The decision of the Responsible Authority is set aside. In permit

application 711163 a permit is granted and directed to be issued for the land at 182 Greenhills Road, Thomastown. The permit allows development and use of land for warehouses, advertising signs and a reduction of the required car parking in accordance with the endorsed plans and subject to the conditions set out in Appendix A.

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 development and use of land for warehouses, advertising signs and a reduction of the required car parking, at182 Greenhills Road, Thomastown. 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 development would not result in an acceptable outcome having regard to the State and Local Planning Policy Framework and particularly, Clause 12-05-2, 19.03 and 22.09 of the Whittlesea Planning Scheme.
   2. The warehouse development proposed will have a poor visual address and presentation to the Darebin Creek environs, the Melbourne Water reservation and nearby residential properties.
   3. The insular nature of the development proposal will not provide a safe and secure environment within and around the site.
   4. The proposal constitutes an overdevelopment of the site (insufficient car parking is provided).
2. 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 a large irregular lot located between the Bundoora industrial area to the west, VicRoads land associated with the Metropolitan Ring to the north, the Darebin Creek Reserve to the east and north east, and the Melbourne Water Pipe Track Reservation to the south. The land is accessed from within the Bundoora industrial from eastern end of Longview Court via a 70 metre carriageway easement across 64-68 Longview Court. The land does not have an abuttal to Greenhills Road.
2. The land is undeveloped grassland currently within an industrial zone. The land has an area of 2.6 hectares. A significant portion of the land is affected by the Public Acquisition Overlay (PAO2).
3. The site slopes gently from the west to east towards the Darebin Creek Reserve. It falls approximately 14 metres over 379 metres. The land falls more steeply to the east of a 2.4 metre drainage and sewerage easement is located towards the eastern end of the land.
4. The Melbourne Water Pipe Track Reservation is in the order of 25 metres wide adjacent to the land. Residential properties, abutting the north side of Greenhills Road, adjoin the south boundary of the Melbourne Water Pipe Track Reservation opposite the subject land.

1. The proposal is to construct 26 industrial tenancies for use as warehouses. Core features of the development are:
   • the tenancies vary in size from 156.7 square metres to 464.1 square metres;
   • the tenancies are grouped in five buildings A to E;
   • the heights of the proposed building range from 6m and 10m.
   • a 6.5m wide access way extending east west through the development;
   • 96 car spaces (including 10 disabled car spaces) clustered alon the assess way;
   • a pedestrian pathway would extend along the north of Buildings A and B, north of Building C and south of Building D, north of Building E and south of Building F;
   • garden areas landscaped with trees and shrubs on the periphery of the land, around car parking areas within the development and elsewhere, and;
   • "street" tree planting along the length of the access way.

1. In 2007 council refused a similar application for 28 industrial tenancies on the subject land. In application for review NBH Business Park Pty Ltd v Whittlesea CC [2007] VCAT 1681 the Tribunal upheld councils decision concluding:
   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.

1. The land is located within the Industrial 1 Zone except fo a small area at the eastern end of the land located in the Urban Floodway Zone.
2. The site is affected:
   • in part by a Public Acquisition Overlay (PAO) and a Land Subject to Inundation Overlay (LSIO); and
   • by a Development Contributions Plan Overlay (DCPO).

1. Since the earlier permit application referred to above Council has prepared amendment C111 to the Whittlesea Planning Scheme. The amendment seeks to include the land and the adjoining land to the north owned by VicRoads within the Residential 1 Zone
2. Amendment C111 is currently on public exhibition. Having regard to the amendments embryonic status Council did not rely on the amendment as a relevant consideration in this application.

1. It is my intention in these reasons to discuss the significant issues raised during the course of the hearing under the following broad headings:
   • Repeat appeals;
   • Relationship of the development to the Darebin Creek Reserve and the Melbourne Water Pipetrack Reserve;
   • The presentation of the development to residential properties south of the bike track;
   • Carparking.

1. As described above a proposal for the redevelopment of the subject land for an essentially similar proposal has already been the subject of an application to this Tribunal. It was submitted that the approach which has traditionally been taken by the Tribunal in respect of repeat appeals and the public interest in consistent decision making, weighed against approval of the current proposal.
2. I accept that the considerations appropriate to repeat appeals are relevant consideration in this matter. However, in this case the principal changes to the proposed development, vis a vis the development considered by the Tribunal in the earlier application, are almost exclusively directed to dealing with the issues of concern to the Tribunal in that case. Therefore, while the changes might not be regarded as radical having regard to the overall scheme of the development, they are significant changes from the perspective of repeat appeal type considerations.

The relationship of the proposed development to the Darebin Creek reserve and the Melbourne Water Pipetrack

1. There are two aspects to this consideration, the visual impacts of the project as a consequence of its landscape and architecture, and whether or not the design takes advantage of the land's interface to the adjoining reserves and consequentially provides opportunities for passive surveillance.

1. The architect has sought to moderate the visual impact of what is intended to be an affordable industrial development through the use of architectural features, articulation, and setbacks. More particularly the setbacks to the Darebin Creek reserve and the pipe track. The landscape architect engaged by the applicant for the purposes of this hearing suggested further changes, primarily increased setbacks along the pipe track to permit the planting of larger trees without impinging upon the pipe within the pipe track and to further extend the landscape adjacent to the creek reserve adjacent to tenancy F1.
2. The Darebin Creek reserve and its associated track winds through an urban environment. From the perspective of a user of the track and parkland there can have been no reasonable expectation that this land will always remain undeveloped. In my opinion this new proposal strikes a reasonable balance between the need for the development to provide a reasonable interface between the land and adjoining reserves and the appropriateness of developing the land as it is anticipated the land would be developed having regard to the zone provisions.
3. In relation to the pipe track the current design provides for a landscape edge over the entire length of the south boundary of the land. The proposed interface is substantially more attractive than that which is evident in the industrial zone further to the west and indeed is more attractive than the interface between the pipe track and the residential properties to the south, in my view it is an entirely acceptable outcome.

1. The proposed industrial tenancies by and large face onto the internal access way. The council criticises this design on the basis that it fails to take advantage of the amenity offered to the site by the adjoining reserves and consequentially failing to enhance the safety of the adjoining reserves by the provision of passive surveillance.
2. My first observation in relation to these criticisms is that there not entirely well founded. At the eastern side of the site in particular, the configuration of the buildings and the setbacks to the east and north east boundaries provide for a visual connection between users of the proposed warehouses and users of the Darebin Creek reserve. To a lesser extent this is also true in other locations around the perimeter of the site where there gaps between buildings occupied by car spaces and the like allow for views in and around the subject land.
3. Nevertheless it remains the case that along the pipe track in particular it is the blank rear walls of the proposed warehouses which face onto the reserves. It is true that in these instances the development takes no advantage of the adjoining reserves, and affords no opportunity for passive surveillance. However, criticism of these characteristics of the development disregards:
   1. the function and therefore the layout of various activities within the warehouse tenancy, the office, the loading bay and the store, and;
   2. the difficulties associated with developing an efficient use of the land having regard to its unusual shape, in particular avoiding the loss of land consequent upon providing access ways to warehouse units;

in my opinion further change to the design on this basis is unwarranted..

The presentation of the development to residential properties

1. As I have already indicated the amended design results in the proposed industrial buildings adjacent to the pipe track being set behind a well considered landscape screen. The architecture of the buildings has also been carefully considered.
2. The residents to the south of the site are separated from the land by the width of the pipe track. The proposed warehouse buildings are screened behind a landscape buffer established on the subject land itself. In my opinion this is a perfectly satisfactory interface between the two zones, particularly in the context where the proposal is for a series of small warehouse tenancies which are unlikely to have significant off site amenity effects.

1. Under the provisions of clause 52.06, the parking requirement for the proposed use is 76 car spaces. 96 car spaces are provided, an excess of 20 car spaces. Nevertheless the council maintains that the car parking provision is inadequate.
2. The basis for this opinion is found in council's planning guidelines for industrial developments 1997 which proposes a rate of 2.5 car spaces per 100 square metres for speculative warehouse developments which in this case would result in a parking requirement of 126 car spaces. The rationale of this car parking guideline is that where the future tenants of the proposed tenancies are unknown there is a risk that the tenancies will ultimately be occupied by industries with substantially higher car parking demands than ordinarily associated with warehouses.
3. Superficially there may be said to be some basis for this policy position. However, it is a policy which fails to have regard to:
   • a proposal to use the tenancy for the purpose of industry would trigger the parking requirements of clause 52.06;
   • the inherent variability in car parking found within warehouse and industrial uses, and the consequential likelihood that the overall car parking demand of a complex of small industrial and warehouse tenancies is likely to be substantially less than the rate specified in the guideline;
   • the undesirability of setting aside valuable land for car parking when it is unlikely to be required for that purpose.
4. The proposal as it appears before me provides more than the required number of car spaces. It is highly likely that the car parking provided will satisfactorily meets the needs of the future users of the complex, even if some of the tenancies are used for an industrial purpose, particularly given that they will have to be able to demonstrate to the council satisfaction that there is sufficient car parking before there can be any change of use from warehouse to industry.

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 granted. In particular it is my conclusion that the proposal, amended as proposed by Ms McKern, satisfactorily resolves the issues of concern in the earlier decision of this Tribunal. The design allows for an appropriate interface with the adjoining reserves.
2. To the extent that the interface issue relates to a landscape solution, I note that the solution is not solely the responsibility of the private land owner, the managers of the reserve have a responsibility to contribute to a solution.
3. 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. Within 60 days of a building permit being issued for any part of the permitted development or by such later time as agreed to in writing by the Responsible Authority, the permit holder must pay to Council a development contribution levy in respect of the development pursuant to the approved Drainage Infrastructure Development Contributions Plan in accordance with Schedule 3 to the Development Contribution Plan Overlay in the Whittlesea Planning Scheme. The levy payable must be indexed annually in accordance with the movements in the Consumer Price Index from 19 January 2006 until paid.
2. Before the development starts, an amended plan 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 submitted with the application but modified to show:
   • (a) boundary setbacks modified in accordance with the setbacks shown on the landscape plan by Botanix Landscape Architecture (Drawing 07-454B Sheet 1 of 1);
   • (b) all fencing;
   • (c) all external materials, finishes and colours with no external wall being uncoloured or unfinished natural concrete (all materials, finishes and colours are to be selected to minimise and/or deter graffiti attacks);
   • (d) elevation and design details for the directory board along the front (western) boundary of the subject site;
   • (e) detailed design measures incorporated in areas set aside for car parking, to prevent damage to fences or landscaped areas;

all to the satisfaction of the Responsible Authority.

1. Before the development starts, three copies of a detailed landscape plan prepared by a person suitably qualified or experienced in landscape design must be submitted to the Responsible Authority for approval. When approved, the plan will be endorsed and will form part of the permit. The plan must be drawn to scale with dimensions and show all proposed landscaping, including details of any vegetation to be retained, the location of all new planting, a schedule of plant species and height at maturity, and a maintenance schedule (including weed management measures) all to the satisfaction of the Responsible Authority. The plan must be generally in accordance with the landscape plan drawing number 07-454B by Botanix Landscape Architecture but modified to show:
   • (a) the provision of at least six taller species (such as Acacia Implexa or Allocasuarina verticilata) planted along the northern boundary adjacent to warehouse F-2;
   • (b) all trees to be planted at an advanced stage of growth;
   • (c) the provision of in-ground irrigation system for all landscaped areas;

all to the satisfaction of the Responsible Authority. In the event that the permitted development is subdivided, all boundary landscaping areas must be included in common property.

1. Before the development starts, the amount of $10,000 must be lodged with the Responsible Authority as a security deposit (Landscaping Bond) for the satisfactory completion and maintenance of the landscaping works hereby permitted.

The Landscaping Bond will be refunded to the payee as follows:

(a) up to 50% of the upon completion of the landscaping works to the satisfaction of the Responsible Authority;

(b) the balance upon the expiration of 2 years from the date of the completion of the landscaping works provided that the landscaping works have been maintained to the satisfaction of the Responsible Authority;

In the event that the landscaping works are not completed or maintained to the satisfaction of the Responsible Authority, the Responsible Authority may complete and/or maintain the landscaping work and deduct the cost thereof (including supervision) from the Landscaping Bond.

1. The use and development allowed by this permit and shown on the plans and/or schedules endorsed pursuant to this permit shall not be altered without the consent of the Responsible Authority.
2. Prior to the occupation of any building on the land, all landscaping works shown on the endorsed plan must be carried out and completed to the satisfaction of the Responsible Authority. The landscaping shown on the endorsed plan must be maintained thereafter to the satisfaction of the Responsible Authority.
3. Upon completion of all buildings and works authorised by this permit the permit holder must notify the Responsible Authority of the satisfactory completion of the development and compliance with all relevant conditions.
4. The amenity of the area must not be detrimentally affected by the use or development through the:
   • (a) transport of materials, goods or commodities to and from the land;
   • (b) appearance of any building, works or materials;
   • (c) emission of noise, artificial light, vibration, smell, fumes, smoke, vapour, steam, soot, ash, dust, waste water, waste products, grit or oil;
   • (d) presence of vermin.
5. Noise levels associated with the use and/or development must at all times comply with the State Environment Protection Policy (Control of Noise from Industry, Commerce and Trade) No. N-1.
6. Prior to the commencement of development a design for a stormwater drainage system shall be submitted to and approved by the Responsible Authority. (Where appropriate the design must have regard to Urban Stormwater Best Practice Environmental Management Guidelines (CSIRO) 1999 and the retardation of stormwater flows). The Stormwater drainage system shall be constructed prior to the occupation of the development to the satisfaction of the responsible authority.
7. Prior the occupation of any building on the land, areas set aside for parked vehicles and access lanes as shown on the endorsed plan must be:
   • (a) constructed;
   • (b) properly formed to such levels that they can be used in accordance with the plans;
   • (c) surfaced with fully sealed material including asphalt, coloured concrete, coloured patterned concrete, interlocking paving, bricks or other materials ;
   • (d) drained; and
   • (e) clearly 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;

Parking areas and access lanes must be maintained and kept available for these purposes at all times.

1. The loading and unloading of goods from vehicles must only be carried out on the land within the designated loading area/s identified on the endorsed plans.
2. Outdoor lighting must be designed, baffled and located to the satisfaction of the Responsible Authority to prevent any adverse effect to adjoining land.
3. Goods, equipment, packaging material or machinery must not be stored or left exposed outside the building so as to be visible from any public road or thoroughfare.
4. Provision must be made on the land for the storage and collection of solid waste. The area must be graded and drained and screened from public view to the satisfaction of the Responsible Authority.
5. The site shall at all times be kept in a neat and tidy condition to the satisfaction of the Responsible Authority. Any litter shall be immediately removed from the site and surrounding area at the written direction of the Responsible Authority.
6. The permit holder must promptly remove or obliterate any graffiti on the subject site which is visible to the public and keep the site free from graffiti at all times to the satisfaction of the Responsible Authority.
7. During construction of the development:
   • (a) a truck wheel washing facility or similar device must be installed and used to the satisfaction of the Responsible Authority so that vehicles leaving the site do not deposit mud or other materials on roadways. Any mud or other materials deposited on roadways as a result of construction works on the site must be cleaned to the satisfaction of the Responsible Authority within two hours of it being deposited;
   • (b) any litter generated by building activities on the site shall be collected and stored in an appropriate enclosure within the curtilage of the site in an area which is properly graded and drained and screened from public view. The collection and storage of waste must comply with Council's Code of Practice for Building/Development sites. The enclosures shall be regularly emptied and maintained such that no litter overspills onto adjoining land.

All litter shall be completely removed from the land prior to the occupation of any building on the land.

1. All stormwater side entry drains must be fitted with a gutterguard or similar to prevent litter from the site entering the Darebin Creek to the satisfaction of the responsible authority..

1. No polluted and/or sediment laden runoff is to be discharged directly or indirectly into Melbourne Water's drains or watercourses.
2. Vehicle access along or across Melbourne Water's pipe reserve for the delivery of construction materials and the storage of plant, equipment or materials on the pipe reserve is not permitted.
3. Temporary fencing must be erected along the common boundary with the pipe reserve for the duration of the construction period.
4. Blasting will not be permitted within 20 metres of Melbourne Water's main drain.
5. Surplus building materials must not be dumped on the Melbourne Water pipe reserve during or after construction.
6. No spoil or fill is to encroach Melbourne Water's land at any time during the development.
7. Where required the permit holder must arrange and fund permanent fencing to Melbourne Water's satisfaction along the common boundary with the Melbourne Water pipe reserve.
8. Prior to the commencement of works, a Site Environmental Management Plan (SEMP) must be submitted to Melbourne water for approval. The SEMP must include a site map detailing the location and design of all measures including the following:
   • (a) Silt fencing
   • (b) Access tracks
   • (c) Spoil stockpiling
   • (d) Trenching location
   • (e) Machinery / Plant locations
9. Prior to the commencement of works, a separate application direct to Melbourne Water must be made for any new or modified storm water connection to Melbourne Water's drains or watercourses.

1. There shall be no direct access from any lot to or from the Metropolitan Ring Road.
2. Amended plans are required to be submitted to and endorsed by VicRoads and the Responsible Authority prior to the commencement of works on site showing provisions for access to the parcel of land to the north-east corner, adjacent to the Metropolitan Ring Road, which is otherwise land-locked.
3. All building surfaces/external finishes visible to the Metropolitan Ring Road from this development are to be of a non reflective finish.
4. Any proposed advertising signage shall be subject to a separate permit application.

1. This permit will expire if one of the following circumstances applies:
   • (a) The development is not started within two years of the date of this permit.
   • (b) The development is not completed within four years of the date of this permit.

The responsible authority may extend the periods referred to if a request is made in writing before the permit expires, or within three months afterwards.