1. The subject land is irregularly shaped and has an area of approximately 2.6 hectares. It is located to the east of Longview Court in Thomastown. It has no vehicular access to Greenhills Road. Vehicular access is available from a carriageway easement affecting the property at 64 - 68 Longview Court.
2. The land falls from west to east at a gradient of approximately 1:27. It is currently vacant. A bicycle and walking path forming part of the Darebin Creek trail network bisects the northeast corner of the land. A 2.4 metre wide drainage and sewerage easement is located within the eastern part of the land. At its closest point the Darebin Creek watercourse is 15.0 metres from the northeast corner of the subject land.
3. The land to the north and east of the subject land is owned by VicRoads and is mostly surplus undeveloped land forming part of a reserve and buffer for the Metropolitan Ring Road, which is located approximately 112 metres to the north. Approximately one hectare of the subject land is affected by a Public Acquisition Overlay, which reserves land for the proposed E-6 arterial interchange with the Metropolitan Ring Road. This part of the land is not proposed to be developed or used in any way as part of the proposal before me.
4. Abutting the land to the south is the Melbourne Water pipetrack reservation, shown on the plans as the former Maroondah Aqueduct Reservation. It is intended that this reservation will be developed in the future as a regional shared trail extending to Healesville. This width of the reservation varies between, approximately, 20 and 25 metres. Abutting the south side of the pipetrack reservation are the rear yards of dwellings facing Greenhills Road and located in the Residential 1 Zone.
5. The section of the pipetrack reservation to the west of the subject land is abutted to the north by a developed industrial precinct. On the south side of this estate buildings are constructed to the boundary of the pipetrack reservation and present as a relatively unbroken "wall" of built form.
6. The subject land is in the Industrial 1 Zone. The northeast corner is in the Urban Floodway Zone. It is also affected by a Development Contributions Plan Overlay and in part by a Public Acquisition Overlay and a Land Subject to Inundation Overlay.

1. Mr Cicero sought leave to substitute amended plans for the plans on which the responsible authority had based its decision to refuse a permit. These plans, labelled "Issue B", show five groups of attached warehouses. The total number of warehouse tenancies shown is to be 28. Buildings A, B, C and E are to contain, respectively, 1, 5, 8, and 7 tenancies, ranging in size between 99.85 and 488 square metres, and are to be constructed along the southern boundary of the land. A driveway extending from the carriageway easement in at 64-68 Longview Court is to be located to the north of Buildings A and B, and is then to extend between Buildings C and E to the south and Buildings D and F to the north. Buildings D and F are to contain, respectively, 4 and 2 tenancies ranging in size between 95 and 98 square metres, and are to be constructed to the northern boundary of the subject land.
2. Three visual "breaks" are proposed along the southern boundary walls between Buildings A and B, B and C, and C and D, ranging in width between 16.5 and 34 metres. A visual "break" of 16.4 metres in width is also proposed between the buildings on the northern boundary.
3. The Issue B plans show 103 car parking spaces located in clusters along the length of the site and close to the entrances to each tenancy. A car parking, landscaping and delivery-vehicle turning area is proposed within the part of the land in the Urban Floodway Zone
4. None of the other parties objected to the proposed substitution of amended plans. I ordered them to be substituted. Mr Cicero then tabled Issue C plans showing a reduction in the size of Building F and the redesign and relocation of vehicle turning and car parking areas to the eastern side of that building in the Industrial 1 land. The Issue C plans were prepared in response to Mr Montebello pointing out, prior to the hearing, that the car parking and vehicle turning areas were prohibited in the Urban Floodway Zone. The redesign and relocation shown on the Issue C plans results in there being 104 car parking spaces for the proposal. For the sake of convenience I have taken the Issue C plans to be the plans before me.

1. The proposed development as shown on the Issue C plans is restricted to that part of the subject land which is zoned Industrial 1 and to which no overlays apply. Permit requirements are triggered by the requirements of the Industrial 1 Zone. Pursuant to Clause 33.1-04 of the Whittlesea Planning Scheme a permit is required to construct a building or construct or carry out works in the zone.

1. A planning permit is not required for the use of land for the purpose of a warehouse in the Industrial 1 Zone provided that the conditions specified for that use in Section 1 of the Use Table for the zone are met. Those conditions are:

Must not be a purpose shown with a Note 1 or Note 2 in the table to Clause 52.10.

The land must be at least the following distances from land (not a road) which is in a residential zone, Business 5 Zone, Capital City Zone or Docklands Zone, land used for a hospital or education centre or land in a Public Acquisition Overlay to be acquired for a hospital or an education centre:

• The threshold distance, for a purpose listed in the table to Clause 52.10.
• 30 metres, for a purpose not listed in the table to Clause 52.10.

Must not adversely affect the amenity of the neighbourhood, including through the:

• Transport of materials, goods or commodities to and from the land.
• Appearance of any stored goods or materials.
• Emissions of noise, artificial light, vibration, odour, fumes, smoke, vapour, steam, soot, ash, dust, waste water, waste products, grit or oil.

1. The relevant buffer distance for a warehouse is 30 metres. The distance between the warehouses to be built on the southern boundary of the subject land and the rear yards of dwellings facing Greenhills Road varies between 16.0 and 20.0 metres. The requirement for a permit for the warehouse use is therefore triggered. However, not all the proposed warehouses trigger a use permit. Proposed Buildings D and F are beyond the 30 metre buffer distance. It was held in Rossi Recycling Pty Ltd v Maroondah CC {2004} VCAT 687 (16 April 2004), to which my attention was drawn by Mr Montebello, that for the purpose of establishing whether a buffer distance has been met, the relevant distance is that between the residential zone and the actual land on which the use with potential for adverse amenity impact is to be located. In other words, the relevant distance is not between the boundary of the residential zone and the title boundary of the land on which the potential for adverse amenity impact is to be located.

1. The Planning Permit Application sought permission for reduction in car parking requirements pursuant to Clause 52.06-1 of the Planning Scheme. However, such permission is not required. The parking requirement for a warehouse set out in the table at Clause 52.06-6 is 1.5 spaces to each 100 square metres of net floor area. Ms Dunstan's evidence was that the proposed development as shown on the Issue B and Issue C plans has a net floor area, respectively, of 5,864.5 square metres and 5,772.6 square metres. Her evidence as to net floor area was not contested. At the rate of 1.5 spaces per 100 square metres of net floor area the development shown on the Issue B plans generates a requirement for 88 spaces. As shown on the Issue C plans it generates a requirement for 87 spaces. The Issue B plans show 103 spaces plus another space in the Urban Floodway Zone. The Issue C plans show 104 spaces, all within the land zoned Industrial 1.
2. The City of Whittlesea - Planning Guidelines for Industrial Developments 1997 is a reference document in the Whittlesea Planning Scheme. Section 3.5 of these Guidelines sets out the parking ratios for new developments which will be generally accepted by the Council for factory and warehouse uses. The rate set out for warehouses is 1.5 spaces per 100 square metres of net floor area, the same as that specified in the Table at Clause 52.06-6 of the Planning Scheme. However, Section 3.5 of the Guidelines also states:

Where a speculative warehouse development is proposed the factory ratio (2.5 spaces per 100 square metres) will be applied to enable greater flexibility in the end use and ensure that adequate car parking is available for potential users.

The proposal is for a speculative warehouse development. The end users of the development are unknown. However, the parking rate of 2.5 spaces per 100 square metres referred to in the Guidelines cannot override the requirements set out in Clause 52.06-6.

1. The permit application sought permission for signage associated with each of the warehouse tenancies. No details of the proposed locations and dimensions of these signs were provided. Pursuant to Clause 52.05-8 a permit is required for business identification signs in excess of 8.0 square metres in area.

1. Some of the objectors in this case, such as Mr Zhang, are of the view that the subject land should be developed for residential use and that because the 30 metre setback distance for residentially zoned land has not been achieved a permit should not be granted. However, it is not for me to decide what the zoning of the land should be. I must start from the fact that it is zoned Industrial 1. Presumably it was zoned Industrial 1 or some equivalent industrial zone when local residents purchased their houses. I note that dwellings (indeed all forms of accommodation, excluding a caretaker's house) are prohibited in the Industrial 1 Zone. As to the setback distance, it triggers a permit requirement only because the proposed warehouse buildings abutting the southern boundary of the subject land are within 30 metres of the Residential 1 Zone to the south. The provisions of the Industrial 1 Zone do not prohibit warehouse uses within 30 metres of land in a residential zone.
2. The issues in this case revolve around the amenity impacts on the residential area of the warehouse use proposed for the buildings abutting the southern boundary of the subject land, the acceptability of proposed internal vehicle movements, the impact of the development on Darebin Creek and surrounds, the adequacy of the landscaping proposed, and the presentation of the development to abutting land

Amenity impacts of the proposed use on the residential area to the south

1. The application requirements for a permit for the use of land for an industry or warehouse in the Industrial 1 Zone as set out at Clause 33.01-2 are as follows:

An application to use land for an industry or warehouse must be accompanied by the following information, as appropriate:

• The purpose of the use and the types of processes to be utilised.
• The type and quantity of goods to be stored, processed or produced.
• How land not required for immediate use is to be maintained.
• Whether a Works Approval or Waste Discharge Notice is required from the Environment Protection Authority.
• Whether a notification under the Occupational Health and Safety (Major Hazards Facilities) Regulations 2000 is required, a licence under the Dangerous Goods Act 1995 is required, or a fire protection quantity under the Dangerous Goods (Storage and Handling) Regulations 2000 is required.
• The likely effects, if any, on the neighbourhood, including:
  • Noise levels.
  • Air-borne emissions.
  • Emissions to land and water.
  • Traffic, including the hours of delivery and despatch.
  • Light spill or glare.

1. The decision guidelines accompanying Clause 33.01-2 require the responsible authority, and the Tribunal on review, to consider, as appropriate, a number of matters, including:

The effect that the use may have on nearby existing or proposed residential areas or other uses which are sensitive to industrial off-site effects, having regard to any comments or directions of referral authorities.

1. The objectors are concerned about odour, noise, and hazards posed by the possible storage of chemicals and other materials. Traffic generated by the proposal would have no impact on Greenhills Road, and the location of the central vehicular accessway and loading/unloading areas are such that it is very unlikely that deliveries and despatch activity would have any unreasonable impact on residential properties.
2. I agree with Mr Cicero that appropriate safeguards against unreasonable amenity impacts generated by the warehouse use on the residential area could be achieved by permit conditions. The warehouse use is required to comply with State Environment Protection Policies dealing with noise and odour. Any lighting which could conceivably be a source of glare could be required to be appropriately baffled. Emissions to air and water require EPA licences. The hours within which despatch and deliveries occur could be restricted. Perhaps most importantly, Mr Cicero stated that he would accept a condition on behalf of his client prohibiting the storage of any materials specified in Clause 52.10 of the Planning Scheme. Clause 52.10 deals with the types of industries and warehouses which, if not appropriately designed and located, may cause offence or unacceptable risk to the neighbourhood. The absence of the information accompanying the permit application as set out in Clause 33.01-2 is therefore not fatal in this instance to the proposal. I am satisfied that with the imposition of appropriate permit conditions the proposed use would not have any unreasonable effects on the nearby residential area.

Acceptability of proposed internal vehicle movements

1. The evidence of Ms Dunstan was that the access layout is sufficient to accommodate the movements of the vehicle sizes expected for deliveries and despatch. She stated that while the great majority of the vehicles expected would be small vans and medium sized trucks, the accessway way and the turning area towards the eastern end of the site have been designed to accommodate 12.5 metre long rigid trucks, and even semi-trailers could turn in the area proposed, although that would involve moving cars from 4 parallel parking spaces adjacent to the turning area. The responsible authority is opposed to loading and unloading of large trucks from the central accessway, necessitated because they would not be able to directly access the loading and unloading docks proposed, and is of the view that this would prevent two way traffic. Ms Dunstan's evidence, which I accept, was that loading and unloading from the central accessway would be the exception rather than the norm, but in any event would not prevent two way traffic, given the 6.5 metre width of the accessway. Her evidence was also that truck traffic would not be hazardous to cars parked in the indented bays along the accessway. I am satisfied that the proposed parking and access arrangements would operate satisfactorily.

Impact of the development on Darebin Creek and surrounds

1. The Darebin Creek Management Committee Inc is of the view that the proposed development would result in loss of revegetation and habitat potential and visual intrusion when viewed from the shared trail and the environs of Darebin Creek. I deal with the issue of visual intrusion later in these reasons.
2. I fail to see how the proposed development would prejudice the revegetation of the land in the Public Use Zone along the Creek. The development does not impinge on this zone. The landscaping proposed for the northeast corner of the site would provide an opportunity to integrate landscaping with future landscaping along the creek. Mr Infanti submitted that the proposed development would constrain the development of future wetlands in the creek valley and therefore limit the potential for providing habitat for the Growling Grass Frog, known to exist in the Botanica Park pond to the north of the Ring Road. The Growling Grass Frog is a species of national conservation significance, listed as endangered under the Victorian Flora and Fauna Guarantee Act 1988 and vulnerable under the Commonwealth Environment Protection and Biodiversity Conservation Act 1999. Mr Infanti did not explain how the development would constrain the development of future wetlands. The proposed development is well above the land in the Urban Floodway Zone. Presumably any wetlands developed in the future in the environs of the Darebin Creek would be well below the upper end of that zone and closer to the creek channel, which as far as I can establish, is approximately 65 metres from the parking and vehicle turning areas proposed towards the eastern end of the subject land .

1. Mr Montebello submitted that the proposed development provided inadequate landscaping opportunities both around the perimeter of the site and along the internal accessway. I agree with him in relation to the perimeter of the site, and I say more about that below, but in my opinion landscaping along the internal accessway is not a particularly high priority. One would not normally expect a high level of landscaping in the vicinity of highly trafficked areas in industrial estates. There are some opportunities for landscaping in the form of trees and shrubs along the accessway and these could be realised with an appropriately detailed landscape plan. On the whole I think these opportunities are adequate.

1. Having walked along the pipetrack reservation, I have concluded, on balance, that the proposed development would not present unreasonably intrusively when viewed from the rear yards and north facing windows of the dwellings facing Greenhills Road. The warehouse buildings proposed along the northern edge of the pipetrack reservation opposite the dwellings vary in height between approximately 6.0 metres and 8.0 metres. They will be between 20 and 25 metres away from rear fences, which generally are two metres in height. The rear setbacks of dwellings in this area are small - in some instances they appear to be as little as 3 or 4 metres. Planting along rear boundaries and/or the addition of trellising to rear fences would have a significant effect on screening views of the proposed development. Certainly the outlook from dwellings to the rear would change as a result of the proposed development. But I don't think that the change proposed is unreasonable. However, the presentation of the development to the pipetrack reservation, which is in the Public Use Zone and is intended to be developed as open space with landscaping and a shared pathway, is another matter.
2. Mr Czarny was engaged by the responsible authority to provide advice on a previous planning permit application lodged in 2003 for the use and development of 14 warehouses on the subject land, built to the southern boundary and incorporating a visual "break" approximately 30 metres wide between Warehouses 6 and 7. His advice was that the buildings should be set back in a staggered fashion such that landscaping buffer areas varying in width between 5 and up to 8 and 10 metres were available along the boundary of the reserve.
3. Mr Czarny's evidence is that the proposal now before me is acceptable because of staggered setbacks, the visual breaks between buildings, the variation in the height of the buildings and the detailing proposed for the walls facing the reserve. Buildings A and B are proposed to be built to the boundary, but are to incorporate staggered setbacks. Building A is to have two small steps with a maximum setback of a metre, plus another step with a maximum setback of 3.5 metres, Building B is to have 10 small steps with a maximum setback of a metre, plus a larger step with a maximum setback of 7.4 metres. Building C is to be built entirely to the boundary, save for C4 and C5, which are to be set back 3.4 metres, and C8, which is to be partly built to the boundary and then have a setback of 3.4 metres. Building E is to be built to the boundary, save for E1, part of which is to be set back 4.4 metres, and E4 and E5, which are to be set back approximately 4.0 metres. Building B is to be approximately 84 metres long. Building C is to be approximately 105 metres long. Building E is to be approximately 90 metres long.
4. In my opinion Buildings B, C and E would present unreasonably intrusively to the reserve, notwithstanding the visual "breaks" between them and the façade detailing proposed. While their presentation would not be as aggressive and brutal as the presentation of the existing warehouse buildings to the west, nevertheless they would result in overpowering built form which would have a significant detrimental impact on the reserve and significantly limit the potential for the future development of that land as public open space.
5. It is also my opinion that the eastern end of the development would present unreasonably intrusively to the Public Use Zone which applies to the environs of Darebin Creek. The nearest part of the development to the shared path and to Darebin Creek is the northeast corner of Building F, which is to be 15 metres from the path and approximately 35 metres from the creek. Given the slope of the land and the meandering nature of the creek valley, Building F will be an intrusive feature in the landscape when viewed from the public land to the north and northeast. The eastern end of Building E will also present unreasonably intrusively when viewed from the east and southeast.

1. I have concluded that the presentation of the proposed development to the public land in the pipetrack reservation and in the reserve abutting Darebin Creek would be unacceptable and not in accordance with the policies set out in the Planning Scheme at Clauses 12.05-2, 19.03 and 22.09. I have therefore affirmed the decision of the responsible authority and ordered that no permit be granted.