided;
    • (c) method of waste and recyclables collection;
    • (d) method of presentation of bins for waste collection;
    • (e) sufficient turning circles for the waste collection vehicles to drive out in forward gear; and
    • (f) strategies for how the generation of waste and recyclables from the development will be minimised.
12. The waste collection from the development must be carried out in accordance with the endorsed Waste Management Plan, to the satisfaction of the Responsible Authority.
13. No more than 63 seats may be available at any one time to patrons of the premises, without the written consent of the Responsible Authority.
14. Noise emanating from the premises must not exceed the permissible noise levels in accordance with State Environment Protection Policy (Control of Noise from Commerce, Industry and Trade) No. N 1, to the satisfaction of the Responsible Authority. Any works required to ensure noise levels are in compliance with policy, or maintain noise levels in compliance with this policy must be completed within 1 month of receipt of a written request of such from the Responsible Authority.
15. No form of public address system (except for the customer ordering system forming part of the drive through service) may be installed so as to be audible from outside the building to the satisfaction of the Responsible Authority.
16. No plant, equipment, services, architectural features or structures of any kind, including telecommunication facilities, other than those shown on the endorsed plans are permitted above the roof level of the building unless otherwise agreed to in writing by the Responsible Authority.
17. Utility installations must not be located within the front landscape setback to any road except as shown on the endorsed plans without the written consent of the Responsible Authority.
18. The provision of fire services within the landscape setback areas must be located and screened to the satisfaction of the Responsible Authority.
19. Before the use starts, a mechanical engineering report prepared by a suitably qualified person must be submitted to and approved by the Responsible Authority. The report must:
    • (a) describe the odour emissions systems that will be installed on the site; and
    • (b) demonstrate how the relevant odour emission standards will be complied with.
20. Before the use starts, a Patron 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 will then form part of the permit. All activities forming part of the use must comply with the endorsed Patron Management Plan. The Patron Management Plan must include:
    • (a) staffing and other measures including security monitors designed to ensure the orderly arrival and departure of patrons;
    • (b) signage to be used to encourage responsible on and off-site patron behaviour;
    • (c) the training of staff in the management of patron behaviour;
    • (d) staff communication arrangements; and
    • (e) a system notifying the police or security company if inappropriate behaviour occurs.
    • (f) Any traffic or parking restriction requirements to be implemented on site.
21. Rubbish containers shall be provided around the site to the satisfaction of the responsible authority. on each day that the premises are open for trading to the public, the operator must on at least one occasion, send a litter patrol undertake collection of any litter emanating from the site:
    • (a) Within the car park and landscape areas of the site.
    • (b) On the south side of Waverley road footpath for a distance of 100 m south of the Waverley Road intersection.
    • (c) On the west side of Burke road footpath for a distance of 100 m south of the Waverley Road intersection.
22. Pedestrian and vehicular access to the site must be restricted outside operating hours to the satisfaction of the responsible authority.

1. Signs must be provided to re-enforce the dedicated entry and exit points to the site, to the satisfaction of the Responsible Authority.
2. Line marking must be provided to direct and control the flow of traffic within the site, to the satisfaction of the Responsible Authority.
3. The edges of the vehicular crossovers must be angled at 60 degrees to the road reserve boundary, to improve entry and exit conditions, to the satisfaction of the Responsible Authority.
4. Redundant vehicle crossovers must be removed and the footpath, nature strip and kerbing reinstated to the satisfaction of the Responsible Authority.
5. No parking shall be permitted along the Waverley Road frontage of site.
6. A delivery vehicle schedule that is outside peak operating times must be prepared to the satisfaction of the Responsible Authority.
7. The developer must pay the full cost of all works including service relocations, road safety devices, pavement markings, service relocations, civil works, and other costs that may arise as a result of the proposed development.

1. This permit will expire if one of the following circumstances applies:
   • (a) the development is not started within two years of the date of this permit;
   • (b) the development is not completed within four years of the date of this permit; and
   • (c) the use is not commenced within five years of the date 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] Doncaster road Property Partnership v Manningham CC Victorian Civil and Administrative Tribunal reference No. P1769/2004, 8 December, 2004.

[2] We note that the existing DDO5 is an interim control and expires on 31 March, 2010. This control does little more than set a building height limit of 15 m.