1. There is a raft of policies in the MPS and PPF that are designed to ensure viable industrial land is preserved and protected from the degradation of non-industrial uses, particularly in significant industrial estates such as Moorabbin.
2. I am satisfied the use is consistent with these policies as it will assist in the revitalisation of this older industrial area. For the reasons outlined below, I find the use is compatible with the existing tenancies within the estate and it will not compromise the ability of other businesses to function safely and effectively with the new use.

IS THE USE ACCEPTABLE WITHIN AN INDUSTRIAL ZONE?

1. The applicant submits that whilst there are benefits for users and increased employment, the disbenefits are its location in an industrial estate where HRVs operate. It says these are significant issues and therefore the use will not provide any Net Community Benefit ('NCB').
2. Council argues the use will not negatively impact surrounding industrial uses as it will primarily operate during normal business hours and is consistent with existing uses. It says the proposed hours of operation are appropriate for the industrial context, subject to the inclusion of conditions on the permit.
3. The respondent argues that given the nature of this specific recreation activity, it is well suited to a light industrial area. It says the office/warehouse development found in modern industrial estates is a suitable built form for this type of use that can easily return to other industrial uses, once the tenant departs.
4. The respondent says that operational measures, such as a restriction on patron numbers and hours of operation, can be part of the PMP to be endorsed under the permit. It submits that the use is highly compatible with existing uses, as evident by the two existing gyms operating within the estate, as well as other health services. It acknowledges the presence of the loading procedures of other tenants and is confident that it is not incompatible with its operation. It notes:

Indeed, it would not be in its own business interests for it to pursue a proposal in this location if it has any such concerns.[10]

1. I acknowledge this estate contains tenancies that require HRVs to deliver goods to the warehouses. Indeed, I observed one such vehicle on my site inspection. However, I also observed the estate contains a variety of other uses including retailing, offices and gyms that do have the need for this type of vehicle to access the site. I also note that properties outside the estate include heavy industrial uses that utilise the existing road network.
2. I find the proposed use will be consistent with the range of other uses found in the estate, that includes two existing gyms. I consider the use will not detract from these existing uses given its scale, which can be managed through the PMP. I also note that there are no buildings and works and the tenancy can convert back to an 'as-of-right' industrial use after this use ceases. I therefore consider the use will not undermine the purposes of the zone.

WILL THE USE HAVE UNACCEPTABLE TRAFFIC IMPACTS IN THE SURROUNDING ROAD NETWORK?

1. The applicant submits the use will have unacceptable traffic impacts on the road network and surrounding businesses in the estate. It relies on the evidence of Mr Willson who predicts the use will generate up to 54 vehicle movements for each class. Whilst he considers this level of traffic can be accommodated within the surrounding road network, he has concerns about the nature of the existing traffic movements within the estate and their impact on the safety of children. This will be discussed further below.
2. The respondent relies on the evidence of Mr Furness who concludes that there are no traffic engineering reasons to refuse this application. He says existing traffic volumes in the estate are low, based on traffic counts that were taken in Roberna Street in July 2025. He considers this is consistent with its function as a local street. This survey also revealed that the review site access point carries 58-64 vehicle movements in the peak period (one vehicle movement per minute) which is a modest level of traffic.
3. Mr Furness notes that during business hours, the use is limited to a maximum of 10 patrons per time. He predicts this will generate 14 vehicle trips per hour. He acknowledges that most of these trips will be in the internal accessway, adjacent to the review site. He considers there will be no significant delays entering or exiting the site given it is 6.4 metres wide, which allows for two-way vehicle flow. He considers this level of traffic is low and will have no material impact on the operation of the internal accessway or nearby businesses.
4. Council agrees with the respondent and says the traffic claims have not been substantiated by any evidence of Mr Willson.

1. The parties agree that operation of the use outside business hours, and on weekends, is not in contention as nearby businesses that rely on HRVs, are generally not operating. Therefore, my findings will concentrate on the traffic impacts during the day where there will be classes that have a maximum of ten patrons.[11]
2. I am satisfied that the increase in traffic generated by the use will have no detrimental impacts on the operation of Roberna Street and the internal accessway. I have come to this conclusion as both witnesses agree that this level of traffic can be accommodated within the surrounding road network. Conditions on the permit to restrict the patron numbers during the weekdays will minimise the traffic impacts and the potential for pedestrian conflict within the estate.

WILL THE USE PRESENT AN UNACCEPTABLE PEDESTRIAN SAFETY RISK?

1. The applicant argues traffic and vehicular movements from nearby tenancies will put vulnerable users at risk given the intended market is children aged 5-14. It says this estate is home to multiple businesses where HRVs and forklifts routinely operate which have poor sight lines, particularly for small children, when reversing.
2. The applicant relies on the evidence of Mr Willson who has visited the site on multiple occasions and observed other franchises in operation in Melbourne. He observed that there is a high level of HRV and machinery activity within the estate compared to other similar warehouse/industrial areas. He observed one HRV and forklift operating in the accessway unloading from the truck on his inspection. He also relies on the video footage provided by the applicant that shows two Medium Rigid Vehicles ('MRV') being unloaded by a forklift adjacent to the review site.
3. Given these observations and based on his experience, Mr Willson concluded that there is a significant safety risk posed by the use where children/pedestrians could potentially be required to interact with HRVs or MRVs and machinery. He also conducted a road safety risk assessment using the parameters of the Austroads Guide to Road Safety[12] ('Austroads Guide').
4. This assessment includes a Risk Matrix that indicates the priority for risk mitigation by considering crash severity and the likelihood of a risk given the interaction of pedestrians and HRVs within the car park at a speed of 10 kilometres per hour. Mr Willson concludes that the severity would be 'serious injury' given that children are involved. He also expects that the likelihood/exposure of a child in the accessway in front of the site and a HRV or machinery is 'likely'. Based on this assessment, he concludes that there is an extreme priority to mitigate the risks, regardless of the cost.
5. Mr Willson considers the PMP is not capable of addressing the risk associated with the use. He considers that suggesting parents will supervise their children is inconsistent with what occurs in practice and puts onus on other existing uses to be aware of the presence of children within the car park. He says this will require other tenants to change the way they operate to ensure the shared accessways operate in a safe manner. He considers that it will no longer be practical for adjacent tenants to have HRVs or MRVs reversing within the car park or for them to utilise-the parking aisle for occasional loading, which is typical for business parks.
6. Mr Willson notes that possible mitigation measures could be the inclusion of a pedestrian path along the south side of the parking aisle adjacent to the shared car parking and a pedestrian crossing at the entrance to the review site. He considers this option unviable as it would reduce the aisle width and prevent two way vehicle movements. Another measure could be speed signs which he considered would have little impact on pedestrian safety as the speeds are already low.
7. The respondent is confident that with endorsement of a PMP, which includes a requirement for active engagement with its immediate neighbours, potential risks can be appropriately managed. It submits the following safety measures can be implemented in the PMP to mitigate risk:
   • All patrons are required to register prior to attending the site using an electronic communication system;
   • Patrons/parents will have to check in and check out children via a digital system which also includes staff monitoring;
   • Scheduling classes through a booking system that prevents classes from being overcrowded.
   • Implementation of a risk assessment tool, which is a requirement for the National Disability Insurance Scheme ('NDIS') registration, to identify and mitigate potential hazards;
   • Ensuring staff are trained in first aid;
   • Requiring all children up to 13 years of age to be dropped off and picked up by a parent/guardian and written consent for children 13-17 to arrive without a parent/guardian; and
   • Provision of arrival and departure instructions to parents as part of the booking confirmation;
8. The respondent relies on the evidence of Mr Furness who has conducted a survey of heavy vehicles entering and exiting the estate. These results show that over the survey period[13], there was a total of 24 heavy vehicle movements, which averaged three per hour. The survey showed that Small Rigid Vehicles ('SRV')[14] comprise up to 75% of all truck movements.
9. Mr Furness considers the safety of pedestrians generated by the use is satisfactory, as:
   • The accessway is a low-speed environment that includes a speed hump next to the review site;
   • Children under 18 will have to be signed in and out by parents and therefore will be accompanied by an adult in the car park;
   • Pedestrians are not travelling a long distance within the car park but will be crossing the accessway near the site;
   • There is a modest number of vehicles using the accessway;
   • The width of the accessway allows patrons and vehicles to share the space;
   • The number of truck movements is low during business hours with most being SRVs; and
   • The PMP will formalise the parent check in and out system and provide other measures to ensure the safety of patrons.
10. Council agrees with the respondent and submits that given the modest nature of the use, that includes a maximum operating capacity of four classes, safety measures can be implemented in the PMP.

1. Based on my site inspection, it is likely that most parents will park in the shared car park on the south side of the accessway, near the review site and will walk along, and across the accessway to enter the review site. I agree with Mr Furness that this is short distance to travel to reach the review site. Even if parents park in Roberna Street, I am satisfied the accessway is wide enough (6.4 metres) to enable the cars and trucks to share the space with pedestrians.
2. Mr Willson's main concerns are the potential conflict between pedestrians (children) and HRV and machinery using the accessway. He considers the incidence of these vehicles in the accessway is higher than any other similar industrial estates. I note this opinion is based on his own observations and the videos supplied to him by the applicant.
3. Whilst Mr Willson's evidence includes a risk assessment based on Austroads criteria, I note that he acknowledges this guide states that it is:

a general indication only and that professional engineering judgement is required with its usage.'[15]

1. I find that professional engineering judgement should include any assessment of empirical evidence. I found this lacking in Mr Willson's evidence as he has relied on observations and selective videos provided by the applicant for review whereas Mr Furness has conducted his own survey of truck movements in the estate. I accept Mr Furness's evidence that the number of truck movements (3 per hour) is not unusually high compared to other industrial estates and comprises predominately SRVs (i.e. 75%).
2. I do not share Mr Willson's concerns about the effectiveness of the PMP. I am satisfied that it will adequately address the safety concerns raised by the applicant through the implementation of requirements such as:
   • Utilisation of an electronic communications system to advise parents/guardians of the existing parking conditions, including trucks that may be using the accessway;
   • Requiring children to be accompanied by parents/guardians to sign in and out of the class, which will include supervision in the car park; and
   • Communication between the operator and adjoining and nearby tenants regarding truck movements.
3. I agree with the respondent that given the nature of the business, it is not in their best interests to have any safety concerns at this location. I also find that given the modest nature of the use (i.e. a maximum of 10 children per class during business hours), there will be limited opportunities for interactions between parents/children and trucks.
4. I find the context of this site is also relevant as it contains many non-industrial uses operating in the estate (including two gyms) which have co-existed without any accidents, to date.
5. I am mindful that if the Owners Corporation rules were enforced, there would be less potential for pedestrian conflict in the communal car park and accessway. This includes use of parking spaces for other purposes (i.e. storage of shipping containers) and the parking/propping of trucks in the accessway that requires forklifts to move goods across the accessway into the tenancies. This is a modern industrial estate that includes one loading bay per occupancy which is designed to accommodate truck movements and the unloading of goods into the warehouses in this dedicated area.

1. The submitted plans do not include any bicycle parking. Mr Furness concludes that three bicycle spaces are required (one employee space and two patron spaces) in accordance with Clause 52.34-5.
2. The respondent has no objection to the provision of the spaces as there is adequate space within the building. However, Mr Furness considers the waiver of the formal bicycle parking requirement acceptable given the nature of the use and that informal staff parking can be provided in the store.

1. I find the waiver of bicycle parking acceptable as it is likely patrons will drive to the site to drop off/collect children for each class. Given the floor area and layout, I agree with Mr Furness that there is potential to informally park one employee bicycle in the store.

1. Conditions 5 and 6 of the Notice of Decision to Grant a Permit states:

No more than ten (10) patrons permitted to be on the premises between 9:00am - 5:00pm.

No more than thirty-two (32) patrons are permitted to be on the premises outside these hours and within the extended hours of operation[16] for the business.

1. Council has suggested the inclusion of a new condition 6 that reads:

No more than thirty-two (32) students (persons participating in classes) are to be on the premises at any one time.

1. It says the modifications to the condition is intended to limit the number of people who drive to the review site and therefore restrict unreasonable traffic impacts.
2. The respondent submits the conditions, as worded, are ambiguous. It says that it understood the extended hours of operation to mean Monday to Friday, 5.00pm-10.00pm and Saturday and Sunday, 8.00am to 4.00pm. It says this is consistent with the internal traffic referral.
3. The respondent considers that by adding the words 'Monday to Friday' to the end of Condition 5 will clarify the situation. It also says that Mr Furness has considered the impact of 32 patrons and three staff members on Saturday and Sunday and concludes that these numbers can be accommodated during these times from a traffic-safety perspective.
4. The respondent has also requested the deletion of Condition 7 in the Draft Conditions that reads:

No more than thirty-two (32) students (persons participating in classes) are to be on the premises at any one time.

1. The respondent has agreed to include additional specifications in the PMP to outline the communication protocols for patrons and adjoining and nearby owners.

1. Based on discussions held at the end of the hearing, the parties agreed to amend the wording of the conditions to refer to 'class participants' instead of patrons. They also agreed to amend Condition 5 to refer to the hours of 9.00am to 5.00pm, Monday and Friday. I consider these changes will give a clearer picture of the capacity of the use during business hours.
2. I therefore consider Condition 7 on the Draft Conditions can be deleted given that Condition 6 has been clarified.

1. For the reasons given above, the decision of the responsible authority is varied. A permit is granted subject to conditions.

Waive the bicycle parking requirements of Clause 52.34-5

1. Before the development starts, amended plans to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the plans will be endorsed and will then form part of the permit. The plans must be drawn to scale with dimensions. The plans must be substantially in accordance with the advertised plans prepared by Canter Town Planning, dated 16/12/2024, but modified to show:

a) The changes identified within the patron management plan, required under condition 8 of this permit.

1. The use as shown on the endorsed plans must not be altered without the written consent of the Responsible Authority.

1. The use must operate only between the hours of:

Or otherwise as approved by the Responsible Authority in writing.

1. Not more than three (3) staff are permitted on the premises at any one time, or otherwise as approved by the Responsible Authority in writing.
2. No more than ten (10) class participants are permitted to be on the premises between 9:00am - 5:00pm, Monday to Friday.
3. No more than thirty-two (32) class participants are permitted to be on the premises outside the hours of 9:00am - 5:00pm, Monday to Friday.

1. The amenity of the area must not be detrimentally affected by the use, through the:
   1. Transport of materials, goods or commodities to or from the land.
   2. Appearance of any building, works or materials.
   3. Emission of noise, artificial light, vibration, smell, fumes, smoke, vapour, steam, soot, ash, dust, wastewater, waste products, grit or oil.
   4. Presence of vermin.
   5. Any other way.

1. Concurrent with the endorsement of plans, a patron management plan (PMP) to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the patron management plan will be endorsed and will then form part of the permit. The plan must include, but is not limited to, the following:

(a) Dedicated pedestrian pathways, speed humps, walkways etc.

(b) Any other safety measures.

(c) Communication protocols for safety procedures for parents/guardians of class participants and owner/occupiers of other tenancies in the business park near the site.

1. The patron management plan must be implemented to the satisfaction of the Responsible Authority. The patron management plan must not be modified without the written consent of the Responsible Authority.

1. This permit as it relates to use will expire if one of the following circumstances applies:

(a) The use is not commenced within two (2) years of the issue date of this permit.

(b) The use is discontinued for a period of two (2) years.

In accordance with Section 69 of the Planning and Environment Act 1987, an application may be submitted to the responsible authority for an extension of the periods referred to in this condition.

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

[4] Alphington Grammar School v Yarra CC [2024] VCAT 148, Hobsons Bay Yacht Club Inc v Minister for Planning [2022] VCAT 765 and Wertheimer v Bayside CC (No.2) [2019] VCAT 1689.

[6] Tribunal photograph on-site inspection.

[7] The respondent provided a copy of the Owners Corporation Rules entitled Rules of 66 Levanswell Road Moorabbin Body Corporate.

[8] Amendment VC283 was gazetted on 2 September 2025. This clause was amended to strengthen heritage policy. It is not considered that it has any impact on the findings in this decision.

[9] Amendment VC283 included the Industrial and Commercial Land Classifications (Department of Planning, 2025) as a policy document to this clause which states the review site is an existing regionally significant industrial area. It is also referenced in Clause 72.02.

[11] The use proposes 32 patrons after 5.00pm on weekdays and on weekends.

[12] Part 6: Road Safety Audit (Austroads Guide).

[13] Conducted on 22 July 2025 between 9.00am to 4.00pm.

[14] A SRV is a rigid truck with a maximum length of 6.4 metres.