Metaxas Architects v Mornington Peninsula SC [2009] VCAT 2051 (5 October 2009)

Application under section 79 of the Planning and Environment Act 1987 for review of the failure to grant a permit within the prescribed time.

Metaxas Architects v Mornington Peninsula SC [2009] VCAT 2051

The decision of the Responsible Authority is set aside. In permit application P08/3208 a permit is granted and directed to be issued for the land at

323 to 329 Point Nepean Road and 3 & 5 Heales Street, Dromana. The permit allows:

1. the construction of a 3 storey building for dwellings (with ancillary gym and pool), restaurant and day spa;
2. the use of the land for restaurant and day spa;
3. the sale and consumption of liquor;
4. the reduction in the number of required car spaces and in the dimensions of the loading bay, and;
5. the associated removal of vegetation;

in accordance with the endorsed plans and subject the conditions set out in Appendix A..

Mr Jeremy Gobbo QC with Mr Peter O'Farrell Barrister instructed by direct brief..

1. This is an application to review the failure of the responsible authority to grant a permit within the prescribed time in respect of a permit application for Tourist and residential facility comprising dwellings, restaurant, day spa and associated facilities, at 323 to 329[1] Point Nepean Road and

3 & 5 Heales Street, Dromana. The responsible authority ultimately decided that had it not been for the application for review it would have refused permission for the following reasons: 1. The proposal fails to meet the requirements of clause 22.12 and related local policy particularly as no local need has been demonstrated warranting such a large restaurant and the proposed commercial Day Spa. 2. A satisfactory comprehensive contextual architectural and urban design analysis of the project's location within its surrounding neighbourhood has not been provided to the satisfaction of the responsible authority. 3. The proposal is an overdevelopment of the site having regard to the minimum frontage and side setbacks and areas provided for planting especially of upper canopy trees. In addition, the scale, bulk and height of the proposed buildings are excessive and will have a dominating impact upon the streetscape and surrounding area. 4. The proposal does not provide for adequate on site parking and a proper basis does not exist to vary the requirements of clause 52.06. No visitor parking is provided on site. 5. The proposal fails to properly respond to the requirements of clause 19.03 and related local policy and does not produce an attractive architectural outcome that fits with the streetscape and existing neighbourhood character. In particular, the proposal fails the objectives of clause 55.02-1 of the Mornington Peninsula Planning Scheme in that the design neither respects the existing neighbourhood character nor responds to the features of the site or the surrounding area. 6. The proposed layout fails the objectives of clause 55.05-3 of the Mornington Peninsula Planning Scheme in that the design will result in a poor level of internal amenity for the future occupants of the dwellings by not providing sufficient natural daylight to bedrooms. 2. At the commencement of the hearing Mr Gobbo applied to amend the permit application by the substitution of amending plans as foreshadowed by notice given in accordance with the Tribunal's practice requirements. No person opposed the amendment of the permit application in this way, and the Tribunal ordered the amendment of the permit application in accordance with Gobbo's request. 3. The parties and the witnesses at the hearing of the application for review relied on both written and oral submissions and a number of photographs, plans and other documents were tendered to the Tribunal. The Tribunal inspected the subject land and its locality.

1. The subject land is an "L" shaped site located on the south east corner of the intersection of Heales Street with Point Nepean Road in Dromana[2]. The land is flat and makes a limited contribution to a "landscaped character". The Location, Cadastral and Zoning Map set out above should be used to understand the site context of the land.
2. Moving from east to south the mix of land uses presently accommodated on the land in one and two storey buildings is as follows:
   • A small shop, automotive upholsterer and dwelling at 323 to 327 Point Nepean Road;
   • A restaurant with tourist accommodation at 329 Point Nepean Road
   • Tourist accommodation[3] at 3 Heales Street, and
   • A dwelling at 5 Heales Street .
3. In the immediate vicinity of the land there is:
   • To the north the Dromana beach and foreshore across Point Nepean Road;
   • To the east on Point Nepean Road a small police station and residence on the corner of McCulloch Street at 321 Point Nepean Road[4];
   • To the east dwellings at 2A, 2, 4, 6 and 8 McCulloch Street;
   • To the south a vacant residential lot at 7 Heales Street.
   • To the west across Heales Street a7-Eleven (service station/convenience shop) at 335 Point Nepean Road;
4. The residential area south of Point Nepean Road is typical of these Mornington Peninsular villages where the post war "holiday" development still predominates. Modest houses and gardens on large suburban lots are still a norm, a character not significantly challenged by newer development with the exception of "Charlwood Chase[5]" in Verdon Street. The Dromana Shopping, a large neighbourhood activity centre[6] is some 200 metres to the east) along Point Nepean Road.

1. The proposal is for a three level resort development including 51 dwellings with associated gym, pool, ground floor restaurant and day spa which will cater to a mix of short term, visitors on holiday and permanent residents. Details of the proposal include:
   • 51 apartments (19 one bedroom, 24 two bedroom and 8 three bedroom dwellings);
   • 150 seat restaurant (331.5m2) including an outdoor dining area facing onto the intersection;
   • Day spa facility (123m2) at ground floor level which will operate on an appointment only basis with up to two staff;
   • Resort amenities including a gym and swimming pool;
   • 93 car parking spaces;
   • A loading area/bin room accessible via Heales Street;
   • Bicycle parking and storage facilities for residents.
2. The architecture and materials proposed are contemporary in character. The materials include timber paneling, timber beams, glass, stainless steel and colorbond roofing.
3. The building and the dwellings within the building are oriented towards Point Nepean Road and Heales Street with views to the bay for most. The maximum building height of 10.5 metres is at the north eastern corner scaling down to 8.575 metres on the Heales Street frontage.
4. The primary entrance to the development will be from the Heales Street/Point Nepean Road corner with further ground level entries to the apartments along the Point Nepean Road frontage.

1. The subject land is located in a Residential I Zone and is affected by the Environmental Significance Overlay(ES025 - Port Phillip Coastal Area).

1. At the commencement of the hearing I was advised that pursuant to section 52(1) of the Aboriginal Heritage Act 2006 a cultural heritage management plan was required in relation to the proposal to redevelop the subject land because significant ground disturbance could not be demonstrated in respect of all of the land. As observed in Mainstay Australia Pty Ltd v Mornington Peninsula SC [2009] VCAT 145, the Tribunal cannot grant a planning permit until a cultural heritage management plan has been approved.
2. The applicants have submitted a cultural heritage management plan for consideration, by Aboriginal Affairs Victoria, the management plan has not yet been approved.
3. Because it was agreed by the parties that in this case there was little likelihood that the management plan would require significant modification of the proposal, the parties agreed that the convenient course was for the Tribunal to continue to hear the matter, and either delay its determination to the management plan was approved, or perhaps make an interim determination, delaying its final decision until the management plan was approved.
4. By letter dated 11 September 2009 the applicants forwarded to the Tribunal a copy of the approved cultural heritage management plan, the approved plan does not require any changes to the current proposal.
5. Ms Forsyth also referred to a jurisdictional issue arising from the operation of the Aboriginal Heritage Act 2006. Neither the council or any of the other parties challenged the jurisdiction of the Tribunal, and the jurisdictional issue was not argued before me.

1. The applicants argued that there are three strong policy directions relevant to this current proposal, i.e:
   • Confine development to townships;
   • Encourage housing within established areas;
   • Encourage tourist facilities within established areas.
2. The applicants submit that the current proposal responds strongly to each of these policy directions. In a sense the council and the other parties do not dispute this conclusion, rather the central issue in this application is the scale of the building in its neighbourhood context. Other issues to be dealt with later in these reasons include the size of the expanded restaurant component and the direct amenity impacts of the proposal on adjoining residential neighbours.

1. This urban design issue, the scale of the building, is not an issue where there is a single correct response. The possibility of diverging but nevertheless reasonable opinions is demonstrated in this case by the divergence of opinion between council's Design Advisory Panel and its professional planners. Broadly speaking the Design Advisory Panel pleased with the overall quality of the design, subject to some resolvable caveats while on the other hand council planners were of the opinion that the building was of an inappropriate scale in its neighbourhood context.
2. The applicants argue that the context of the proposed building is Point Nepean Road and not the residential hinterland to the south. I agree with this proposition, and think it is worthwhile to outline the character of Point Nepean Road as one approaches the subject land from the west and then moves on to the Dromana Shopping Centre a short distance to the east. This character can be described as:
   • From Permien Street and Codrington Street there is a recreational reserve containing Parks Victoria's information centre
   • From Codrington Street to Verdon Street there are community facilities centred on the Old Flinders Shire officers in a park like setting
   • From Verdon Street to Heales Street there is a small shopping centre and the 7-11 petrol station and convenience shop.
   • From Heales Street to McCullock Street is the subject land with its mix of uses described above and the small police station;
   • Beyond McCullock Street the important elements are the Uniting Church and a mansion house before you reach the western periphery of Dromana shopping centre.
3. It is interesting to note that beyond the shopping centre to the east on Point Nepean Road there has been some considerable residential redevelopment. While the original subdivision pattern is to a degree maintained and buildings are only two storey, the change in the intensity of development is nevertheless substantial and the architecture of these buildings is unprepossessing vis a vis that of the current proposal.
4. All this indicates to me that Point Nepean Road has a quite different character to that of the residential hinterland and that the subject land is a suitable site for a predominantly residential tourism based redevelopment. Moreover, it is my opinion that the mixed character of Point Nepean Road and the proximity of the land to the activity centre suggests the possibility of a more substantial change to the prevailing built form character of the land and its immediate environs on Point Nepean Road than might otherwise be the case.

1. I am satisfied that the proposed architecture is of a very high standard and appropriate to its setting. The proposal is for a large building, on a large site. The articulation of the building and the choice of material serves to soften or break down the overall mass of the building using a vernacular which is appropriate to its coastal setting.

1. It is argued by the applicant that the absence of a DDO limiting the height to two storeys, when such DDOs are extensively applied elsewhere along the Mornington Peninsula coastline suggests that a three storey building may be appropriate. Ms Hansen suggested that a three storey building might be acceptable albeit with greater setbacks than that proposed. In my opinion, as a consequence of the quality of the proposed architecture, an evidently residential three storey building is a substantial but nevertheless appropriate change to the character of development of subject land in its Point Nepean Road context.

1. Heales Street meets Point Nepean Road at an oblique angle. This geometry, exacerbated by the presence of the 7-11 on the opposite corner with its open forecourt, has the effect that when approaching the site from the west the passerby is afforded a wide angle view to both the Point Nepean Road and Heales Street façades of the proposed building. This view is not typical of more conventional intersection arrangements where the passerby has a more limited opportunity to view both the streetscapes at the one time.
2. Travelling towards the subject land from Rye I noted that this condition, that is the possibility of attaining a wide angle view to both streetscapes is something that exists elsewhere in the Point Nepean Road experience. I note also that while the building is continuous, the architects have employed a transition in scale and architectural detailing moving from the Point Nepean Road facade around the corner into Heales Street. It is undoubtedly the case that this is a very substantial change in the existing condition, but not necessarily an unacceptable change on this Point Nepean Road site so close to the Dromana shopping centre.
3. A related issue is the screened undercroft car park fronting on to Heales Street over a distance of approximately 32 metres. It is argued that this is an inappropriately inactive façade to present to Heales Street. The screened car park is indeed an inactive façade at the ground plane but the dwellings and associated balconies above provide an entirely reasonable level of surveillance and activity within the Heales Street streetscape. Moreover, the main entrance to the complex is in Heales Street and the restaurant and with its associated outdoor setting area is on the corner of Heales Street and Point Nepean Road. In my opinion these activities offset any perceivable adverse consequence of the interface between the street and the car park.
4. Taken as a whole the car park is hardly an unreasonable or overwhelming proportion of the street facing facades of the proposed building on this corner site. It is not unusual for sideages to be used for more utilitarian, less active, aspect of a building's streetscape facades.

1. Frontage setbacks at ground level vary between 4 and 8 metres with setbacks in the order of 4 and 5 metres predominating. It is undoubtedly the case that this frontage setback associated with a long continuous building represents a lesser opportunity for landscaping than is the norm in the suburban hinterland. However, if one accepts that the subject land presents an opportunity for a more intensive form of development, and if one has regard to the landscape character of private development along Point Nepean Road and the lands proximity to the shopping centre then the opportunities provided for landscaping in this case are acceptable. A somewhat deeper frontage setback, to Point Nepean Road in particular, might be desirable but not easily achieved if one's aim is to provide a more intensive tourist based outcome.
2. In this case I have had the benefit of extraordinarily comprehensive landscape evidence, in part Mr Papworth's concept is focussed on his clients own concept for a tourism based resort, but an outcome of this is that I am confident that if Mr Papworth's concepts are properly implemented, an entirely satisfactorily landscape outcome will be achieved.
3. Mr Papworth's concept included a proposal to extend the on site landscaping theme onto the road verges. A proposal opposed by the council, perhaps because of a concern that the development should not be regarded as providing adequate landscaping, because of measures implemented with the adjoining roads. I however consider that Mr Papworth's ideas are in fact worthy of consideration. It is ultimately a matter for council to decided what works are allowed in the road reserve.

1. It is undoubtedly the case that the subject proposal is overwhelmingly a residential use. While the residential component is focussed on short term accommodation for tourists, this is hardly unusual in the context of the Mornington Peninsula generally, and is an existing characteristic of residential uses on the subject land.
2. It is argued that the expanded restaurant will create an overwhelming impression that the land is used for a commercial rather than a residential purpose. One of my inspections of the land was during the early evening, and had the opportunity to view the land from the car parks and bicycle track north of Point Nepean Road. The presence of the existing Marina Cove restaurant is very obvious indeed the warm lights and the views into the interior are inviting. I think it unlikely that the proposed restaurant will have a substantially greater presence.

1. The proposal is for a large building, representing a substantial change to built form in this local context. The impacr of the building on adjoining properties is an important issue, bearing in mind that the land itself is at the interface between two different character contexts. The Point Nepean Road context and that of the residential hinterland.
2. To the north east a three storey, side façade, of the proposed building adjoins a narrow extension of the private open space for 2A McCullock Street which sits between the subject land and the police station at 321 Point Nepean Road. The setback of this three storey façade is not entirely compliant with the ResCode standard setback.
3. It is arguable that because this is a Point Nepean Road interface, and because the affected private open space is not the most important area of private open space available to 2A McCullock Street and because of the orientation of the site that this departure from the ResCode standard setback is acceptable. On the other hand, the interface is at present an entirely residential interface and there will need to be the consolidation of lots for there to be any real prospect that land adjoining the subject land to the north east will be capable of any more intensive redevelopment.
4. At this interface the proposed building comprises the access way onto Point Nepean Road at ground level and apartments in the two levels above. There was considerable debate during the hearing about whether or not this secondary access onto Point Nepean Road was desirable or warranted. VicRoads opposed this entry on the basis of their policies in respect of property access onto main roads and Ms Dunstan was concerned that it would unnecessarily encourage unsafe U turns on Point Nepean Road.
5. The speed limit across the frontage of the site is 50 kilometres per hour and the roadway median limits movement at the proposed access way to left in and left out, in this context VicRoads arguments for the deletion of this entry point based on their policy are unsustainable. There is more merit in Ms Dunstan's concern although I have some reservation about basing the decision on an assumption that drivers will behave unlawfully or unsafely.
6. Nevertheless, it is the case that on site car parking on this land will function adequately accessed from Heales Street, and the deletion of the access driveway at this point allows the building to be lowered, in this location, to a two storey building softening its impact on this north eastern interface. I therefore propose to require the deletion of the access point primarily to allow the creation of a stepped building form adjacent to this north eastern interface.

1. The car parking issue in this application is the amenity impacts of peak car parking demand associated with the proposed 150 seat restaurant. Simply put the argument is that the proposed increase from 80 to 150 restaurant patrons is substantial, and that notwithstanding an increase in the availability of on site car parking, the short fall in car parking supply is increased and that this will adversely and unacceptably affect the amenity of the abutting residential streets particularly Heales Street[7].
2. There is a difference of opinion between the traffic engineers as to size of this effect. During the evening period there will be 33 car spaces available for visitors and restaurant patrons. The engineers agree that visitor demand is five car spaces, in respect of restaurant car parking demand:
   1. Mr Symons submits that the car parking demand for restaurant should be calculated on the basis of 0.3 car spaces per seat which results in a shortfall of 17 car spaces, 10 more car spaces than the shortfall associated with the existing restaurant calculated on the same basis, and;
   2. Ms Dunstan submits that the car parking demand for the restaurant should be calculated on the basis of 0.4 car spaces per seat which results in a shortfall of 32 spaces an increase in 14 car spaces over the shortfall of the existing restaurant calculated on the same basis.
3. It is argued that while it may be common in more metropolitan locations for restaurant patrons to park in residential streets it is inappropriate to allow this loss of amenity in the Dromana context. However, I think it is likely that a restaurant on this site would rarely operate at a peak capacity outside the peak holiday period during which the level of activity in Dromana is substantially different to that which is experienced at other times of the year. I am therefore less convinced that small increases in demand for on street car parking by restaurant patrons is an unacceptable outcome.
4. Mr Gobbo advised me that his client would accept a reduction to 125 restaurant patrons. This would make the difference between the potential impact of the proposed restaurants vis a vis that of the existing restaurant quite marginal. I intend to adopt this reduced maximum patron number. At some future date the applicant could apply to increase the number of patrons to 150 persons if as I expect the peak demand characteristics of the restaurant are as closely associated with peak holiday demands.

1. The architects propose a small loading bay access from Heales Street and an indented setdown area in Heales Street which could be used for both short term parking and as an additional loading facility.
2. In my opinion the proposed small loading bay will be satisfactory for most day to day delivery requirements and that issues, such as the width of its access way, are resolvable design details .
3. In relation to the indented set down area, I accept that as drawn, it extends too close to Point Nepean Road, but subject to this caveat, I think that such a set down area would be a useful facility associated with the proposed use and development. The setdown area can easily be accommodated within the wide verge of Heales Street, it is however, a matter for council to decide whether or not such a facility should be allowed within the road reserve.

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 the Tribunal has 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. Prior to the commencement of any buildings or works, 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 amended plans circulated on 25 June 2009 but amended to show:
   • (a) The deletion of the accessway onto Point Nepean Road and the associated reconfiguration of the car park and a reduction in height of the building in this location to two storeys;
   • (b) Setbacks from the common boundary with 7 Heales Street which comply with Standard B17 of Clause 55.04 of the planning scheme;
   • (c) Floor and roof levels to Australia Height Datum (AHD);
   • (d) A schedule of colours and materials;
   • (e) The location of 70,000 litre water tanks;
   • (f) An increase in the width of the northern Heales Street accessway to provided for a separate pedestrian space;
   • (g) Reconfiguration of the "lay by" parking area so that it commences 10 metres clear of Point Nepean Road, and the addition of a notation Subject to the consent of Council;
   • (h) Any internal partitions (screening) between apartment balconies;
   • (i) Acoustic fencing along the boundary of 2 McCulloch Street increased to 2.5 metres high;
   • (j) Highlight windows on the east walls of the bedrooms of apartments 13, 14 and 15;
   • (k) The designated licensed area for the restaurant;
   • (l) The location of all plant and equipment including air conditioning;

1. Before the development starts, a landscape plan must be submitted to and approved by the responsible authority. When approved, the plan will be endorsed and will then form part of the permit. The plan must be drawn to scale with dimensions and three copies must be provided. The landscaping plan must be generally in accordance with the landscape concept plan by ERM (Drawings Ls1 to Ls5) The plan must show:
   • (a) buildings and trees (including botanical names) on neighbouring properties within three metres of the boundary;
   • (b) details of fencing and the surface finishes of pathways and driveways;
   • (c) 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;
   • (d) where practicable at least 80% of the plants selected for planting within the frontage setbacks to Point Nepean Road and Heales Street being locally indigenous species;
   • (e) a notation that any landscaping or works shown within road reserves can only occur with the separate written consent of the Council;

All species selected must be to the satisfaction of the responsible authority.

The landscape plan must also indicate that an in-ground irrigation system is to be provided to all landscaped areas.

1. Landscaping works must be carried out in accordance with the endorsed plans and must be completed to the satisfaction of the Responsible Authority prior to the initial occupation of any part of the building (or other timing agreed to in writing by the Responsible Authority).

1. The layout of the land, the size and type of the proposed buildings and works, including the materials of construction, on the endorsed plans must not be altered or modified without the written consent of the Responsible Authority.

1. Before the development starts, three (3) copies of a Construction Management Plan to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved the plan will form part of the permit. The plan must address, but is not necessarily limited to all of the following:
   • (a) Details of the staging of all buildings and works;
   • (b) Methods to prevent discharge of construction materials and sediment entering into the existing underground drainage system;
   • (c) Protection of native vegetation;
   • (d) Hours of operation of all machinery and contractors, including transportation of any fill to or from the site, will be within the following hours:
     • (i) Monday to Friday - 7:00 a.m. and 5:00 p.m
     • (ii) Saturday - 8:00 a.m. and 3:00 p.m

Under exceptional circumstances, other times, with the written consent of the Responsible Authority following 24 hours prior written advice to surrounding property owners, may be granted;

(e) The location of any transportable cabins and sheds;

(f) The location and storage of machinery on the site;

(g) The location of the building refuse points and methods for ensuring the containment of waste within the land;

(h) the parking of contractors' vehicles;

(i) A traffic plan indicating how vehicles will access the site;

(j) Security fencing and site access details;

(k) Measures to control noise and dust during construction;

(l) Arrangements to ensure that no debris is deposited on any road while vehicles are travelling to and from the site;

(m) Appropriate arrangements to ensure roads in the locality are not prejudiced or damaged by the movement of construction vehicles to and from the site;

(n) Measures to minimise any adverse impact on surrounding property owners; and

(o) The maximum number of trucks entering the site per day.

1. Before the use starts, three (3) copies of 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 form part of the permit. The plan must address, but is not necessarily limited to all of the following:
   • (a) The storage and collection of waste from the restaurant, day spa and dwellings including provision for bulk refuse collection bins or approved alternative recycling bin;
   • (b) The storage of other refuse and solid wastes in bins or receptacles within suitably screened and accessible areas to the satisfaction of the Responsible Authority;
   • (c) Designation of methods of waste collection including the need to provide for private services or utilisation of Council services;
   • (d) Waste bins not being placed or allowed to remain in view of the public;
   • (e) Appropriate areas for bin storage on site and areas for waste bin storage on collection days;
   • (f) Details for best practice waste management once the use has commenced; and
   • (g) The regular removal of waste and litter from all areas of common property.
2. Before the development starts, a project specific Environmentally Sustainable Development Management Plan (ESD Management Plan) prepared by a suitably qualified person 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 plan must be to the satisfaction of the Responsible Authority and must show and/or provide for the following:
   • (a) Energy management;
   • (b) Water conservation and re-use;
   • (c) Construction waste management; and
   • (d) Where appropriate the ESD Management Plan should:
   • (e) Identify relevant statutory obligations, strategic or other documented sustainability targets or performance standards;
   • (f) Document the means by which the appropriate target or performance will be achieved; and
   • (g) Identify responsibilities and a schedule for implementation, and ongoing management, maintenance and monitoring; and demonstrate that the design elements, technologies and operational practices that comprise the ESD Management Plan can be maintained over time.

1. Before the development starts, detailed construction plans to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. The plans must be drawn to scale with dimensions and four copies must be provided. The plans must show:
   • (a) All areas of the development being drained by means of an underground drainage system to retain a post development 1 in 10 year storm event for the critical storm duration on the property. Discharge from site must be limited to an equivalent pre-developed flow based on a 1 in 18 month storm event for the critical storm duration and connected to the existing underground drainage system near the corner of Heales Street and Point Nepean Road;
   • (b) A drainage surcharge route within the development to avoid inundation of any parts of the building;
   • (c) The access points within Heales Street, including edges of the vehicle crossings being angled at 60 degrees to the roadway to facilitate access;
   • (d) Details of the proposed vehicle crossing for the loading area, including edges of the vehicle crossing being angled at 60 degrees to the roadway to facilitate access for commercial vehicles;
   • (e) Sight distance for vehicles and pedestrians not being unduly restricted at the exit from site by fencing or landscaping works.
2. All works shown on the approved construction plans required under Condition 7 above must be completed to the satisfaction of the Responsible Authority prior to the initial occupation of any part of the development.

1. Prior to occupation of the permitted building the owner of the land must arrange for the pedestrian facilities across Point Nepean Road to be constructed in accordance with plans approved by VicRoads.
2. All redundant vehicle crossovers must be removed and the nature strip and kerb and channel reinstated to the satisfaction of the Responsible Authority.
3. Before the commencement of any works within the Point Nepean Road reservation authorised by this permit, the applicant must:
   • (a) Have first applied for and received written consent from VicRoads for those works in accordance with Section 63 of the Road Management Act 2004;
   • (b) Provide VicRoads with the name, address, business and out-of-hours telephone numbers of the principal roadworks contractor;
   • (c) At least 21 days prior to the commencement of roadworks, provide VicRoads with a Traffic Management Plan showing the proposed provision for traffic and signing for the duration of the roadworks. The Traffic Management Plan must be prepared in accordance with VicRoads' Worksite Traffic Management (Roadworks Signing) Code of Practice.
4. The applicant must engage an approved VicRoads contractor (pre-qualified at the appropriate level or as otherwise approved) to undertake all works within the Point Nepean Road reservation.

1. Before the initial occupation of the development, the areas set aside for the parking of vehicles 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 reinforced concrete, asphalt or paving;
   • (d) Drained and maintained;
   • (e) Line marked to indicate each car space and all access lanes; and
   • (f) Clearly marked to show the direction of traffic along access lanes and driveways

1. The disabled parking bays must be graded so that they comply with Australian Standards.
2. The loading and unloading of goods from vehicles must be carried out on the land.

1. The amenity of the area must not be prejudicially affected by the development and/or use through the:
   • (a) Transport of materials, goods or commodities to or from the land;
   • (b) Appearance of any buildings, works or materials;
   • (c) Emission of noise, artificial light, vibration, smell, fumes, smoke, vapour;
   • (d) Steam, soot, ash, dust, waste water, waste products, grit or oil; or
   • (e) Presence of vermin.
2. No amplified music shall be provided in the courtyard/pool area except with the prior written consent of the Responsible Authority.
3. Except with the further consent of the Responsible Authority the pool and communal area abutting the pool must operate only between the following hours of:
   • (a) Monday to Sunday 7.00 a.m. to 10.00 p.m. during daylight savings; and
   • (b) Monday to Sunday 7.00 a.m. to 8.00 p.m during the remainder of the year.
4. All goods and materials must be stored to the satisfaction of the Responsible Authority out of view or so as not be unsightly when viewed from nearby roads or lands.
5. Odour filters shall be installed and maintained to control cooking, odours, fumes and smoke to the satisfaction of the Responsible Authority so as to prevent the emission of odours outside the restaurant.
6. Except with the written consent of the Responsible Authority the restaurant must operate only until 11pm Sunday to Thursday and until 12 midnight Friday to Saturday.
7. The noise generated by the premises must at all times comply with the requirements of the State Environment Protection Policy, Control of Noise from Commercial, Industrial or Trade Premises within the Melbourne Metropolitan Area No. N-1, and Control of Music Noise from Public Premises No. N-2, to the satisfaction of the Responsible Authority.

Materials/colours, plant equipment, roof structures, fixtures and lighting

1. The materials and colour of the exterior finishes of the building must be in accordance with the endorsed plans unless with the prior written consent of the Responsible Authority.
2. No plant, equipment, services or architectural features other than those shown on the endorsed plan are permitted above the roof level of the building except with the prior written consent of the Responsible Authority.
3. All pipes, fixtures, fittings and vents servicing any building on the site (other than rain heads, downpipes etc.) must be concealed in service ducts or hidden from view or otherwise to the satisfaction of the Responsible Authority.
4. Outdoor lighting must be designed, baffled and located to the satisfaction of the Responsible Authority to prevent any adverse effect on adjoining land.
5. Air-conditioning or other plant and equipment must be baffled to prevent nuisance or annoyance to persons in nearby dwellings.

1. The number of patrons in the restaurant at any one time must not exceed a maximum of 125 persons without the further written consent of the Responsible Authority.
2. Except with the consent of the responsible authority there must be no live music within the restaurant.
3. Residential apartment numbers must be clearly displayed and visible for emergency vehicles and visitors.
4. All security alarms or similar devices installed on the land must be of a silent type approved by the Standards Association of Australia and be connected to a registered security service to the satisfaction of the Responsible Authority.

1. This permit will expire if one of the following applies:
   • (a) The use is not started within 4 years of the date of this permit;
   • (b) The development is not started within 4 years of the date of this permit; and
   • (c) The development is not completed within 2 years of the date on which development commences.

The Responsible Authority may extend the above periods if a request is made in writing before the permit expires or within the following three months.

[1] Considering the cadastral map it appears that 329 Point Nepean Road is a consolidation of 329, 331 & 333 Point Nepean Road and 1 Heales Street.

[2] The property consists of four titles which in combination have a 75.9 metres frontage to Point Nepean Road and 54.3 metres to Heales Street and an area of 4,696 square metres.

[3] Four small single storey holiday flats

[4] Part of 2A McCulloch Street's rear garden intrudes between the land and the police station land see the Location, Cadastral and Zoning Map;

[5] Two storey townhouses in long continuous building.

[6] Defined as a Large Township Activity Centre in amendment C84.

[7] I inspected nearby foreshore car parks in the evening because it was argued that they were insecure at night and could not be relied on. I concluded that the nearest car park was acceptably secure, the more distant car park less so. Ultimately, my decision in relation to car parking does not rely on the availability or otherwise of foreshore car parking.