Victorian Civil and Administrative Tribunal|2019-05-17

For the reasons set out above, I have set aside Council's Notice of Refusal to Grant a Permit and made orders that a permit issue, subject to the final version of the permit conditions set out in the Appendix to this decision.

Use and development (including earthworks) of a service station and camping and caravan park; alteration of access to a road in Road Zone Category 1; removal of vegetation and the construction and display of signs.

Before the development starts, amended plans to the satisfaction of the responsible authority must be submitted to and approved by the responsible authority. When approved, the plans will be endorsed and will then form part of the permit. The plans must be drawn to scale with dimensions and three copies must be provided. The plans must be generally in accordance with the plans prepared by McIntyre and Cross Architects, Drawing No TP2-001, TP2-101, TP2-102, TP2-201, TP2-202 and TP2-203, all revision B, but modified to show:

The following bushfire protection measures must be implemented unless agreed in writing by CFA:

The main building and fuel canopy must be constructed to BAL 19.
Landscaping must comply with Table 6 to Clause 53.02.
Fire hydrants must be installed in accordance with AS 2419-2005 Fire hydrant installations - System design, installation and commissioning to provide coverage to the main building and fuel canopy.
A 45,000lt static water supply for fire fighting purposes must be provided in the camping area which meets the following requirements:
- Is stored in an above ground water tanks constructed of concrete or metal.
- Is located within 60m of all camping sites.
- All fixed above-ground water pipes and fittings required for fire fighting purposes must be made of corrosive resistant metal.
- The water supply must also -
  - Incorporate a ball or gate valve (British Standard Pipe (BSP) 65mm) and coupling (64 mm CFA 3 thread per inch male fitting).
  - The outlet/s of the water tank must be within 4m of the accessway and be unobstructed.
  - Be readily identifiable from the building or appropriate identification signage to the satisfaction of CFA must be provided.
  - Any pipework and fittings must be a minimum of 65 mm (excluding the CFA coupling).

Concurrent with the plans required by Condition 1, a landscape 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 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 Plan for VCAT dated December 2017 prepared by John Patrick Landscape Architects, DWG NO L-VCAT01 REV C, except that the plan must be prepared in consultation with the Country Fire Authority and must show:
- (a) An updated planting schedule including the quantities of each plant.
- (b) Planting which at maturity will comply with the defendable space requirements of the endorsed bushfire management plan.
- (c) Additional screen planting, including tall canopy trees and shrubs, within the setbacks to the Princes Highway and Ingleby Road boundaries.
- (d) A rural style fence to the southern and eastern boundaries of the approved use and development.
- (e) Any further modifications required by the Country Fire Authority, to achieve an acceptable 'bushfire risk management' outcome.

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

Concurrent with the plans required by Condition 1, a stormwater management plan (three copies) 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 ensure that stormwater and drainage discharge from the development site meets current best practice performance objectives for stormwater (Urban Stormwater Best Practice Environmental Management Guidelines (CSIRO 1999)) and must include:
- (a) Protection of adjacent land from overland flows from the site.
Before any road/drainage works associated with the development start, detailed construction 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 include:
- (a) Fully sealed pavement on Ingleby Road to south of the truck access onto Ingleby Road to a standard similar to the Duplication Works for the Princes Highway constructed for its intersection with Ingleby Road.

All works constructed or carried out must be in accordance with those plans.

Before the development starts a construction management plan (three copies) 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 address the following matters:
- (a) measures to minimise the impact of construction vehicles arriving at, queuing, and departing from the land;
- (b) measures to accommodate the private vehicles of workers/ tradespersons;
- (c) details of the location of all construction equipment and facilities, including delivery points, storerooms, toilets, temporary offices and workers' facilities;
- (d) noise attenuation measures to be put in place to protect the amenity of nearby residents during construction having regard to the EPA Guidelines on Construction and Demolition Noise;
- (e) measures to minimise the generation and dispersal of dust;
- (f) details of a 24 hour hotline for access to a contact person or project manager accountable for the project and compliance with the CMP;
- (g) arrangements for waste collection and other services to be provided during construction.
If required, the use and development approved by the permit must not commence until an Environment Protection Authority Victoria Works Approval has been obtained under the Environment Protection Act 1970 (or any equivalent successor legislation). In addition, if (pursuant to Clause 52.17 of the Surf Coast Planning Scheme) permission is confirmed to be required for the native vegetation removal associated with the approval granted by this permit, then the permit holder must (prior to the commencement of the operation of the approved uses) deal with the necessary vegetation off-sets, to the satisfaction of the Responsible Authority.
Prior to the commencement of works a landscape performance bond must be lodged with the responsible authority. The bond must be based on the endorsed landscaping plan with additional details to be provided to the satisfaction of the Responsible Authority incorporating:
- (a) An estimate of the quantity and type of materials, watering equipment, plants etc required and;
- (b) A quotation from a reputable landscape contractor for the implementation of the landscaping plan identifying the costs for materials, plants and labour. The quotation is to be verified to Council's satisfaction. The bond is to comprise the verified quotation plus a 25% margin for the unforseen costs. When the works are complete to the satisfaction of the Responsible Authority, 85% of the bond is to be released. The balance is to be retained as a maintenance bond for three (3) years. If the landscaping has not been maintained to the Authority's satisfaction at the end of three years, the maintenance bond is to be applied to upgrade the landscaping.
Before any works start (including demolition and/or excavation):
- (a) a tree protection zone must be delineated around the trees to be retained, including on adjoining land - the extent of the tree protection zone to be in accordance with the distances specified in the Tree Survey in the John Patrick report for the site dated October 2016.
- (b) the tree protection zones must be fenced and signed (as provided for in condition 10), to the satisfaction of the Responsible Authority, in a manner that does not compromise the trees' root zones.
- (c) the Responsible Authority must have advised, in writing, that the fencing and other tree protection measures are to its satisfaction.
During construction works:
- (a) the areas within the fenced off tree protection zones must not be used for any other purpose, including storage or building materials or machinery, except as provided for in this permit.
- (b) all contractors and subcontractors engaged to undertake construction work on the site must have included in their contract a reference to the retention of trees and these planning permit requirements for their protection.
- (c) signs to the same effect must be displayed at all times on the tree protection zone fences.
The site must be left in a clean and tidy condition after the completion of the works to the satisfaction of the responsible authority.

Before the use starts:
- (a) Landscaping works;
- (b) Roadworks
- (c) Drainage

Must be carried out and completed in accordance with the endorsed plans and to the satisfaction of the responsible authority.

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.

Before the use starts a use management plan to the satisfaction of the responsible authority, must be submitted to and approved by the responsible authority. The plan must address the following matters:
- (a) Procedures for daily running of the camping and caravan park.
Camping (in tents, caravans and self-contained vans) must only occur within the area identified for this activity on the endorsed plans.
No outdoor fires are to be allowed.

The use must be conducted to the satisfaction of the responsible authority so that the amenity of the area is not detrimentally affected by the use or development, 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, steam, soot, ash, dust, waste water, waste products, grit or oil;
- (d) Presence of vermin.
External lighting must be designed, baffled and shielded and of such limited intensity that no nuisance or loss of reasonable amenity is caused to any person beyond the site to the satisfaction of the responsible authority.
No goods may be stored or left exposed outside the building so as to be visible from any public road or thoroughfare.

Before the use starts, 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 an all-weather-seal coat
- (d) drained
- (e) line marked to indicate each car space and all access lanes
- (f) clearly marked to show the direction of traffic along access lanes and driveways

Car spaces, access lanes and driveways must be kept available for these purposes at all times.

A sign to the satisfaction of the responsible authority must be provided directing drivers to the area set aside for car parking and must be located and maintained to the satisfaction of the responsible authority. The sign area must not exceed 0.3 square metres.
Vehicles under the control of the operator of the use or the operator's staff must not be parked on the nearby roads.
Parking areas and access lanes must be kept available for the designated purposes at all times.

Concurrent with the plans required by Condition 1, a waste management plan must be submitted to and approved by the Responsible Authority. The plan must provide details of a regular garbage collection service, including information regarding the type of refuse bins (including public litter bins), type/size of trucks, means of accessing bins and frequency of refuse collection, to the satisfaction of the Responsible Authority. Once approved, the plan must be implemented to the satisfaction of the Responsible Authority.
Adequate provision must be made for the storage and collection of garbage and recyclables in bins or receptacles to the satisfaction of the responsible authority.
Litter on the site must be collected daily and placed in waste storage bins to the satisfaction of the responsible authority.

Deliveries to and from the site (including fuel deliveries and waste collection) must only take place between:
- (a) 7:00 am and 6:00 pm Monday to Friday
- (b) 7:00 am and 1:00 pm Saturday

No deliveries are to occur on Sunday and Public Holidays.

The loading and unloading of goods from vehicles must only be carried out on the land within the designated loading bay.

Before the use starts an Emergency Management Plan, to satisfaction of the responsible authority, must be submitted to and approved by the responsible authority in consultation with the Country Fire Authority. The plan must address the following matters:
- (a) Site management to reduce the impact of bushfire in the area on the site;
- (b) Management actions during the declared Fire Danger Period;
- (c) Management responses to the forecast Fire Danger Rating on each day of operation, including closing the camping area on days of Extreme and Code Red;
- (d) Actions in the event of a bushfire threatening or impacting on the site, including details of the location/s for emergency assembly, evacuation and shelter-in-place (in the event that evacuation from the site is not practicable).
- (e) Measures to reduce the risk of fire starting on the site;
- (f) Transport arrangements for staff and visitors;
- (g) The need for any additional arrangements for persons with special needs;
- (h) Training for staff, visitors on emergency procedures;
- (i) The nature and frequency of emergency procedure exercises
- (j) Actions for other emergencies (non-bushfire);
- (k) Emergency procedures including the assignment of roles and responsibilities to staff. This must include assigning responsibility for the:
  1. Management and oversight of emergency procedures
  2. Training of employees in emergency procedures
  3. Reviewing the effectiveness of emergency procedure exercises and implementing procedure improvements
  4. Accounting for all persons during the emergency procedures
  5. Monitoring and review of the Emergency Plans at least annually.

Before the construction or display of signs, amended plans to the satisfaction of the responsible authority must be submitted to and approved by the responsible authority. When approved, the plans will be endorsed and will then form part of the permit. The plans must be drawn to scale with dimensions and three copies must be provided. The plans must be generally in accordance with the plans prepared by McIntyre and Cross Architects, Drawing No TP2-401, TP2-402 and TP2-403, all revision B, but modified to show:
- (a) The content of signs S10 and S11.
- (b) The design of external lighting for signs S10 and S11.
- (c) The display area of signs S12, S40 and S41 to not exceed 0.3 square metres.
All signs must be located within the boundary of the land.
The signs must be constructed and maintained to the satisfaction of the responsible authority.
Only Signs S10 and S11 may be externally illuminated and sign lighting must be designed, baffled and located to the satisfaction of the responsible authority.
The signs must not be internally illuminated.
This permit in relation to the display and construction of advertising signs expires fifteen years after the date of issue.
On expiry of the permit in accordance with condition 35 all signs and structures built specifically to support and illuminate them must be removed within 20 business days to the satisfaction of the responsible authority.

The various activities forming parts of the use as shown on the endorsed plans must not be altered without the written consent of the responsible authority.
Except with the further approval of the responsible authority, the land must not be used for:
- (a) Servicing or washing of motor vehicles
- (b) Installing of motor vehicle parts or accessories
- (c) Hiring of trailers
The development as shown on the endorsed plans must not be altered without the written consent of the responsible authority.

Before the use approved by this permit commences, the following roadworks must be completed at no cost to and to the satisfaction of the Road Corporation (VicRoads):
- (a) Construction of a left turn lane on Princes Highway;
- (b) Installation of appropriate street lighting as follows:
  1. At the Princes Highway access to the site including the left turn lane
  2. At Princes Highway/Ingleby Road intersection
  3. At the Ingleby Road accesses to the site.
- (c) Extension and strengthening of the Ingleby Road pavement in the vicinity of the accesses to the site.
Prior to the start of detailed design of roadworks on Princes Highway, a functional layout of the Princes Highway roadworks must be approved by VicRoads.
Prior to the start of any works within the Princes Highway reserve, the applicant must enter into a Works Agreement with VicRoads which will include the processes for the approval of design and works, VicRoads fees and charges, maintenance arrangements and the level of VicRoads' service obligations.
No drainage shall be discharged onto the Princes Highway reserve without the written approval of the Roads Corporation (VicRoads).

Odours offensive to the senses of human beings must not be discharged, emitted or released beyond the boundaries of the premises.
Nuisance dust and/or nuisance airborne particles must not be discharged or emitted beyond the boundaries of the premises.
Effective noise levels from the use of the premises must not exceed the recommended levels as set out in Noise from Industry in Regional Victoria (NIRV; EPA Publication 1411, 2011) or as amended.
A secondary containment system must be provided for liquids which if spilt are likely to cause pollution or pose an environmental hazard, in accordance with the EPA Publication 347.1 Bunding Guidelines 2015 or as amended.
The permit holder must not contaminate land or groundwater.
Surface water discharge from the premises must not be contaminated with waste.
Construction and post-construction activities must be in accordance with EPA Publication 275 Construction Techniques for Sediment Pollution Control 1991 or as amended.
Displaced petrol fumes must be collected with a vapour recovery system.
Petroleum storage tanks must be designed, installed and operated in accordance with the Guidelines on the Design, Installation and Management Requirements for Underground Petroleum Storage Systems (UPSSs) (EPA Publication No. 888.4, August 2015).

This permit will expire if one of the following circumstances applies:
- (a) The use and 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
- (c) The use is discontinued for a period of two years.

The permit expiry may be extended in accordance with Section 69 of the Planning and Environment Act 1987.

[1] The submissions and evidence of the parties, any supporting exhibits given at the hearing, and the statements of grounds filed; have all been considered in the determination of the proceeding. In accordance with the practice of the Tribunal, not all of this material will be cited or referred to in these reasons.

Environment Act 1987

Administrative Tribunal Act 1998

MG Pastoral Pty Ltd v Surf Coast SC [2019] VCAT 502 (17 May 2019)

The drawing No. TP2-403 is helpful in showing the various proposed signage. It seems fair to say that at the hearing, the main point here which Council actively pursued was the lawfulness or otherwise of the proposed 'price sign', which is show in the top left corner of this plan.
In essence, this part of this drawing shows a price sign that would be 4 metres high, 2.4 metres wide, and (vertically and on each side) indicating (one above each other) the price for 4 forms of fuels being sold. Ditto where the sign would show a description of the four forms of fuel for sale i.e. "ULP, PULP, Diesel and LPG", also shown in a 'one above each other' format.
The letters and numbers involved would be shown using black figures on a white background. The bottom edge of the sign would sit 750 mm above natural ground level. The relevant numbers would be changed manually, as petrol pricing changes.
The total (flat) area on each side of the sign would be 7.8 metres and it would be floodlit by ground mounted lights, being two on each side of the sign.
Apart from the features I have described above, the appearance of the sign would be 'neutral'. That is, the sign would not involve the showing of any brands or logos, either of the fuel being sold or items for sale inside the service station building.
It was undisputed in itself that the subject land falls within a Category 4 area for the purposes of Clause 52.05 which deals with signage. On this basis, the only type of sign not needing a permit is a 'Direction sign'. In terms of what type of sign an owner can seek a planning permit for, the two types of signs are a 'Floodlit sign' and a 'Business identification sign - the total display area to each premises must not exceed 3 sqm'.
Council argued that this intended price sign should be properly characterised as a 'Promotion sign', which would be a prohibited use in this location, such that this feature should be deleted from the proposal by way of an appropriate permit condition.
In taking this approach, Council argued that the circumstances here are analogous to those before the Tribunal in the previous decisions of Woolworths v Surf Coast SC [2006] VCAT 1039 and TAG Winchelsea Pty Ltd v Surf Coast SC [2016] VCAT 2034. Both of these decsions also involved a proposed service station price sign and in both the Tribunal found that the sign in question would be a "Promotion sign".
By contrast, the applicant submitted that the intended price sign in question here is 'apples and apples' with the sign considered by the Tribunal in RW and MM Anderson Nominees v Greater Geelong CC [2016] VCAT 1904. In that case, the Tribunal found that the sign in question would not be a "Promotion sign" - instead characterising it as a "Floodlit sign" (which was permissible). Hence the applicant urged me to follow the lead of this Anderson Nominees decision and similarly characterise the prices sign in question here as being a 'Floodlit sign'.
Turning to my findings, I consider the applicant's position on this issue to be more persuasive and I conclude that the price sign in question should be classified as a "Floodlit sign". I agree with the applicant that the characteristics of this intended sign as shown in the drawing No. TP2-403 line up completely with the features of the intended sign before the Tribunal in the Anderson Nominees case. Notably, the size of these two signs is roughly comparable and it is important that in both cases, the sign would not involve any advertising brands or logos. Also no promotion of fuel discounting. Rather, in both cases, the sign would be nothing more or less than black numbers or letters against a plain background.
With the proposal before me, this conclusion is reinforced by the intended sign being set back a considerable distance from the main highway, with the existing road-side vegetation and any relevant new landscaping to be inbetween. Accordingly, I agree with the applicant that in practice this price information should be more for the benefit of motorists coming into the facility, rather than being easily visible to passing motorists on the Princes Highway.

MG Pastoral Pty Ltd v Surf Coast SC [2019] VCAT 502

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MG Pastoral Pty Ltd v Surf Coast SC [2019] VCAT 502 (17 May 2019)