Mr Alex Alonaritis of Adex Building Design and Drafting Services and Mr Ian McGregor.

Mr Henry Jackson, Solicitor of Deacons. He called written and oral evidence from Mr David Wood, Traffic Engineer of Mornington Peninsula Services Pty Ltd.

1 Ian McGregor asked the Tribunal to make a decision on his permit application after the Mornington Peninsula Shire Council failed to make a decision within the prescribed timeframe. Despite a failure being deemed a refusal in accordance with Section 4(2)(d) of the Victorian Civil and Administrative Tribunal Act 1998, Council subsequently decided that if it had made a decision in the prescribed time, it would have approved the construction of two factory buildings on land at 13 Lyall Street, Hastings.

2 The site is located on the east side of Lyall Street and has an area of 2023m2. It has frontage to both Lyall Street and Mayne Avenue, although Mayne Avenue is unformed. The site is within small area of land zoned Industrial 3 positioned between Marine Parade, a Special Use Zone to the east and Westernport Bay. Much of the land in the Industrial 3 Zone is vacant although subdivided into smaller lots. The property adjoining to the south is developed with a factory building and dwelling. Land adjoining to the north is vacant, although a large panel beating business is located beyond that close to Marine Parade.

3 The proposal involves the construction of two rectangular factory buildings, one behind the other and separated by a gravelled car parking area. The buildings each measure 18 metres by 12 metres and have a maximum ridge height of 5.8 metres. They are metal clad and have an industrial appearance. The front building is setback 10 metres from the front boundary and both buildings are set back from the southern side boundary by 3 metres. A driveway is located along the northern boundary and provides access to both factory buildings. Landscaping is provided in the front setback, at the rear and along the two side boundaries.

4 The site is zoned Industrial 3.[2] No overlays apply to the site. A number of state and local planning policies were highlighted for my consideration[3].

5 I inspected the site and locality prior to writing my decision. Documents submitted at the hearing have been retained on the Tribunal file.

Amendment to the name of the applicant for review

6 I agreed to amend the name of the applicant for review from Adex Design to Ian McGregor.

7 This case raises two key issues - the layout of the site and the most equitable means of funding desirable road upgrading works.

8 Although the proposal is a relatively straightforward development comprising two simple factory buildings with associated car parking, landscaping and drainage works, approving the development despite the many shortcomings identified at the hearing may not result in an acceptable outcome. I consider that Council's decision to support the proposal but with quite extensive alterations to car parking, vehicle turning areas and loading areas will mean that the layout of the proposal will need to be revamped to the extent that there will be a significant difference to the layout shown on the Revision 2 plans under discussion at the hearing. Car parking areas and truck turning areas will need to be relocated, more car spaces will need to be provided and part of the driveway widened. There may also be a need to relocate the buildings to provide for these car parking and turning areas. Such a redesign may in effect transform the layout.

9 On my inspection I noted the proximity of the site to the tidal estuary and the lower height of the review site compared with the land to the north. The draft conditions prepared by Council included requirements in relation to drainage and submission and approval of an environmental management plan. Although there was little discussion about these matters at the hearing and no evidence was called, compliance with these conditions may also result in changes to the layout or require additional information being included on application plans.

Necessity for, and funding of, road upgrading works

10 I do not dispute the evidence of Mr Wood about the current condition of Lyall Street or of the impact of additional traffic resulting from further industrial development in Lyall Street. Nor do I dispute the desirability of upgrading both Lyall Street and the intersection with Marine Parade to the north of the site to cater for any such additional industrial traffic.

11 On my inspection I drove along Lyall Street and Thornhill Street in both directions and utilised both the Lyall Street and Thornhill intersections with Marine Parade to exit and enter Lyall Street. I noticed that the panel beating business at No 15 has undertaken some patching to the road surface near its driveway but that in other respects Lyall Street/Thornbill Street are typical 'rural' roads consisting of a one vehicle wide strip of bitumen with grass/gravel verges (I exclude from my comments the eastern end of Thornhill Street beyond its intersection with Lyall Street). The road reserve contains some larger vegetation, which at the northern end near Marine Parade appears to comprise remnant native vegetation. With the exception of the panel beating business, there is very little vehicle activity along Lyall Street from either direction which no doubt reflects the existing undeveloped or underdeveloped land along Lyall/Thornhill Streets and the fact that these streets do not provide access to other roads or are shortcuts to other areas. A scout hall in Thornhill Street presumably generates some traffic, although at quite discrete times associated with activities occurring at the hall.

12 Having accepted Mr Wood's evidence about the condition of Lyall Street and the desirability of undertaking upgrading works, the fundamental issue then is: how are the works to be funded? In essence there are a limited number of ways that works can be funded - through Council's general works program, by requiring individual land owners to contribute at the time permits are granted for new development, by a separate rate scheme levied against all landowners or by introducing a Development Contributions Plan Overlay.

13 Of these options, the one I favour least is the one adopted by Council in this case. In my view it results in a very ad hoc and inequitable provision of essential infrastructure based on who happens to first seek planning permit approval. The works sought by Council in draft Condition 3 are extensive and would benefit all land owners along Lyall Street not just the permit applicant. Clearly one of the major beneficiaries would be the existing panel beating business to the north; a business that obviously generates a lot of vehicle traffic and one which appears to have not been required to undertake any significant road works outside the property.

14 Mr Jackson went to some lengths to justify inclusion of the road work conditions and I agree with him that if such works were necessary (or even desirable, appropriate or essential) then I would have no hesitation including such conditions. For example, if a factory development on the review site was only able to obtain access from the completely undeveloped road reserve to the east known as Mayne Avenue, then construction of a road would be absolutely necessary (desirable, appropriate or essential) for the development to proceed and road construction conditions should be included in any permit granted.

15 If the industrial areas along Lyall and Thornhill Streets are to be developed to their full potential then a more strategic approach needs to be taken to the provision of all forms of infrastructure - not just roads. The road and intersection upgrading works suggested by Mr Wood could be incorporated in a more comprehensive program dealing with the whole lengths of Lyall and Thornhill Streets south and east of Marine Parade, and also include drainage and other infrastructure. Mechanisms exist to ensure that the costs of such works are apportioned equitably to all landowners benefiting from such works and that the works are 'rolled out' in a logical and practically useful way.

16 I have refused this application because of the uncertainty surrounding the final layout of the site as a result of the amended plan conditions proposed by Council. Discussion at the hearing and my site inspection has convinced me that the development may well look very different if redesigned to accord with those draft amended plan conditions. The car parking areas and truck turning areas will need to be relocated and there may well be a need to relocate the buildings as well. Such a redesign may in effect transform the layout and I consider it far preferable to start with a clean sheet of paper and a new permit application so that Council is in a position to fully assess the new layout.

17 It will be clear that I do not support the inclusion of conditions requiring the permit applicant to fund extensive road construction from outside his property to the Marine Parade intersection. I do not doubt that such works will be necessary as more development takes place in Lyall and Thornhill Streets, but a more strategic and more equitable approach needs to be adopted so that all beneficiary landowners are involved in funding any such upgrading works.

Having regard to the above, I will therefore order that no permit issue.

[1] In accordance with Section 4 (2) (d) of the Victorian Civil and Administrative Tribunal Act 1998 a failure to make a decision is deemed to be a decision to refuse the application.

[2] Industrial 3 Zone provisions are at Clause 33.03. A permit is required to use the land for industry and for buildings and works (Innominate uses also require a permit).

[3] Relevant provisions include Clauses 11, 12, 14, 15.05, 17.03, 18.09, 19.03, 21 (various), 22.01, 52.06, 52.07, 52.10 and 65.