1. Pursuant to Section 60 of the Victorian Civil and Administrative Tribunal Act 1998, Jason Fiddes is joined as a party to the proceeding.
2. Pursuant to Section 127 and Clause 64 of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998, the following plans are substituted for the application plans:

Sheet No. 1 of 11 Neighbourhood and Site Description; Sheet 2 of 11 Design Response Plan; Sheet 3 of 11 Neighbourhood Photo Survey; Sheet 4 of 11 Basement Car Park Site Layout Plan; Sheet 5 of 11 Ground Floor Site Layout Plan; Sheet 6 of 11 First Floor Site Layout Plan; Sheet 7 of 11 Roof Top Deck Site Layout Plan; Sheet 8 of 11 North East / Streetscape Elevation, North West Elevation, South West Elevation; Sheet 9 of 11 Section XX, Section ZZ, South East Elevation, Section YY; Sheet 10 of 11 AM Shadow Diagrams; Sheet 11 of 11 PM Shadow Diagrams, all AMT E, Amendment Date 07.03.11, prepared by Neil Fletcher Design Pty Ltd.

1. The decision of the Responsible Authority in relation to permit application no. KP-725/2009 is affirmed. No permit is granted.

Ms T Cincotta, Solicitor of Best Hooper. Evidence was called from the following persons:

• Mr A Rodda, Town Planner of Contour Consultants Australia.
• Ms D Donald, Traffic Engineer of O'Brien Traffic.

Construction of a two-storey building (plus basement) accommodating commercial uses, dwellings and associated car parking.

Application under Section 77 of the Planning and Environment Act 1987.

Design and Development Overlay - Schedule 1 (DDO1).

Design and Development Overlay - Schedule 7 (DDO7).

Abuttal to a road in a Road Zone Category 1 (RDZ1).

Cl. 34.01-4 (construction of buildings and works on land in the B1Z).

Cl. 43.02-2 (construction of buildings and works in DDO1).

Cl. 52.06 (reduction of the car parking requirement).

Clauses 10, 11, 11.01, 11.04, 13.01, 15, 15.01, 17.01, 18.02, 21, 22.11, 34.01, 43.02, 52.06, 52.07 and 65.

The review site is located on the north-west side of Nepean Highway in Aspendale. It comprises of two lots; has a frontage of 24.38 metres; a depth of 33.52 metres; and an overall site area of 817.2 square metres. Presently occupying the land are two single-storey buildings - a commercial premises and a detached dwelling. To the north-west is a restaurant, while to the south-east are two, two-storey commercial buildings. Adjoining to the rear is a right-of-way, beyond which are residential properties. On the opposite side of the Nepean Highway are the Aspendale train station, and associated railway reservation. The site is approximately 70 metres from the foreshore[1].

Azzure Investment Group Pty Ltd v Mornington Peninsula Shire Council [2009] VCAT 1600

1. In June 2010, the Kingston City Council decided to refuse an application for the construction of a two-storey building (plus basement) on the review site. The development was proposed to accommodate two commercial tenancies and 14 dwellings, with basement car parking for 21 vehicles. That decision was made contrary to the recommendation of its officers, which was to approve the application subject to a number of conditions.
2. The reasons for the Council's refusal refer to overdevelopment, non-compliance with urban design policy, amenity impacts on adjoining residential properties and traffic. These grounds are generally consistent with concerns expressed in objections to the proposal received from the owners/occupiers of surrounding land, with the addition of car parking considerations.
3. The Applicant, Neil Fletcher Design Pty Ltd, has applied to the Tribunal for a review of the Council's decision.
4. Amended plans were circulated prior to the hearing, and were subsequently substituted for the application plans. The principal change from the original plans considered by the Council is the loss of one ground floor dwelling and consequential internal re-arrangement to create three commercial tenancies in place of the two originally proposed[3].
5. The key issues for determination are:
   • Is the proposal consistent with the relevant planning policies?
   • Is the built form an acceptable response to the planning and physical context of the review site?
   • Will the proposal have an unacceptable impact on the amenity of the neighbouring properties?
   • Will the development provide an acceptable level of amenity for its occupants?
   • Is adequate car parking provided and will the traffic impacts of the proposal be acceptable?
6. The Tribunal must decide whether a permit should be granted and, if so, what conditions should be applied. Having considered all submissions and evidence presented with regard to the applicable policies and provisions of the Kingston Planning Scheme, I have decided to affirm the Council's decision. My reasons follow.

Is the proposal consistent with the relevant planning policies?

1. The review site is within the Aspendale Neighbourhood Activity Centre[4]. It is a location where medium to higher density housing opportunities are promoted. Mixed use developments are identified as one means by which this can be achieved[5]. It is state planning policy to build up activity centres as a focus for high-quality development, activity and living for the whole community[6]. It is also policy to encourage the concentration of retail, residential and commercial development, amongst others, into activity centres which provide a variety of land uses and are highly accessible to the community. These policies, and their related strategies, are part of the overall strategic vision for a more compact city to make greater and more efficient use of existing services and infrastructure.
2. Relevantly, state policy encourages higher density housing in and around Neighbourhood Activity Centres that is designed to fit the context and enhances the character of the area while providing a variety of housing options for different types of households[7].
3. The Planning Scheme includes a residential land use framework that identifies areas where higher densities will be encouraged, while moderating the rate and type of housing change in other locations. It represents a managed approach to residential development within the municipality. This policy refers to four levels of change: increased housing diversity, incremental housing change, minimal housing change and residential renewal.
4. According to the Municipal Strategic Statement (MSS), the site is also within a designated housing diversity area, being one of the locations earmarked for increased dwelling density[8]. The policy is to encourage increased residential densities and a wider diversity in housing types and sizes in these areas[9]. Medium density developments are promoted, but are required to respond to the established, but evolving, urban character. Proposals will need to display sensitivity to the existing residential context and amenity standards in these areas.
5. The redevelopment of the land for higher density residential purposes is consistent with the strategic vision for this locality. It will contribute to the diversity of housing and support the on-going viability of the activity centre. The site is strategically located to take advantage of the existing infrastructure and services, including the Aspendale train station on the opposite side of the Nepean Highway. The use of the ground floor for commercial purposes is an appropriate response to the site's business zoning, and will assist in activating the site's frontage. It will contribute to the consolidation of the activity centre and introduce further non-residential activity to add to the range of services provided within the centre[10].
6. In broad terms, the proposal is consistent with both the policies and strategic directions embodied within the Planning Scheme's policy frameworks. Attention, however, also needs to be given to the development's response to its immediate context. I will consider this issue in the following sections of these reasons.

Is the built form an acceptable response to the planning and physical context of the review site?

1. Through the application of a Design and Development Overlay (DDO1) to this site, the Planning Scheme envisages a specific built form outcome as part of any redevelopment. In summary, the DDO1 limits development to two-storeys in height (which may include a basement car park with a maximum height of 1.2 metres above natural ground level). The design objectives seek to protect and enhance the foreshore environment; ensure that development is sympathetic to its context; and achieve buildings that relate to those on adjoining sites so that they are compatible with and enhance the appearance and character of the immediate locality.
2. At the hearing, I raised the issue of whether the proposed roof decks and enclosed stairwells, which project above the roofline, constitute a breach of the DDO1 mandatory height control. I made an Order directing the Responsible Authority and the Applicant to make further submissions addressing this issue. Responses were received from both parties and both agreed to my deciding this question, to the extent that it is a question of law.
3. The Council and the Applicant agree that the proposed development does not constitute a breach of DDO1. Relevantly, the Applicant referred to the Tribunal's decision of Hill-Murray v Hobsons Bay CC[11]. That decision concerned a DDO which included a mandatory height requirement that "a permit may not be granted to construct a building or construct or carry out works exceeding a height of two storeys". In that decision, the Tribunal's decisions in Cope v Hobsons Bay CC[12] and Poci Brothers v Bayside CC[13] were considered.
4. In summary, the findings in these cases is essentially that it is the external appearance of the building that is important, with the term 'storeys' being used to refer to the number of apparent levels. The control is not intended to prevent the construction of any part of the building above the ceiling of the top storey.
5. In this instance, the proposed development has the appearance of a two-storey building. I do not consider that the inclusion of stairwells and uncovered roof decks result in the building presenting as a three-storey structure. On the point of the projecting enclosed stairwells, the Applicant referred to the Tribunal's decision in the matter of Park v Bayside CC[14] where the Tribunal found that a stair access structure on a roof deck did not constitute another storey. The Tribunal stated:
   1. It was asserted by Mr McCaffrey, however that the deck with its stair access structure might constitute another, or fourth storey. That is, a storey other than an attic or basement, and thus be prohibited under the Scheme. The parties gave their consent to my deciding this question in the event that it constituted a question of law. My finding in relation to this question is that the stair bulkhead does not constitute a "storey" in its own right. Rather it forms part of and shares the floor with the first floor below giving the first floor, in the area of the stairway, a higher than 3.5m ceiling height and thus involving the need for a permit, quite apart from the need based on the fact that the development is of 3 storeys. For completeness I also find that the stair bulkhead does not constitute an attic or mezzanine as it cannot be said to have a "floor" in the commonly understood sense. Rather it is a conduit between levels, namely, between the first floor below and the deck above. As the deck has no "ceiling", other than the sky, it too cannot be regarded as a storey in its own right.
6. Applying the reasoning in the cases of Hill-Murray, Cope, Poci and Park, my conclusion is that the development complies with DDO1.
7. The development's height is appropriate to the site and its context. It represents a scale that will assimilate comfortably into its surroundings, and one that is already evident in the immediate area in the form of recently completed developments further to the south-east. Similarly, construction to the side and rear boundaries is a common response on sites in commercial areas, and is consistent with the purpose of the Business 1 Zone to achieve intensive developments in these locations.
8. That said, the development needs to acknowledge and respond to contextual considerations that, in this instance, act to constrain the form and siting of the building.
9. A restaurant adjoins the review site to the north-west. I was advised that this restaurant operates seven days per week. At its earliest, it commences operation at 7.00am, with the latest closing time being 11.00pm. There is variation within these operating hours between weekdays and weekends. The owner of the restaurant submitted that, as a consequence of the design response which places windows and balconies adjacent to the common boundary, there is the potential for the restaurant to impact on the amenity of the dwellings, giving rise to complaints. Particular reference was made to the off-site effects of odours and noise from the kitchen exhaust flues, noise from garbage collection, disturbance arising from the use of the car park area of the restaurant by staff, noise from refrigeration plant and odours from a grease trap.
10. I am not persuaded that the development has responded satisfactorily to this adjoining use. Two of the upper level balconies will be positioned directly adjacent to the exhaust flues. In response to my questioning, it was estimated that the top of the flues is some 5.5 metres above ground level. As a point of comparison, the floor level of the balconies is approximately 3.5-4.5 metres above ground level, meaning that the balconies will be directly impacted by the noise and odours emanating from the flues. The impact is compounded by the fact that the balconies extend to the common boundary. In addition, habitable room windows with an outlook to the section of roof where the flues are located will only be set back between 1.9 and 2.6 metres from the boundary.
11. I hold similar concerns regarding the remaining balconies along the north-western side of the building. These are also constructed to the boundary, and are directly adjacent to the car park and bin storage area. I was advised that the refrigeration compressors are positioned adjacent to this boundary. The placement of the balconies compromises their amenity. They will be exposed to noise and disturbance from the use of this rear area, with this impact also potentially affecting the amenity of the habitable rooms adjoining the balconies. The siting and design of the development does not reflect an acknowledgement of the interface with the noise and odour sources on the restaurant land. Indeed, its layout will result in several of the proposed dwellings having maximum exposure to those elements of the adjoining land use which, potentially, will have the greatest impact on the dwellings' amenity.
12. The Applicant suggested that Dwellings 8 and 9 could be re-designed to have their balconies face the internal courtyard, to remove the potential for conflict with the restaurant operation. This is a possible solution, although attention will need to be paid to the solar access to the balconies, and to any consequential overlooking of other dwellings within the development itself.
13. In addition, a different design solution is required for the remaining dwellings along the north-western interface to respond to the impacts arising from the adjoining use.
14. In conclusion on this issue, I observe that the design also has the effect of somewhat unreasonably constraining the re-development potential of the adjoining restaurant site, given the proposed placement of sensitive elements (being the balconies and habitable room windows) either on, or proximate to, the boundary. Any re-design should include consideration of the likely development outcomes on this adjacent land and adopt a response which allows sufficient scope for that property to be developed in a manner that is consistent with its business zoning and activity centre context.

Will the proposal have an unacceptable impact on the amenity of the neighbouring properties?

1. Screening is proposed to the windows and balconies of the development that have an outlook toward the neighbouring residential properties to the south-west. This screening is to a height of 1.7 metres above floor level and, subject to design detail (including permeability), should prevent any unreasonable overlooking. It appears from the plans that the roof top decks associated with Dwellings 7 and 11 are within 9 metres of the residential properties at 2 Foster Street and 1 Groves Street. Had I determined to grant a permit, I would have required the provision of screening to the decks to limit views of the secluded private open space areas of these properties.
2. Shadows from the development will fall largely on the right-of-way, the adjoining commercial property to the south-east and the road reservation of the Nepean Highway. The shadow cast on the residential properties will fall within that of the existing fences. The development will not result in unreasonable overshadowing.
3. Any assessment of visual bulk must be undertaken within the context of the site's business zoning, its location within an activity centre and in an area where higher densities are specifically encouraged by policy. The resultant impacts of buildings on the visual amenity of adjoining or nearby residential properties are likely to be different (and greater) than what would reasonably be expected within a 'conventional' residential area. When assessed in these terms, the development is sufficiently separated from the residential properties to avoid the presentation of unreasonable visual bulk. A useful guide, and one that is referred to in the decision guidelines of Clause 34.01-4, is Clause 55. The application of Standard B17[15] to the proposal would require setbacks of between 1.4 metres and 3.7 metres from the boundary of the residential properties. In this instance, due to the intervening right-of-way, the resultant setbacks range between 3.4 metres and 8.1 metres. On this basis, and having regard to the articulated nature of the building's rear elevation, I consider that the siting of the development is acceptable from this perspective.
4. The Council expressed concerns in relation to the potential impacts on the amenity of the adjoining land to the south-east. This property is occupied by a two-storey commercial building. Based on the submissions it appears that a dwelling use exists to the rear, and above, the ground floor commercial tenancy. The proposed two-storey boundary walls will impact on daylight to those windows that have an outlook toward the review site. The windows are set back 1.5 metres from the common boundary.
5. The owners/occupiers of this property are not parties to the proceeding, and there is some uncertainty regarding the precise number of windows that are associated with habitable rooms. I consider that the 1.5 metre setback is sufficient to ensure the first floor windows will continue to receive adequate daylight. As I understand it, the principal concern lies with the ground floor windows. From my inspection, it appears that at least two of these windows are to non-habitable rooms. Given my conclusion that no permit should be granted, I ultimately do not need to make a finding on the acceptability or otherwise of the development's impact on the windows. I will observe, however, that there is some merit in the proposed design response which incorporates partial setbacks from this boundary to avoid a continuous boundary wall. Dependant on the siting of the walls, this response provides an opportunity for the neighbouring windows to maintain some access to daylight.

Will the development provide an acceptable level of amenity for its occupants?

1. For reasons outlined earlier, I am not satisfied that the development will provide an acceptable level of amenity for the occupants of those dwellings that are positioned adjacent to the adjoining restaurant. These dwellings will be adversely affected by the odours and noise that emanate from the restaurant use. A different design response to this interface is required.
2. A void that is open to the sky is positioned in the central portion of the building as a means of providing light and ventilation to the internal rooms and areas of the building. This has the potential to achieve a satisfactory outcome in terms of internal amenity. I consider, however, that skylights should be provided to the ground floor dwellings on the north side of the void, in a similar manner as has been provided to those on the south side. This will enhance the amenity of these dwellings, given that the upper level walkway will have some impact on the amount of light that will be able to penetrate the windows that face out onto the void.
3. With the exception of those associated with Dwellings 5 and 6, the balconies within the development will face east, north or west and will have solar access for at least part of the day. Given only two dwellings have their balconies on the south side of the building, I consider that this acceptable. It is not always possible in apartment style formats to provide optimal solar access to all dwellings. In this instance, the number of dwellings which will experience restricted sunlight penetration has been limited. In addition, occupants of these dwellings will have the benefit of the nearby foreshore reserve, which is located some 70 metres from the review site, to enhance their recreation opportunities.

Is adequate car parking provided and will the traffic impacts of the proposal be acceptable?

1. It is proposed to accommodate a total of 21 car spaces in the basement. This includes one car space for each of the commercial tenancies and two visitor car spaces. The remaining spaces are to be allocated to the dwellings. Each dwelling is to have one car space, with three of the larger dwellings being provided with two car spaces. On-site car parking is not proposed for customers of the commercial uses.
2. The Applicant's evidence is that sufficient publicly accessible car parking is available in the surrounding street network to accommodate customer vehicles. In support of the proposed arrangements, reference was also made to the existence of public transport in the vicinity of the review site, being the nearby railway station and the bus routes on Nepean Highway.
3. Each of the dwellings comprises either a single bedroom, a bedroom and a study, or two bedrooms. I accept the Applicant's evidence that the rates specified in Standard B16 at Clause 55.03-11 represent an appropriate basis for calculating the car parking requirement for the residential component of a development such as this, given its activity centre location, proximity to services/facilities and to public transport, and the relatively small size of the dwellings. The application of Standard B16 to this proposal generates a requirement of 16 car spaces (13 spaces for the residents and 3 spaces for visitors). I consider that an additional car space should be set aside for visitors to reduce the demand on the on-street parking in the area. This leaves two spaces that may each be allocated as a second car space to specific dwellings.
4. The allocation of one car space to each of the commercial uses is acceptable and should adequately cater for the long term parking requirements of these uses, given their restricted floor area. The evidence is that there is sufficient public car parking in the locality to accommodate the demand for up to five spaces that will be generated by customers of the shops.[16]. This is consistent with the views of the Council officers. The removal of the existing crossover to the Nepean Highway will reinstate at least one on-street car space which will then be available to people visiting the area, including customers. In addition, the convenient access to public transport makes it likely that some persons will use the train and bus services, rather than relying on private vehicles.
5. Both the Council and residents raised concerns regarding the proposed use of the laneway to access the basement car park. In particular, the concerns relate to the volume of traffic and the potential noise and safety implications. I commence by observing that the use of this constructed laneway to provide vehicular access to the review site is far preferable to accessing the site from the Nepean Highway, given it is a main road and is within a Road Zone Category 1. The laneway is of sufficient width and is constructed to an appropriate standard to enable it to carry vehicles. Indeed, it is currently being used by existing development within both the business area and the adjoining residential zone.
6. The Applicant's evidence is that the development will generate up to 84 vehicle trips per day, with 11 vehicle movements per peak hour. The evidence is that this volume of traffic can be comfortably accommodated by the laneway, with access being enhanced by the fact that the lane connects to both Foster Street and Groves Street. This view is consistent with that of the Council's traffic engineers who raised no concerns regarding the traffic impacts of the proposal. I also consider that vehicles travelling along the lane are likely to do so at relatively low speeds given the width of this thoroughfare, the proximity to the intersecting streets and the shared use of the lane with pedestrians.
7. Mr Fiddes advised that, due to the width of the right-of-way, he currently utilises a portion of the review site in order to achieve the necessary vehicle manoeuvrability to access his garage. He stated that the development should be modified by recessing the entry to the bin storage area to allow him to maintain vehicular access to his garage.
8. In response, the Applicant submitted that there are no registered carriageway easements affecting the review site. It was further submitted the Tribunal does not have jurisdiction to determine any dispute in respect of the existence or otherwise of an implied easement or an 'easement by reason of long user' over the review site. Reference was made to several Tribunal decisions in support of this submission[17].
9. I accept the Applicant's submissions. There are other avenues available to the parties to resolve any dispute that may exist regarding Mr Fiddes' ability to use part of the review site to gain vehicular access to his property.
10. A waste storage area is shown at the rear of the ground floor level, with an opening to the laneway. Although a Waste Management Plan has not been prepared, preliminary indications are that the collection vehicle will prop in either Groves Street or Foster Street and the bins wheeled by the contractor to the vehicle for emptying. The bins will then be returned to the storage area. I consider that the issue of waste management can be adequately addressed, and note that Council officers did not raise any concerns regarding this issue. Any Waste Management Plan will need to address both storage and collection arrangements to the Council's satisfaction.

1. The review site is within an area of cultural heritage sensitivity as it is within 200 metres of the high water mark of the coast (Port Phillip Bay)[18]. According to the Aboriginal Heritage Act 2006, given the proposal is defined as a high impact activity under the Aboriginal Heritage Regulations 2007, a Cultural Heritage Management Plan (CHMP) is required unless the site has been subject to significant ground disturbance[19]. This issue was not addressed as part of the Council's consideration of the planning application, and was raised in the Council's submission at the hearing. Subsequent to the hearing, I made orders directing the Applicant and the Council to provide submissions addressing the need or otherwise for a CHMP.
2. In response to the orders, the Applicant provided an expert witness statement prepared by Jonathon Howell-Meurs of Andrew Long and Associates. On the basis of this material, the Council is satisfied that the land has been subject to significant ground disturbance and that a CHMP is not required.
3. The evidence states that, as part of an inspection of the review site, five hand auger probes were undertaken across the site to determine the subsurface soil profile with a view to evaluating the level of disturbance across the site. The results indicated a significant level of soil disturbance to the top 300mm of the soil profile uniformly across the activity area. The evidence goes on to state that that outcome is to be expected when consideration is given to the presence of buildings and landscaping features within the property, and to the developed nature of the surrounding land.
4. Reference to the Tribunal's decision in Azzure Investment Group Pty Ltd v Mornington Peninsula Shire Council [2009] VCAT 1600 was made in both the Applicant's submission and in the evidence. That case has some similarities with this Application in that it, too, related to a suburban lot within an established area. In terms of how the relevant analysis should be undertaken, the Tribunal stated:
   1. In my view, for smaller subdivided urban lots (say, up to a standard 'quarter acre' block, or perhaps 0.1 hectare in size), I think it is possible for a decision maker to be satisfied, on the 'balance of probabilities', based on a comparative and contextual approach, that there has been significant ground disturbance of that entire lot for the purpose of the AH Regulations. This does not mean that all small urban lots should automatically be considered to have been the subject of past significant ground disturbance. However, in an established urban area, where a reasonable level of inquiry establishes that a lot has have been extensively developed, serviced and used over an extended period with significant site coverage by buildings and works, likely mechanical grading or levelling as part of the subdivision, underground servicing, and with small yards or garden areas showing little or no signs of remnant vegetation or undisturbed ground, a finding of 'significant ground disturbance' of the entire lot is certainly open.
   2. It is should perhaps be emphasised that this approach does not entitle the decision maker to ignore the essential elements of the definition of 'significant ground disturbance' in the AH Regulations. The comparative and contextual information must still reasonably satisfy the decision maker that the relevant land has been disturbed in the past by machinery in the course of grading, excavating, digging, dredging or deep ripping (other than ploughing). However, in the absence of a single item of proof, the contextual approach may assist in achieving this level of satisfaction through a reasonable inquiry and examination of a range of relevant information (none of which is necessarily conclusive in itself) and 'joining the dots' to reach a common sense conclusion from the available information. In this case, the site coverage of buildings and works on a small block, the research of likely mechanical disturbance through grading, the underground servicing, the old septic system etc all lead reasonably to a conclusion that the has been 'significant ground disturbance' here.
   3. The acceptance of this view does not affect the principles that underscored the decision in Mainstay. Member Naylor and I had noted in that case that the level of inquiry, and information required to satisfy the decision maker, will depend on the circumstances of each case. The standard of proof is on the 'balance of probabilities' not proof beyond doubt. There must be sufficient information, objectively considered, to persuade the decision maker to a reasonable level of satisfaction in a given case that there has been significant ground disturbance. In my view, the level of inquiry, and information required, for a small developed urban lot might therefore be relatively more limited as compared with a sparsely developed larger site.
5. Consistent with these findings, Mr Howell-Meurs noted the following in respect of the review site:
   • Each of the properties that comprise the site are occupied by buildings and display sizeable paved areas. In combination, 82% of the site is covered by buildings and paving.
   • Those areas of the land that are not developed have a soil profile that is demonstrative of a significant level of soil disturbance.
   • The ground level of the yard areas is flat despite the overall gradient of the properties (a fall of 1.6m-1.7m from west to east).
   • There is no remnant vegetation on the land.
   • The land is sewered and, whilst unconfirmed, it is likely that septic tanks were present prior to sewerage being installed. The broader area within which the land is situated was sewered in the 1970s. The installation of the services would have result in significant ground disturbance.
6. The definition of 'significant ground disturbance'[20] reads:

Significant Ground Disturbance means disturbance of -

(a) the top soil or surface, rock layer of the ground; or

by machinery in the course of grading, excavating, digging, dredging or deep ripping, but does not include ploughing other than deep ripping.

1. It is a requirement, therefore, that in order to meet this definition, the disturbance of the soil or surface must have been by machinery.
2. Mr Howell-Meurs evidence does not state that this has occurred in this case. What he does state is:

Through subsurface investigation it has been determined that the soil profile in those sections of the activity area which have not been built or paved over have been substantially modified during activities associated with the construction of buildings on the properties. This soil profile is taken as indicative of the movement of soil deposits and most likely occurred during the initial clearance and preparation of the activity area for subdivision and development, most probably through mechanical means.

1. Mr Howell-Meurs appears to have inferred, or assumed, that the clearance and preparation of the site at the time of its original development was by mechanical means. This is contrasted with the circumstances of Azzure where the expert in that case had undertaken relevant research and was satisfied that the subdivisions in that area in the mid-20th century had commonly utilised mechanical grading, and there was comparative evidence of this in a proximate subdivision.
2. I do not consider that the evidence of Mr Howell-Meurs is sufficient to enable a decision-maker to be satisfied that the ground disturbance experienced by the review site meets the requirements for an exemption from the need to prepare a CHMP under Regulation 28 of the Aboriginal Heritage Regulations 2007. Specifically, it does not contain sufficient information to allow a decision-maker to reasonably conclude that the ground disturbance was caused by machinery.
3. As I have determined to affirm the Council's decision and refuse a permit, this is not material to the outcome of this application. I suggest that as part of any future proposal for the review site, further research be undertaken with the intent of determining whether the land has experienced 'significant ground disturbance' as defined by the Aboriginal Heritage Regulations 2007.

1. The decision of the Responsible Authority is affirmed. No permit is granted.

[1] The Council tabled a letter from Melbourne Water advising that the site, given its existing ground levels, is not subject to potential inundation as a consequence of sea level rise.

[2] I have considered all submissions presented by the parties although I do not recite all of the contents in these reasons.

[3] The precise nature of the commercial uses has not been identified, although the Council has assessed the proposal on the basis that they will be used for shops. Despite the Applicant's submission that a permit should provide flexibility in terms of the land use, had I decided to grant a permit, it would have been on the basis that the ground floor tenancies were used for the purpose of shops. I am not persuaded that it would be appropriate to grant approval for a reduction of the car parking requirement of an office use, when that use includes other uses that have a different parking requirement (such as a medical centre, for example) or may require a permit in its own right.

[11] [2007] VCAT 1764

[12] [2004] VCAT 2487

[13] [2003] VCAT 1884

[14] [2002] VCAT 808

[16] This figure has been calculated using a rate of 3-4 car spaces per 100 square metres of floor area, which I consider appropriate for shops within this activity centre context.

[17] Addie v Greater Geelong CC [2003] VCAT 1397; McDonald v Kingston CC & Ors [2009] VCAT 2601; and Stonnington CC v Kadil Pty Ltd [2007] VCAT 1438

[18] Regulation 28, Aboriginal Heritage Regulations 2007.

[19] Section 46, Aboriginal Heritage Act 2006 and Regulation 28, Aboriginal Heritage Regulations 2007

[20] Regulation 4 of the Aboriginal Heritage Regulations 2007