498-514 Bell Street & 33 Westgate Street, Pascoe Vale South

26, 27, 28, 29 September 2011, and 21 February 2012.

Piedimonte Supermarket & Liquour & Ors v Moreland CC [2012] VCAT 204

Piedemonte's Supermarket & Liquor, Bell Street Community Action Group, M & P Buonomo

498-514 Bell Street & 33 Westgate Street, Pascoe Vale South

1. The decision of the responsible authority in relation to permit application no. MPS/2010/486 is varied.
2. In permit application MPS/2010/486 a permit is granted and directed to be issued for the land at 498-514 Bell Street & 33 Westgate Street, Pascoe Vale South in accordance with the endorsed plans and on the conditions set out in Appendix A. The permit allows:
   • On the land at 498-514 Bell Street:
     • (a) Buildings and works in association with the development of a five storey building comprising basement car parking, supermarket, and dwellings;
     • (b) Use of the land for dwellings;
     • (c) Reduction in the car parking requirements of the Planning Scheme;
     • (d) Alteration of access to a road in a Road Zone Category 1.
   • On the land at 33 Westgate Street:
     • (a) Construction of two or more dwellings on a lot
3. Costs are reserved.

Mr C Townshend SC and Mr D Scally of Best Hooper Solicitors. They called expert evidence from Mr V Connor, Town Planner, Mr S Hunt, Traffic Engineer, Mr M Jacques, Landscape Architect, Mr S McGurn, Town Planner and Mr M Lee, Economist.

Mr A Walker of counsel instructed by Wantrup and Associates. Mr Walker called expert evidence from Ms D Donald, traffic engineer.

Ms L Hicks of counsel appeared at the Directions Hearing on 21 February 2012.

Mr M Hughes, town planner appeared at the Directions Hearing on 21 February 2012.

Mr D Kowalczyk appeared at the Directions Hearing on 21 February 2012.

It is proposed to construct two buildings on the site. On land at Bell Street, the application proposes to construct a five storey building with a two level basement car park, containing a supermarket, retail premises and 99 apartments. On the land at Westgate Street, it is proposed to construct a part three level and part two level building containing 27 apartments.

Applications under Section 80 and 82 of the Planning and Environment Act 1987.

Business 1 Zone (Bell Street) and Residential 1 Zone (Westgate Street). Bell Street is included within a Road Zone Category 1.

• Clause 34.01-1 (Use of the land for dwellings)
• Clause 34.01-4 (Buildings and works in association with the development of a five storey building comprising basement car parking, supermarket, and dwellings)
• Clause 52.06-1 (Reduction in the car parking requirements of the Planning Scheme)
• Clause 52.29 (Alteration of access to a road zone)

• Clause 32.01-4 (Construction of two or more dwellings on a lot)

The subject site is 'L' shaped and comprises five separate land parcels with a combined site area of 6634 square metres.

The site has four street frontages to Bell, York, Westgate and Wills Street. The site currently contains a derelict supermarket building fronting Bell and York Streets, and vacant land to the rear, which was previously used as a car park. The site has a history of commercial use, having previously been used as a supermarket and a petrol filling station. The site also contains a single storey dwelling facing Westgate Street.

The site has a frontage to a main road (Bell Street) and the other surrounding streets are local, residential streets. The surrounding area is predominantly residential, comprising a mix of single and double storey dwellings. A service station is located opposite the review site on the south side of Bell Street. Commercial buildings occupy the land on the eastern corner of Bell street and York Street.

Azzure Investments Pty Ltd [2004] VCAT 2027, Burns Bridge Services Pty Ltd v Greater Bendigo City Council [2005] VCAT 1155, Burns Bridge Services Pty Ltd v Greater Bendigo City Council & Ors [2005] VSC 422, Timberglow Pty Ltd v Casey CC [2007] VCAT 1290, Save Bright Action Group v Alpine SC [2008] VCAT 1425

1. In May 2011, the Moreland City Council determined to grant a planning permit for the development of the site for residential and commercial purposes. It is a decision that a number of objectors to the proposal have requested be reviewed by the Tribunal. The permit applicant is also seeking a review of a number of the conditions contained within the notice of decision.
2. The application proposes to construct two buildings on the site. On land at Bell Street, the application proposes to construct a five-storey building with a two level basement car park. This building will contain a supermarket, retail premises and 99 apartments. On the land at Westgate Street, the application proposes to construct a part three level and part two level building which will contain 27 apartments. Vehicular access to the basements car park and a loading bay for the supermarket are proposed from York Street.
3. The principal issues in this matter are:
   • Is the residential component consistent with the state and local planning policy framework for the site?
   • Is the development of a supermarket on this site appropriate?
   • Are the proposed car parking, loading and access arrangements acceptable?
   • Will the proposal unreasonably affect the amenity of the area through an increase in traffic volumes?
   • Is the overall design and height of the development appropriate having regard to the neighbourhood character of the area?
   • Will the proposal adversely affect the amenity of the adjoining properties?
   • Will the proposal achieve a reasonable standard of amenity for its future occupants?
4. 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, and having inspected the site and surrounding area, we have decided to direct the grant a permit. Our reasons follow.

Is the residential component consistent with the state and local planning policy framework for the site?

1. This proposal has two distinct components, the residential apartments and the supermarket and retail premises. We will firstly consider whether the residential component is consistent with the state and local planning policy framework of the Moreland Planning Scheme.
2. State planning policy encourages the development of new housing in or close to activity centres or on strategic development sites that have good access to services and transport.[1] Both Council and the permit applicant submit that the site is a strategic development site that is close to public transport, and is therefore suitable for more intensive housing forms.
3. Mr Clarke submits that we should not be unduly influenced in our assessment of the site's suitability by the Business 1 Zoning which applies to the front, Bell street portion of the site. He submits that this zoning was applied by default in 1999 when the planning scheme was amended to introduce the VPP format schemes. He submits that the small Business 1 Zone, which applies to this site in no way makes the site comparable to an activity centre. He submits that the zoning of the land related to its former use as a supermarket, rather than strategically identifying the site for intensive purposes. Mr Clarke submits that state planning policy focuses on the redevelopment of sites within and around activity centres, and as this site is not within an activity centre, the intensity of any development of the site should be tempered accordingly.
4. With respect to Mr Clarke's submission on this point, we make the observation that we are required to assess the application on the basis of the planning scheme as we find it. It is not our role to speculate on the basis of the council's decision to zone the land in the way that it has.
5. In terms of the local planning policy framework, Council's Municipal Strategic Statement (MSS) identifies that Moreland's population is growing, but also aging.[2] The MSS identifies that as a result of demographic changes there is a need for greater and more diverse housing options to meet the population needs.[3] Council's MSS also seeks to clearly identify areas where higher density housing is encouraged.[4] These areas are generally within designated activity centres, urban villages and transport corridors.[5]
6. Whilst Bell Street is identified as an Arterial Road,[6] neither subject site nor the small shopping centre at Bell Street and Melville Road to the east of the review site have been identified as activity centres, and the subject site is not located within an identified transport corridor.[7] Notwithstanding this, the site does exhibit many of the attributes that qualify it as a strategic redevelopment site.[8] It is a large site which is clearly capable of containing ten or more dwellings. It is a site located on a bus route and within walking distance of trams that operate along Melville Road. The site is also within walking distance of the Melville Road Shopping Centre. Mr McGurn described this centre as a Neighbourhood Activity Centre, and although not classed as such in the MSS, we consider that it does have a range of facilities which we would expect to find in a neighbourhood activity centre or at the very least in an activity 'node' as Mr Walker described it.
7. We find that the subject site is suitable for more intensive forms of development. We also agree with the objector's submissions that any development of the site is required to responds to its context. The extent to which this proposal achieves that outcome is a matter that we address in more detail subsequently.

Is the development of a supermarket on this site appropriate?

1. The subject site is located within a Business 1 Zone. Under the provisions of this zone, a shop, which includes a supermarket, is a section 1 use.[9] A permit is not required to use land for the purpose of a supermarket.[10] A planning permit is only required for development, and in this case a reduction in parking.
2. Notwithstanding the zoning of the land, the objectors submit that it is not appropriate to locate a supermarket on this site, and the policy framework of the planning scheme, which emphasises the need to consolidate retail uses within defined activity centres, does not support this aspect of the proposal.
3. Mr Walker submits that this proposal is appropriately categorised as an out centre development. He submits that Clause 17.01-2 of the planning scheme aims to manage out of centre development in metropolitan Melbourne by discouraging proposals for new or the expansion of single use retail, commercial and recreational facilities outside activity centres. He submits that under this policy, preference is given to locations in or on the border of an activity centre, and out-of-centre proposals are only considered where the proposed use or development is of net benefit to the community in the region served by the proposal.
4. Mr Walker submits that the review site is not within an activity centre and it is not adjacent to an activity centre. In this respect he submits that the shopping strip at the Melville Road/Bell Street intersection is not identified as an activity centre in the local policy framework. In the alternative, Mr Walker submits that if those shops were to be classified as an activity centre, it is separated from the review site by a residential strip and a harsh pedestrian environment along Bell Street.
5. Mr Walker referred us to decisions of the Tribunal in which applications for out of centre development had been refused.[11] However neither of the cases relied on by Mr Walker supports his submission that the current proposal should be subject to the same tests required to be applied to a proposal where a permit is required for the use of the land. In Timberglow Pty Ltd v Casey CC, the proposal was for the use and development of land zoned Residential 1 for a restricted recreation facility and restaurant. A permit was required for the use of the land. In Azzure Investments Pty Ltd it was proposed to use and develop land zoned Mixed Use for a motel, office and supermarket. A permit in that case was also required for the use of the land.
6. In neither of those cases was the Tribunal required to assess whether a proposal is an out of centre development in circumstances where a permit is not required for the use of the land. Ms Davis did refer us to a decision of the Tribunal in which these circumstances were considered in the context of a proposal for a supermarket on the edge of an activity centre in a rural town.[12] The Tribunal in that case directed the grant of a permit for the proposed supermarket, but we note that the policy context applying to the site was very different to that applying to this site.
7. Mr Walker also relied on the decision of Senior Member Liston in Burns Bridge Services Pty Ltd v Greater Bendigo City Council.[13] In that case the Senior Member considered the impact a supermarket might have on the form and function of a centre, and found that these issues are relevant to the consideration of an application for a supermarket in a Business 1 zone. Mr Liston arrived at his findings in Burns Bridge notwithstanding the fact that the ambit of discretion available under the planning scheme, was limited to a consideration of buildings and works, and where the use of the land for the purpose of a shop (supermarket) was not subject to the grant of a permit.
8. That decision was taken on appeal to the Supreme Court.[14] Justice Osborn upheld the Tribunal's decision, but did so on the basis that the strategic planning considerations affecting the site were such that it was open to the Tribunal to find that the development was premature. His Honour commented:

...a requirement for a development permit does not transform a section 1 use into a section 2 use, but the consequences for land use of a development permit, may in appropriate circumstances, constitute factors which either favour or count against the grant of a permit.

1. Mr Walker submits that it is therefore open to the Tribunal to consider the use consequences of the proposed development, and that a consideration of net community benefit should therefore be undertaken. Mr Walker submits that if the grant of a permit for a full line supermarket on the subject land leads to the closure of the Piedimontes supermarket which is located in the Melville Road group of shops, the function of this shopping centre will downgrade over time, an outcome that could not be regarded as a community benefit. He submits that this outcome needs to be balanced against any benefits flowing from the grant of a permit.
2. We agree with Mr Townshend's submission that care needs to be exercised when reliance is placed on the Burns Bridge decision in support of a submission that the use consequences of this development can or should be considered.
3. In the Burns Bridge decision, His Honour relevantly emphasised that the Tribunal had reached it conclusions because of the particular facts of the case. His Honour noted that the facts of the case were such that the Tribunal had been persuaded that the principal issue was about the sequence of development. His Honour stated that the ".....notion of 'orderly planning' necessarily embraces some consideration of the effect on use of the sequence of development." [15] With respect to the Tribunal's consideration of the issue of prematurity, His Honour commented as follows;

..In my view it is clear that in the present case the Tribunal deliberately applied this concept of prematurity to the facts before it. It ultimately concluded that the strategic planning circumstances rendered the grant of a permit "premature." It did not reject the proposal outright. Insofar as it considered the relevance of land use considerations to a permit application for development approval, it ultimately applied such considerations specifically within the context of asking itself whether the proposal should be regarded as 'premature'...[16]

1. In terms of the proposal's impact on the achievement of the Council's strategic objectives, His Honour also concluded that;

......if the determination of a permit application under the current controls has the potential to materially impact upon the implementation of a relevant strategic plan or seriously entertained planning proposal then it may be refused as premature. It may not be in the public interest to grant the permit if the granting of the particular application has the capacity to materially impact upon the satisfactory implementation of a plan of broader strategic significance.[17]

1. His Honour also commented on the ambit of discretion available to the Tribunal under the planning scheme, where a permit was required for buildings and works and the use of the land for the purpose of a shop did not require a permit. His Honour found that;

Whilst it may be accepted that the discretion which the Tribunal was called upon to exercise was granted for the purpose of controlling the development of land and is not a discretion granted for the purpose of regulating use, it does not follow that the use consequences of a development permit will necessarily be irrelevant to the exercise of the discretion.

In a particular case they may be relevant to the question whether a particular sequence of development constitutes orderly planning. Thus, a requirement for a development permit does not transform a section 1 use into a section 2 use, but the consequences for land use of a development permit may, in appropriate circumstances, constitute factors which either favour or count against the grant of the permit. In the present case it was open to the Tribunal to conclude that the strategic planning considerations affecting the site rendered a decision as to the appropriate form of its development premature.[18]

1. We are not persuaded by Mr Walker's submission that the proposed development would have the adverse consequences identified in his submission, and that it is not supported by the policy framework. There are also a number of factors that distinguish the present case from the circumstances that were before the Tribunal in Burns Bridge. As we have discussed previously the site is zoned Business 1 and it has a long history of retail use. The purpose of the zone is to implement policy and to encourage the intensive development of business centres for retailing and other complementary commercial, entertainment and community uses. No permit is required to use land for the purpose of a supermarket (shop). The use of this large, disused site for a supermarket is entirely consistent with the purpose of the zone.
2. Significantly, we have not been able to conclude that the proposal before us is fundamentally contrary to the policy framework of the planning scheme. Unlike the circumstances in Burns Bridge, the Council has not taken steps to change the zoning of the land, the effect of which would be to make the proposed use prohibited, or at least subject to the grant of a permit. In this matter, there are no significant strategic or policy considerations that would lead us to conclude that the proposed development is premature.[19]
3. It is significant that Mr Walker is not able to substantiate his client's concerns about the closure of the supermarket in the Melville Road shops, or the decline in the ability of those shops to service the community, resulting from the grant of a permit. Mr Walker did not call evidence in support of his submission on these matters. Mr Lee's evidence that existing stores in the local catchment would continue to operate at healthy levels following the establishment of the proposed supermarket, was not therefore refuted by contrary expert evidence. In terms of identifying a net community benefit, it is Mr Lee's evidence that the new supermarket would provide additional employment opportunities (approximately 55 full time equivalent positions for the supermarket, 45 jobs elsewhere in the wider community), and improved supermarket provision and competition in the area. The construction phase of the development was likely to require the equivalent of 15 full time workers, with a further 25 jobs created indirectly through the construction phase
4. We are satisfied therefore, that the provisions and policy framework of the planning scheme support the development of this site for a supermarket.

Are the proposed car parking, loading and access arrangements acceptable?

1. The planning scheme states that a new use must not commence until the required car spaces have been provided on the land.[20] The combination of the proposed uses on the site generates a requirement for 457 parking spaces.
2. The application provides 240 spaces for the Bell Street building and 27 spaces for the Westgate Street building. The permit applicant seeks a waiver of the visitor parking associated with the Westgate building, and a reduction of 185 spaces for the Bell Street building.
3. Mr Hunt in his evidence advised that the car parking is proposed to be allocated as follows:
   • 1 space per dwelling (126 spaces)
   • 19 spaces for supermarket staff
   • 122 spaces for supermarket customers and residential visitors
4. Mr Hunt undertook an empirical assessment of the likely parking demands of the proposal. This assessment indicated that the parking demand generated by the proposal is as follows:
   • 0.82 spaces per 1 bed dwelling (71 spaces)
   • 1.16 spaces per 2 bed dwelling (45 spaces)
   • 0.1 visitor spaces per dwelling (13 spaces)
   • 4.5 spaces per 100 square metres for supermarket (128 spaces)
5. Mr Hunt concluded that the proposed car park would comfortably accommodate the likely car parking demand for the proposed use.
6. Ms Donald, who also gave traffic evidence in this matter, agreed with Mr Hunt's empirical assessment of the likely car park demand for the residential component, but considered that the rate for the supermarket should be five spaces per 100 square metres. This rate was based on draft parking rates that have recently been exhibited,[21] rather than on a separate empirical assessment. If we applied the rates suggested by Ms Donald, the car parking demand for the supermarket would increase to 142 spaces, and a total demand of 271 spaces for the development, leaving a shortfall of four spaces for the development, which would need to be provided on street.
7. There are a number of parking restrictions within York Street and for this reason Ms Donald suggested that the additional spaces would be provided north of Westgate Street. Ms Davis provided a plan identifying that there are a number of on street car parks available in the vicinity of the subject site, including within York Street.
8. We are satisfied sufficient parking has been provided for this development. Mr Hunt's empirical assessment as a measure of parking demand is to be preferred to a reliance on a generic standard contained within a document that has yet to be adopted by government. In any event, if we were to rely on Ms Donald's higher rate for the supermarket we are satisfied that there is sufficient capacity within the existing street network to accommodate any overflow parking.
9. A loading bay has been provided with access directly onto York Street. The loading bay will accommodate 12.5 metre rigid vehicles which will be required to reverse in from York Street.
10. Ms Donald gave evidence that significant design changes would be required to the intersection of Bell and York Streets to facilitate truck movements. It is her evidence that because this would have design implications for the proposed development a functional layout plan to the satisfaction of VicRoads and a plan showing the design changes should be submitted prior to a decision being made on this application.
11. With respect to this matter, VicRoads advised us that they do not object to the application, but are unable to confirm that a functional layout of the intersection treatment would not necessitate changes to the layout and design of the building. Having regard to Ms Donald's evidence and VicRoad's submission, we provided the permit applicant with the opportunity to prepare a functional layout plan, obtain VicRoad's approval and to circulate amended plans resulting from the approved functional layout plans. All parties were provided with the opportunity to comment on the amended plans.[22]
12. The permit applicant provided the Tribunal and other parties with a plan which met VicRoad's requirements for the intersection on 22 December 2011. This resulted in the following changes to the development:
    • Increased setback of the building from the intersection to enable truck movements
    • Reconfiguration of the car parking, service and lobby areas
    • Deletion of dwellings A101, A201, A301 and A401
    • Reconfiguring dwellings A102, A103, A202, A203, A302, A303, A402 and A403.
    • Dwellings A103, A203, A303 and A403 now all contain two bedrooms
13. There are no changes to the number of car parking spaces to be provided on site. The changes have altered the car parking allocation as follows:
    • 1 bed dwellings - 65 spaces
    • 2 bedroom dwellings - 50 spaces
    • Visitor spaces - 13 spaces
    • Supermarket - 128 to 142 spaces
    • Total empirical demand - 256 to 270 spaces
14. On 9 February 2012, the Tribunal received a letter from Wantrup and Associates which advised that their client had concerns about the revised proposal. We did not receive submissions from the council or the other parties within the time specified by the Tribunal's Order.
15. In response to the amended plans and the submissions received we make the following findings:
    • As the proposal will result in truck movements into York Street, it is no longer appropriate to have signage restricting truck movements into York Street. Should Council deem it necessary they may place restrictions on vehicles that are larger than that needed for the loading bay.
    • With respect to pedestrian safety, we are satisfied that the arrangements, which are supported by VicRoads, will provide for adequate pedestrian safety.
    • We are also satisfied that the redesign of the building is generally consistent with the swept path diagrams provided to the Tribunal by Ms Donald in her evidence.
    • Whilst the Mobil Petrol station has been converted into a 7/11 petrol station and convenience store, we are satisfied that the new occupier has not substantially changed the traffic conditions of the Bell and York Street intersection.
16. Other than the access required for trucks accessing the loading bay, Mr Hunt, Ms Donald and VicRoads were generally satisfied with the access arrangements.
17. There was some concern raised by residents, particularly those from York Street about the proposed delivery hours and number of deliveries anticipated by the proposed development. Council had included a condition on its NOD to restrict the delivery times, in an effort to contain the amenity impacts on residents in York Street to an acceptable level. The permit applicant has suggested the preparation of a loading management plan, which would not only restrict the loading times, but also provide details on the way loading is to occur. We have included a condition requiring a management plan to be approved by the council.

Will the proposal unreasonably affect the amenity of the area through an increase in traffic volumes?

1. One of the main concerns raised by residents was that the proposal would result in an unreasonable increase in traffic volumes, including truck movements through the local street network.
2. Complicating our consideration of this issue was the calculations provided within the report prepared by Cardno Consultants accompanying the planning permit application, which indicated a much lower level of traffic flow into York Street than is now anticipated. Mr Hunt in his evidence submitted that there was no error in the actual figures, but the traffic information was likely collected on a day when access to York Street was restricted, perhaps due to road works.
3. It was Ms Donald's evidence that almost all the traffic generated by the supermarket and residential dwellings on the site will access and egress the site via York Street. She submitted that York Street has left in/left out restrictions and Bell Street, almost all traffic to and from the north and west could be expected to use the local street network to the north.
4. Mr Hunt provided a detailed assessment of the likely increase in traffic volumes, and the impact on the capacity and the performance of the local street network. He estimated that the proposal would generate a total of 3,477 vehicle movements per day, 50% of which would originate from the north. York Street, which will contain the primary access points for the proposal will experience an increase in traffic volume of 900 to 2100 additional vehicle movements per day. Other nearby streets will also experience an increase in traffic flows.
5. The proposed development will therefore have an impact on the amenity of the area as a consequence of the increased traffic volumes. On balance however, we have decided that this impact does not warrant refusal of the application. The impacts associated with this proposal must be considered in the context that the review site is a large site within a Business 1 Zone that was formerly used as a supermarket (albeit smaller than the proposal). It is a site located on a main road and constitutes a strategic redevelopment site. Because the site is in a disused state, there is no traffic currently being generated from it, but any analysis of the traffic impacts cannot rely on this existing condition as a starting point for that analysis. The analysis must have regard to and be based on a development of the site which is supported by the planning scheme.
6. The development will create a noticeable increase in traffic volumes in the surrounding streets, and in particular York Street. However, we agree with Mr Hunt that the increases in volumes can be managed throughout the road network. We agree with the evidence that the impacts can therefore be contained within levels that are acceptable within the context of the scale and intensity of development that is supported by the planning scheme.
7. We acknowledge that should it prove necessary, the council may need to initiate traffic management measures within the local road network to mitigate the effects of the increase in traffic. To this end, Mr Townshend submitted a draft condition which requires the preparation of a road traffic management plan. This condition requires a review of the traffic situation six months following commencement of the supermarket, to determine the actual traffic impacts of the development and if necessary recommend appropriate traffic calming measures. We agree that this is an appropriate condition and have included it on the permit.

Is the overall design and height of the development appropriate having regard to the neighbourhood character of the area?

1. Having decided that the proposed development of the site is suitable for residential and commercial purposes and the likely car parking and traffic impacts of the proposal are acceptable, we will now consider whether the overall design response is acceptable.
2. It was the view of the objectors that the proposed development failed to respect the character of the area due to its scale, height and form. Mr Clarke submitted that whilst the planning scheme has not identified the site as a landmark site, in a practical sense the site forms that role for the municipality. Mr Clarke submitted that the proposed development will change the identity of the local area, and care needs to be taken to ensure that the design responds appropriately to the neighbourhood character.
3. Council's Neighbourhood Character Policy seeks to provide guidance in assessing whether a proposal is consistent with the character of an area. The policy divides the municipality into various character areas, as well as distinguishing between commercial and residential sites. The subject site is within precinct 18, and is located in both a commercial and residential area, reflecting the zoning of the land.
4. The data sheet for precinct 18 provides an individual preferred character statement for the commercial and residential areas, which are contradictory. Within Residential Character areas, new developments are encouraged to reinforce the positive elements of the existing character. In commercial areas, mixed use developments with a residential component are encouraged. An increase in dwellings on the commercial sites is also encouraged. A objective of the precinct for this development is:

To ensure that the redevelopment of redundant commercial/industrial sites in predominately residential areas is responsive to the existing neighbourhood character at the interfaces between Commercial Character Areas and Residential Character Areas.

1. The character of the area reflects its zoning. The buildings fronting Bell Street are commercial in nature, with many of them in a disused state. Building heights vary, however the building on the north eastern corner of York and Bell Street is two storey, with a parapet that extends the roof form so that it is akin to three stories in height. A petrol station is located on the southeast corner of Bell Street and Reynolds parade. The Melville Road activity centre contains a mixture of single and two storey buildings constructed in a variety of styles, and finishes.
2. The residential properties within the area contain single and two storey dwellings, many typical of those constructed in the 1950s and 60s, although there are examples of more recently constructed dwellings in the neighbourhood. Again building forms and materials are mixed.
3. Mr Clarke submitted that the proposal's height and bulk failed to respond appropriately to the residential context of the site. Mr Connor disagreed, stating that the building's height and form responded well to its context, with built form providing an appropriate transition between the site's commercial and residential context. Mr McGurn gave evidence that the built form was an appropriate response to the site and its context.
4. Having heard all submissions and evidence with respect to the overall height and built form, we consider that the proposal is an acceptable response to its context. Whilst the five storey element is taller than its surrounds, it will be located in the south eastern corner of the site which can more readily accommodate more robust built forms.
5. The development then has a transition to a three and two storey height and scale at the residential interface in York and Westgate Street. We are satisfied that this is an appropriate response to the character of the area. We have reached this conclusion having regard to the site's status as a strategic development site, on which higher residential densities and therefore larger built forms are encouraged. The proposed buildings also exhibit a reasonable level of articulation in their design and makes provision for reasonable levels of landscaping.
6. The subject site currently contains 18 trees, which will be removed to accommodate the proposed development. Mr Clarke submitted an Arborist report prepared by Mr Rob Murray, which indicates that four of the trees (two red iron barks and two spotted gums) are healthy specimens and worthy of retention. Mr Clarke submitted that these trees make a significant contribution to the character of the area, and should be retained.
7. Mr Jacques, who gave landscaping evidence for this proposal, also provided the Tribunal with an Arborist report, which was prepared by Mr Rob Galbraith in response to the report prepared by Mr Murray. Mr Galbraith concluded that the four trees were either structurally poor or causing problems with the existing infrastructure. He also considered that if the trees were retained the trees would over time experience limb drop.
8. Having viewed the site and surrounds, and after considering the evidence, we do not consider that it is necessary for the trees to be retained. Whilst they are large, we do not accept that they make such a significant contribution to the character of the area as to be worthy of retention. We also note that the trees are not protected through a planning scheme control, nor through a local law.
9. In this case, we consider that it would be a better response to the character of the area for these trees to be removed, and a new landscape scheme implemented for the site.
10. We are generally satisfied that the proposed landscaping and fencing arrangements as proposed by Mr Jacques, are an appropriate response to the landscape characteristics of the site. In particular, we consider that the choice of lemon and olive trees as well as the kitchen garden is a clever response to the streetscape, which will provide an enhanced level of amenity for the occupants of the proposed development.
11. The fencing proposed by Mr Jacques will achieve an acceptable balance between maintaining privacy for the development's occupants whilst enhancing the public realm.

Will the proposal adversely affect the amenity of the adjoining properties?

1. Whilst the site is large, its four frontages limits the number of sensitive interfaces the site has to surrounding properties. The exception is where the site adjoins 35 Westgate Street and to a lesser extent 2-4 Willis Street.
2. Ms Buonomo was concerned with the impact of the proposed development on her private open space. A garden has been established in this area, and our site inspection confirmed that it is an area that it is clearly utilised by its owners. Ms Buonomo was also concerned with the amount of daylight received in her existing windows, the setback of the proposed development, the proposed pedestrian path to access dwellings B106-B110.
3. Shadow diagrams submitted by the applicant indicate that the proposed development will increase the amount of shadowing cast into Ms Buonomo's private open space. We also agree with the Ms Davis, Ms Buonomo and Mr Clarke that the extent of built form when viewed from the private open space at 35 Westgate Street will exhibit excessive bulk. The built form closest to this interface, whilst two storey will present as one long visual mass. This will not be ameliorated by the limited amount of landscaping possible along the western boundary of the site, nor through the building's overall design. We have therefore retained the condition imposed by the council to delete dwellings B210, B211 and B212, which will lower the built form immediately adjoining Ms Buonomo's private open space to single storey.
4. With respect to the reduced front setback, we consider that this an acceptable response to the streetscape. We are also satisfied that the proposal will not adversely affect the amount of daylight received by Ms Buonomo's eastern windows.
5. It is significant that the proposal demonstrates compliance with the relevant amenity standards of Clause 55 (overlooking, overshadowing, daylight to windows).
6. Whilst we understand Ms Buonomo's concerns about the pedestrian pathway, which is shown on the landscape plan prepared by Mr Jacques, we do not consider that this will have an unreasonable impact on the amenity of the adjoining properties through noise.

Will the proposal achieve a reasonable standard of amenity for its future occupants?

1. Many of the conditions imposed by Council seek to increase the private open space provision for the occupants of the proposed development. We consider that these conditions are unnecessary as we find that the proposal private open space arrangements for each dwelling are acceptable.
2. Whilst the private open space for dwellings B101 to B105 will be provided within the front setback of the proposed development, we consider that this is acceptable in this instance due to the size and type of the proposed dwellings. As discussed previously, we consider that the proposed fencing and landscaping arrangements will achieve the right balance between enhancing the public realm whilst respecting privacy. Therefore we have not required the provision of first floor balconies for these dwellings.
3. We have also not required the balconies to be a minimum of eight square metres. Although this is required by the standard,[23] we consider that the proposal easily achieves the objective of the standard which is to:

To provide adequate private open space for the reasonable recreation and service needs of residents.

1. Whilst the area of private open space is acceptable, we consider that the balcony areas for dwellings B207, B208, B209 and B302 needs to be more clearly allocated to each dwelling. We have therefore reworded condition 1(b) to this effect.
2. With respect to the private open space arrangements for the Bell Street Building we are satisfied that the small balconies will be supplemented by the large internal courtyard which will provide a significant area of open space for the occupants of the building.
3. Whilst many of the dwellings are small, we consider that they will still provide a reasonable level of amenity for their occupants. We note that dwellings A122, A124, A126, A128, A130 and A132 do not have any glazing to there living rooms, which are orientated to the north. We consider that this may have been an oversight, and have required the provision of a north-facing window to these dwellings. This will provide an outlook to the courtyard area, as well as providing northern light and should improve the internal amenity of these dwellings.

1. We have already canvassed many of the conditions that were under review, and the draft conditions which were provided by Ms Davis and Mr Townshend. However, for clarification, we make the following findings:

1. We have previously stated that we are generally satisfied with the size of the proposed balconies, although we consider that the balconies for apartments B207, B208, B209 and B302 need to be clearly allocated for each dwelling. We have therefore reworded condition 1(b) and deleted condition 1(e).

1. We have reworded these conditions to require fencing that is generally consistent with the plan proposed by Mr Jacques.

1. We have reworded this condition to be consistent with the revised wording suggested by Ms Davis in the edited version provided at the hearing.

1. We have deleted this condition, as was agreed to by Council.

1. We have reworded these conditions to reflect the evidence of Mr Hunt.

1. During the hearing there was considerable debate about the width of the garages and the desirability of using these areas for laundry and storage purposes as well as vehicle parking. After hearing the evidence of Mr Hunt we are satisfied that the garages are of an acceptable width to accommodate a vehicle, however it is apparent that the proposed laundry cupboard and storage space will encroach into this space.
2. We therefore consider that the storage and laundry facility should be designed so that a vehicle can use the garages. We have reworded the condition to this effect.

1. This condition required the provision of 6 square metres of storage for each dwelling, as required by the standard.[24] The revision B plans, which were tabled at the hearing show the storage arrangements for each dwelling. Each dwelling will be provided with a minimum of 1.8 square metres of storage space. We are satisfied that these facilities are adequate for the needs of the occupants of the building.

1. We have deleted this condition, as condition 3 contains the relevant landscaping requirements.

1. We have retained this condition. As we have previously discussed we consider the deletion of dwellings B210, B211 and B212 is appropriate to mitigate the bulk from the development.

1. These conditions have been added as agreed by the parties.

1. We have reworded this condition to reflect the landscape plan prepared by Mr Jacques.

1. We have reworded this condition as suggested by Ms Davis.

1. This is a major development, and we consider that it is appropriate that some works in the public realm occur as a result of this development.
2. The footpath should be reinstated and repaired as necessary, and given the scale and nature of the proposed development is appropriate for public seating and bicycle parking spaces to be provided by the applicant.
3. We have therefore reworded this condition to require a public works plan showing our requirements.

1. We have reworded this condition to require that a signage display plan be prepared, rather than a blanket ban on signage within the supermarket and retail windows.

1. With respect to these two conditions, we have reworded these conditions to reflect the revision C plans prepared by the permit applicant.

1. It follows from the above reasons that it is our conclusion that the decision of the responsible authority should be varied and a permit issued.
2. The permit will include the conditions contained in the Notice of Decision to Grant a Permit issued by the responsible authority with modifications which have regard to the submissions and evidence of the parties and the matters which arise from our reasons.

498-514 Bell Street & 33 Westgate Street, Pascoe Vale South

(a) Buildings and works in association with the development of a five storey building comprising basement car parking, supermarket, and dwellings;

(b) Use of the land for dwellings;

(c) Reduction in the car parking requirements of the Planning Scheme;

(d) Alteration of access to a road zone

(a) Construction of two or more dwellings on a lot

1. Before the, use and development commences, 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 and three copies must be provided. The plans must be generally in accordance with drawing numbers TP00 (A), TP01(A), TP02(A), TP03, TP04(A), TP05(A), TP06(A), TP07 (A), TP08(A), TP09(A), TP10 (a), TP11(A), TP12(A), TP13 and TP14, but modified to show:

1. The balconies to apartments Al33, Al31, Al29 and Al27 screened or redesigned to limit overlooking into 2 and 4 Wills Street in accordance with Standard B21. 2. The balconies allocated to apartments B207, B208, B209 and B302

1. Front fencing generally in accordance with sketch plan prepared by Occulus dated September 2011

d) A landscape strip along the Wills Street frontage of the car park.

1. The columns in each car park located to not affect entry to the car spaces and to not block door openings generally in accordance with the dimensions outlined in the Australian Standard for Off-Street Parking (AS/NZS2890.1).

1. All parking spaces with a wall adjacent to one side of the parking space at least 0.3m wider, to allow for opening car doors in accordance with the Australian Standard for Off-Street Parking (AS/NZS2B9O.l).

1. Within the at grade car park accessed from Wills Street the blind aisle continue 1/2 metre past the last parking space to improve access/egress to and from the last space generally, in accordance with the Australian Standard for Off-Street Car Parking (AS2890.1).
2. Storage must be provided for each dwelling and apartment, with dimensions generally in accordance with the Revision B Plans dated 27 September 2011.

1. The proposed vehicle crossings with 1 metre straight splays on both sides commencing where the footpath meets the nature strip and finishing at the kerb in accordance with Council's Standard Vehicle Crossing design.

1. The public right-of-way between 4 and 6 Willis Street and at the rear of 4 Willis Street.
2. The recommendations of the Acoustic report by Acoustic Logic Consultancy, dated 24 May 2010.
3. An Environmental Sustainable Design plan in accordance with condition 11.
4. The location of any air-conditioning units and other plant equipment, including any screening.
5. A schedule of all proposed exterior decorations, materials, finishes and colours, including colour samples (3 copies in a form that can be endorsed and filed).
6. Deletion of dwellings B210, B211 and B212 located in the northern portion of the development.
7. The south east corner of the building redesigned to enable the upgrade of Bell and York streets required by conditions 27 and 28, generally in accordance with the revision D plans (dated 19/12/11 being the plans approved by VicRoads for the intersection of Bell Street and York Street)
8. Any changes as a consequence of complying with the Functional Layout Plan to be approved under Condition 28, generally in accordance with the Revision D Plans (dated 19/12/11 being the plans approved by VicRoads for the intersection of Bell Street and York Street).
9. Signage for display on windows in accordance with the Signage Display Plan to be approved under Condition 23.

1. The provision of a north facing window to dwellings A122, A124, A126, A128, A130, A132.

1. The development as shown on the endorsed plans must not be altered without the written consent of the Responsible Authority.
2. Prior to the commencement of any development works, a landscape plan must be submitted to and approved by the responsible authority. The landscape plan must be generally in accordance with the Occulus Landscape Plan Project No. M-1141 dated 8 September 2011 and provide the following:

1. A schedule of all proposed trees, shrubs and ground covers (including numbers, size at planting, size at maturity and botanical names), as well as sealed and paved surfaces. 2. Details of the location and type of all paved and sealed areas. Extensive hard surfaces are not supported. The adoption of porous/permeable paving, rain gardens and other water sensitive urban design features is encouraged.

1. Removal of the land on the landscape plan that identifies a pedestrian path along the central driveway.

1. Removal of the label that identifies a pedestrian path along the central driveway. 2. Fencing design detail in accordance with the Fences plan 3. Mail boxes. 4. New canopy trees with a planting size of 200 litres
2. Following completion of the development the areas designated as garden areas on the endorsed landscape plan must be maintained and used as garden areas.
3. After the removal of the concrete slab and prior to any works associated with sensitive use, or prior to the commencement of construction or carrying out works pursuant to this permit, or any works associated with a sensitive use, an amended (phase 2) Environmental Assessment Report must be submitted to and be to the satisfaction of the Responsible Authority. The Responsible Authority may require the applicant to contribute financially to an independent review of the environmental site assessment information by a suitably qualified environmental professional . The amended Environmental Assessment Report is to be conducted by a professional practitioner with relevant experience in the field. The owner must comply with the findings of the site assessment to the satisfaction of the Responsible Authority. The amended Environmental Assessment Report must:

1. Specify the name and qualifications of the person who has conducted the Report; 2. Provide comment on the potential for off-site contamination to have migrated to the subject land from neighbouring land. Soil sampling and analysis of the subject site may be required where access to definitive information regarding neighbouring land is not obtainable or is inconclusive;

1. Specify the industrial process or activity, waste or substance in respect of which the Report was conducted;

1. Specify the segment of the environment in respect of which the Report was conducted; 2. Include an evaluation of the environmental quality of the relevant segment of the environment; 3. Include an assessment of any clean up that is necessary, including recommendations relating to the carrying out of the clean up, and any compliance requirements to enable the land owner to ensure that the land is suitable for the proposal; 4. Include a further recommendation to the Responsible Authority as to whether the condition of the land is such that an Environmental Audit should be conducted taking into consideration the proposed use.
2. If pursuant to condition 5 of this permit an Environmental Audit is required, then prior to the commencement of the development allowed by this permit, either:
   1. A Certificate of Environmental Audit for the land must be issued in accordance with Section 53Y of the Environment Protection Act 1970 and provided to the responsible authority; or,
   2. An Environmental Auditor appointed under Section 53S of the Environment Protection Act 1970 must make a Statement in accordance with Section 53Z of that Act that the environmental conditions of the land are suitable for the use and development that are the subject of this permit and that statement must be provided to the responsible authority.

Where a Statement of Environmental Audit is issued for the land, the buildings and works and the use(s) of the land that are the subject of this permit must comply with all directions and conditions contained within the Statement.

Where a Statement of Environmental Audit is issued for the land, prior to the commencement of the use, and prior to the issue of a Statement of Compliance under the Subdivision Act 1988, and prior to the issue of an Occupancy Permit under the Building Act 1993, a letter prepared by an Environmental Auditor appointed under Section 53S of the Environment Protection Act 1970 must be submitted to the responsible authority to verify that the directions and conditions contained within the Statement have been satisfied.

Where a Statement of Environmental Audit is issued for the land, and any condition of that Statement requires any maintenance or monitoring of an ongoing nature, the Owner(s) must enter into an Agreement with Council pursuant to Section 173 of the Planning and Environment Act 1987. Where a Section 173 Agreement is required, the Agreement must be executed prior to the commencement of the permitted use, and prior to the certification of the plan of subdivision under the Subdivision Act 1988. All expenses involved in the drafting, negotiating, lodging, registering and execution of the Agreement, including those incurred by the responsible authority, must be met by the Owner(s).

1. Prior to any remediation works being undertaken in association with the Environmental Audit, a 'remediation work& plan must be submitted to and approved by the responsible authority. The plan must detail all excavation works as well as any proposed structures such as retaining walls required to facilitate the remediation works. Only those works detailed in the approved remediation works plan are permitted to be carried out prior to the issue of a Certificate or Statement of Environmental Audit.
2. A Loading Management Plan must be submitted to and approved by the Responsible Authority. Supermarket loading must be conducted in accordance with this Plan. The Plan must provide for the following
   1. Loading must occur from within the loading bay designated on the approved plans under this permit.
   2. Loading may only occur between the hours of

1. Trucks requiring to reverse into the loading bay may only do so between the hours of
   1. Monday to Friday 7 am to 4 pm
   2. Saturday 7 am to 9 pm

1. At no time may trucks larger than 12.5 metres be used for the loading and unloading of supermarket goods.
2. The loading bay doors should remain closed when loading and unloading supermarket goods.
3. All deliveries to the supermarket must be made through the loading bay only.

8A. A Parking Management Plan must be submitted to and approved by the Responsible Authority for the basement car parks. Car parking within the basement car parks must be conducted in accordance with this plan. The plan must provide for the following:

1. The allocation of staff car parking and for resident car parking within the basement level 2 car park.
2. The provision for shop customer and resident visitor car parking in basement level 1.

1. The provision of supermarket car parking rates not less than 4.5/100 sqm net floor area

1. The provision of 1 car parking space to each residential dwelling.

8B. Prior to the commencement of development, a Road Traffic Management Plan must be submitted to and approved by the Responsible Authority. The plan must show the following to the satisfaction of the Responsible Authority:

1. Signage/devices to discourage large delivery vehicles from travelling north in York Street beyond the supermarket loading bay entrance.
2. Traffic slowing devices in the immediately surrounding street network.

1. Parking restrictions as necessary to facilitate trucks reversing into the loading bay

1. A requirement that, after six months of the commencement of the supermarket use, a revised plan is to be submitted for the approval of the Responsible Authority. The Revised Plan is to detail the impacts of the supermarket use on the immediate street network and to recommend any appropriate traffic calming measures. Any such measures are to be implemented by the Permit Holder or a cash contribution is to be made to Council for these works provided that the value of the works or cash contribution shall not exceed $30,000.

1. A Waste Management Plan must be submitted to and approved by the responsible authority. It must be generally in accordance with the Leigh Design Waste Management Plan 21 May 2010. Once approved under this permit the Plan must be implemented and complied with at all times to the satisfaction of the responsible authority unless with the further written approval of the responsible authority.
2. Prior to the completion of the basement, a Public Works Plan must be prepared to the satisfaction of the Responsible Authority. The plan must show:

1. Replacement and reinstatement of pedestrians paths 2. Street trees in accordance with the landscape plan

1. Public seating neat the Bus on Bell Street, in accordance with the requirements of the Director of Transport

1. Location of bicycle parking along the York and Willis Street frontage of the development 2. Any residual public works requirements as a consequence of the Functional Layout Plan to be approved under Condition 28 (which may include a pedestrian safety rail at the street edge of the pedestrian footpath generally at the corner of York Street and Bell Street, and a minimum 3.6 metre footpath width).

The approved Public Works Plan must be implemented to the satisfaction of the Responsible Authority prior to the completion of construction.

1. Prior to the commencement of the development, an amended report to the satisfaction of the responsible authority must be submitted to and approved by the responsible authority. The Environmentally Sustainable Development (ESD) Management Plan must be in accordance with the Plan prepared by Simpson Kotzman, dated 21 May 2010 but modified to show:

1. Building Users Guide including details of the design elements, technologies, operational practices and maintenance is developed and made available to the building owner and residents. 2. deleted

1. Low Volatile Organic Compound (VOC) paints to be used internally in accordance with Green Star Multi-Residential Vi criteria.

1. Heat capture system provided as described within the Environmentally Sustainable Development Report or a system with equivalent environmental benefit.

e) Refrigerant leak detection system for retail refrigeration plant.

1. Commissioning generally in accordance with CIBSE Commissioning Codes orASHRAE Commissioning Guidelinel-1 996 (for mechanical services only) and CIBSE Commissioning Codes for the other Services.
2. Individual water and servicing meters for individual apartments.
3. All timbers AFS of FSC certified.

1. Recycling of construction and demolition waste to achieve 80% by weight.
2. All works must be undertaken in accordance with the endorsed Environmentally Sustainable Development (ESD) Management Plan to the satisfaction of the responsible authority. No alterations to the ESD Management Plan may occur without written consent of the responsible authority.
3. Prior to the occupation of any dwelling approved under this permit, a report from the author of the Environmentally Sustainable Development (ESD) Management Plan report, approved pursuant to this permit, or similarly qualified person or company, must be submitted to the responsible authority. The report must be to the satisfaction of the Responsible Authority and must confirm that all measures specified in the Environmentally Sustainable Development (ESD) Management Plan have been implemented in accordance with the approved Plan.
4. The recommendations of the Accessibility Report by MGAC dated 21 July 2010 must be incorporated into the design and layout of the development and must be implemented to the satisfaction of the responsible authority prior to the occupation of the development. When submitted and approved to the satisfaction of the responsible authority, the Accessibility Report and associated notated plans will form part of this permit.
5. Prior to the occupation of the development, all visual screening measures shown on the endorsed plans must be installed to the satisfaction of the responsible authority. All visual screening and measures to prevent overlooking must be maintained to the satisfaction of the responsible authority. Any screening measure that is removed or unsatisfactorily maintained must be replaced to the satisfaction of the responsible authority.
6. Prior to the occupation of the development, a vehicle crossing must be constructed in every location shown on the endorsed plans to a standard satisfactory to the responsible authority (Moreland City Council, City Infrastructure Department).
7. Prior to the occupation of the development, any existing vehicle crossing not to be used in this use or development must be removed and the kerb and channel, footpath and nature strip reinstated to the satisfaction of the responsible authority (Moreland City Council, City Infrastructure Department).
8. Bicycle signage at least 300mm wide and 450mm high showing a white bicycle on a blue background must be erected at the residential entrance directing cyclists to the location of the bicycle parking as required by Clause 52.34-5 of the Moreland Planning Scheme.
9. Before the commencement of the use, an automatic system of external light operating between dusk and dawn with no direct light emitted onto adjoining property, must be installed and maintained on the land and maintained, to the satisfaction of the Responsible Authority to illuminate access to the dwellings located in the northern portion of the site within the three storey building.
10. All telecommunications and power connections (where by means of a cable) and associated infrastructure to the land must be underground to the satisfaction of the responsible authority.
11. All stormwater from the land, where it is not collected in rainwater tanks for re-use, must be collected by an underground pipe drain approved by and to the satisfaction of the responsible authority.
12. Deleted
13. A Signage Display Plan must be submitted to and approved by the Responsible Authority. The plan must show areas for display of signage on the Bell Street window frontage. The signage must be displayed in accordance with this Plan.

1. The permit holder must take all reasonable steps to ensure disruption to bus operations along Bell Street is kept to a minimum during construction. Foreseen disruptions to bus operations must be communicated with mitigation measures to the Director of Public Transport and bus operators one (1) week prior.
2. The permit holder must ensure that public transport infrastructure is not altered without the consent of the Director of Public Transport or damaged. Any damage to public transport infrastructure must be rectified to the satisfaction of the Director of Public Transport at the full cost of the permit holder.

1. There shall be no direct vehicle access to Bell Street.
2. Prior to the commencement of use of the site, the applicant is required to upgrade the intersection of Bell Street and York Street to adequately accommodate pedestrians and turning traffic associated with the development to the satisfaction of VicRoads.
3. A Functional Layout Plan of the upgrade of the intersection of Bell Street and York Street is required to be submitted to Vic Roads for review and approval prior to the commencement of works on the site. The plan must be generally in accordance with the approved functional layout plan (Cardno, Project No. CG109640, Amendment P4 dated 25 October 2011).
4. Appropriate signage, line marking and pavement marking shall be designed installed in accordance with VicRoads traffic Engineering Manual Volume 2 Signage and Markings (January 2010).
5. Within three months of the commencement of use of the, supermarket, a Traffic Impact Assessment shall be submitted to VicRoads and the Responsible Authority for approval which examines post opening traffic conditions on Bell Street. The report shall identify any safety or operational issues on arising from traffic movements to/from Bell Street, and the need for any mitigating treatments.
6. There shall be no protrusion of soil nails or any structure into the Bell Street Road Reserve without explicit written permission being obtained from VicRoads.
7. There shall be no waste collection associated with the development undertaken on Bell Street.
8. All signage must not be animated, flashing or reflective.
9. Any signage lighting (internal or floodlit) is installed and maintained to ensure there is no glare towards motorists or spillage of light onto motorway.
10. All signs are installed totally within the site boundary line and to ensure they do not obscure the sightlines of motorists.
11. Any redundant crossovers to the site from Bell Street shall be removed and the kerb, channel, footpath and nature strip reinstated to the satisfaction of Responsible Authority, and at no cost to VicRoads.
12. The developer shall be responsible for the relocation and reinstatement of any trees, road furniture and any other services that may be required in this work, to the satisfaction of the Responsible Authority, and at no cost to VicRoads.
13. Work site traffic management shall be in accordance with "Road Management Act 2004- Worksite Safety Traffic Management - Code of Practice" and AS 1 742.32009 Part 3 Traffic control devices for works on roads. If Traffic congestion becomes excessive at anytime, the contractor must undertake measures to ease congestion.
14. A traffic management plan is to be submitted to VicRoads for its consideration at least 14 days prior to the commencement of works on the road reserve. No traffic management devices are to be erected on Bell Street until VicRoads issues authorisation for the erection of those devises in accordance with the traffic management plan.
15. This permit will expire if one of the following circumstances applies:

1. the development is not commenced within two (2) years from the date of issue of this permit; 2. the development is not completed within four (4) years; and

1. the use is not commenced within four (4) years from the date of issue 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.

[8] The objective of Clause 16.01-3 is to identify strategic redevelopment sites for large residential development in Metropolitan Melbourne. The associate Strategy is to identify strategic redevelopment sites that are:

• In and around Central Activities Districts.
• In or within easy walking distance of Principal or Major Activity Centres.
• In or beside Neighbourhood Activity Centres that are served by public transport.
• On or abutting tram, train, light rail and bus routes that are part of the Principal Public Transport Network and close to employment corridors, Central Activities Districts, Principal or Major Activity Centres.
• In or near major modal public transport interchanges that are not in Principal or Major Activity Centres.
• Able to provide 10 or more dwelling units, close to activity centres and well served by public transport.

[9] There was no dispute about the need for a permit to use the land in the Business 1 zone for a supermarket.

[11] Timberglow Pty Ltd v Casey CC [2007] VCAT 1290, and Azzure Investments Pty Ltd [2004] VCAT 2027.

[12] Save Bright Action Group v Alpine SC [2008] VCAT 1425

[13] [2005] VCAT 1155

[14] Burns Bridge Services Pty Ltd v Greater Bendigo City Council & Ors [2005] VSC 422

[19] Following the hearing we did receive a submission from Wantrup Solicitors on behalf of Piedimonte's Supermarket & Liquor and Andrew Mugerwa alleging that the council had developed or is developing a Housing and Retail Strategy and that this had not been made known to the Tribunal during the hearing. At the directions hearing convened by the Tribunal following the receipt of this correspondence, the council advised that the council is undertaking a review of its MSS and had commissioned a number of reports to inform that review. A Retail and Housing Strategy has been commissioned but is not completed, and has not been adopted by the council. At the directions hearing Ms Hicks acknowledged that, having heard the council's explanation, the strategy is not a seriously entertained planning proposal and the Tribunal cannot place any weight on it.

[21] Parking Provisions Review, The Car Parking Advisory Committee 2011, Department of Planning and Community Development

[22] Order of the Tribunal dated 7 October, 2011.