This permit is issued pursuant to the provisions of the relevant Planning Scheme and does not relieve the permit holder of the necessity to obtain a building permit pursuant to the Building Act 1993 prior to the commencement of any construction or works on any part of the site.

The Responsible Authority is directed to issue a permit in accordance with this Order, pursuant to Section 85(1)(b) of the Planning and Environment Act 1987.

1 This is an application under Section 77 of the Planning and Environment Act 1987 ("the Act") brought by the Permit Applicant for review of a decision of the Maribyrnong City Council ("the Responsible Authority") to refuse to grant a permit.

2 I advised the parties at the commencement of the hearing that I had conducted an inspection.

3 The proposal is for retention of seven solid metal roller shutters along the south facing wall of this building. The roller shutters face Barkly Street and cover the front windows and main entrance of the shop.

4 It is proposed that short films and images be projected on the roller shutters in conjunction with the Big West project, and that members of the local community, including artists and schools, compete for the opportunity to artistically paint the roller shutter doors.

5 The subject land is on the north side of Barkly Street at the northwest corner of Barkly Street and Donald Street. The subject land contains a single storey showroom which is occupied by an electrical store. The building is constructed to all boundaries.

6 The dimensions of the subject land are:

Frontage 30.48 metres

Depth 67.81 metres

Area 2067 square metres

7 Abutting the subject land to the west are mainly single storey shopfronts. Further west is a furniture shop/showroom and further west again is a residential development currently under construction, which comprises 93 apartments over ten storeys, with a restaurant, two shops and three offices.

8 There is a mix of single storey and double storey commercial premises to the east and south of the site.

9 There is a Council owned lot to the north of the subject land which operates as a carpark.

10 The subject land and surrounding area form part of the Footscray Activity Centre.

11 The subject land is covered by the Maribyrnong Planning Scheme and is in a Business 1 Zone which is the subject of Clause 34.01. A permit is required to construct a building or to construct or carry out works, pursuant to Clause 33.01-4.

12 The subject land is covered by a Development Contributions Plan Overlay, but this is not relevant to this proposal.

13 Reference was made to the following policies:

•

Clause 17.01 Activity Centres

•

Clause 19.03 Design and Built Form

•

Clause 21.04-4 Economic Development

•

Clause 22.03-1 Business 1 Zone and Business 4 Zone Policy (General Policy)

•

Clause 22.0303 Principles and Planning Policy for Footscray Business Centre

14 Reference was made to a document Roller Grilles and Shutters, Your Guide to Safety, Security and Good Design. One of the Grounds of Application for Review was that the Council should not apply policy retrospectively, and this Ground referred to this document. The document is not in the Planning Scheme. I was advised that it was developed in 2002 and adopted by the Council in May 2002. It is being looked at as part of the Municipal Strategic Statement review. I have not had regard to this document in coming to my decision in this matter.

1. The roller shutters do not meet the pertinent objectives of the state and local planning policies of the Maribyrnong Planning Scheme.

2. The solid roller shutters impact on the amenity of the streetscape.

3. The solid roller shutters will set an undesirable precedent for the Footscray Activity Centre.

1. Council should not apply a policy retrospectively.

2. The applicant's proposal sets an inclusive, original and positive precedent for the Footscray Activity Area.

3. The applicant's proposal meets the pertinent objectives of the state and local planning policies of the Maribyrnong Planning Scheme.

4. The solid roller shutters do not impact on the amenity of the streetscape.

17 The Council received a planning permit application (TP99/0130) on 19 April 1999 for buildings and works for installation of roller shutter grilles at the front of the subject premises. The application was not advertised and a permit was issued on 28 August 2003 to allow the installation of roller shutter grilles with conditions, including Condition 1(a) which read:

'the removal of the existing roller shutter grilles on the building and the replacement with roller shutter grilles in accordance with Council's Roller Grilles and Shutters Policy all to the satisfaction of the responsible authority within 60 days of the ate of this permit.'

18 Amended plans which satisfied Condition 1(a) were submitted to the Responsible Authority on 15 September 2003 and endorsed on 17 September 2003.

19 Roller shutters which had been erected without a permit had not been removed by the end of the 60 day periods specified in Condition 1(a), and the Responsible Authority advised the operator of the premises that enforcement action would commence if they were not removed.

20 I was advised that there were meetings and correspondence between the Responsible Authority and the Permit Applicant, and the Responsible Authority advised by letter dated 17 March 2005 that any further enforcement action would be adjourned for 60 days to allow for a new planning permit to be lodged. The subject permit application was lodged on 27 June 2005.

21 It was submitted for the Responsible Authority that the solid metal roller shutters presently in place create the perception of an unsafe and uninviting environment. It was submitted that there is merit in allowing local artists to project short films onto shutters as part of the Big West Festival, but the public art issue would need to be explored further once the issue of compliant roller shutter doors is resolved.

22 It was also submitted for the Responsible Authority that the solid roller shutters in place do not present a quality urban design outcome and detrimentally detract from the streetscape and public realm of Barkly Street.

23 Ms Pung, for the Applicant for Review/Permit Applicant, submitted that the proposal to project short films and images on the roller shutters in conjunction with the Big West project, or painting the roller shutters, would meet all of the planning objectives. Ms Pung submitted that replacing the roller shutters would result in substantial cost which would be an unfair burden on the Applicant for Review/Permit Applicant. She submitted that security issues in the area demand the provision of these roller shutters.

24 There is a common theme in the various policies. That theme includes promoting attractiveness of towns and cities, high standards in architecture and urban design, enhancing the appearance, amenity, safety and convenience of precincts, and attractiveness and image.

25 I do not consider that the solid metal roller shutters in place meet those objectives, and they present an unsafe and uninviting image. The concept of projecting short films and images on the roller shutter doors or painting those roller shutters may be an appropriate short term solution but I do not consider that they can be relied on in the medium or long term. It could be that in the medium to long term there will be significant graffiti problems. I understand the concerns of the Applicant for Review/Permit Applicant with respect to cost of replacing the roller shutter doors, but it would seem that these roller shutter doors have been erected without a permit and the Responsible Authority has already issued a permit which would require that they be replaced, but this is not being done.

26 The concerns of the Applicant for Review/Permit Applicant with respect to security would be met if the existing roller shutters were replaced by roller shutters that were partly transparent. The Responsible Authority indicated that it would accept such a provision. Partly transparent roller shutters should meet the requirements of the Applicant for Review/Permit Applicant and the concerns of the Responsible Authority. I consider that this would be an appropriate and desirable solution having regard to the security and aesthetic treatment of the public realm, and will also ensure security of the premises of the Applicant for Review/Permit Applicant.

27 I therefore consider it appropriate to direct the grant of a permit with such a condition. The Applicant for Review/Permit Applicant requested that a period of two years should be allowed for the existing roller shutters to be replaced but the Responsible Authority suggested a period of six months. I consider that two years would be excessive. A period of six months would enable the Applicant for Review/Permit Applicant to arrange for the replacement to proceed.

28 For the above reasons this application is allowed subject to conditions. It is appropriate for a permit to be granted, and I will so order.