Victorian Civil and Administrative Tribunal|2011-03-22

For the reasons set out in our order dated 25th January 2011, together with our acceptance of the responsible authority's and proponent's agreement an appropriate acoustic treatment of the building, we conclude that we should order that a permit be granted, subject to appropriate conditions.

Construction of a five storey building containing 28 dwellings and two commercial tenancies (comprising shops, food and drink premises (other than a hotel or tavern) or offices, use of part of the land as an office, a reduction of the standard car parking requirements and a waiver of the loading bay requirements.

Before the 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 the amended plans, (filed with the Tribunal, and dated 19.11.10), but modified to show:

The parapet height above Units 1.05 and 1.06 reduced by 500 mm 2. Obscure glazing to a minimum height of 1.7 metres above floor level to the windows on the west elevation of Units 2.07 and 3.07

The bicycle parking area increased in size to allow for each bicycle parking space to be 1.2 metres long, (using "Ned Kelly" type hanging racks), and 0.4 metres wide, and allowing for a minimum 1.5 metre wide access aisle in accordance with the specifications in Bicycle Victoria's Bicycle Parking Handbook. The total number of bicycle parking spaces, ("Ned Kelly" and "Mona Lisa" type combined), is to be no less than 28

Measures to ensure adequate avoidance of sleep deprivation from the various noise sources associated with the passage of trains and the operation of the railway gates in Gaffney Street in accordance with the recommendations of the environmental noise assessment report prepared by Vipac Engineers & Scientists Ltd dated 11 February 2011, including implementation of Option 1 at point 7.2 and Option 2 at point 7.3 of the report 2. Any modifications arising as a result of amended ESD Assessment Report required by condition 9 of this permit 3. Any modifications arising as a result of the Disability Access Plan required by condition 13 of this permit

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).

The use and development as shown on the endorsed plans must not be altered or modified unless with the further written approval of the responsible authority.

The ongoing management of the dwelling component of the land must be undertaken by Housing Choices Australia, or an alternative accredited affordable housing association registered in the state of Victoria for the provision of affordable housing. Specifically, all persons who reside on the land must be either recipients of a government pension or benefit or on low or moderate incomes, and must also meet the eligibility criteria for affordable rental housing as determined from time to time by the State or Federal Government.

Prior to the occupation of the dwellings, an Affordable Housing Management Plan must be submitted to and approved to the satisfaction of the responsible authority. When approved the plan will be endorsed and will then form part of the permit. The Management Plan must establish a set of 'house rules' for the use, to be complied with to the satisfaction of the responsible authority. The plan must detail the management of the use of the site and include requirements in relation to the maintenance, cleaning, garbage storage, noise, use of communal areas, pets, moving and vacating, supervision and security of the site. The implementation of the management plan must be undertaken by the owner and/or operator to the satisfaction of the Responsible Authority.

Before the development commences, three copies of a Construction Management Plan to the satisfaction of the responsible authority must be submitted to and approved by the responsible authority. When approved the plan will form part of the permit. The plan must address, but not be limited to, the following:

Hours of construction. 2. Methods to contain dust, dirt and mud within the site, and the method and frequency of clean up procedures.

Delivery and unloading points and expected frequency. 2. A liaison officer for contact by residents and the responsible authority in the event of relevant queries or problems experienced. 3. The movement of construction vehicles to and from the site must be regulated to ensure that no traffic hazards are created in and around the site. 4. Parking facilities for construction workers. 5. Measures to minimise the impact of construction vehicles arriving at and departing from the land. 6. An outline of requests to occupy public footpaths or roads, and anticipated disruptions to local services. 7. The processes to be adopted for the separation, re-use and recycling of demolition materials. 8. Measures for prevention of the unintended movement of building waste and hazardous materials and other pollutants on or off the site, whether by air, water or other means.

Measures to minimise the amount of waste construction materials; the provision for the recycling of demolition and waste materials; and the return of waste materials to the supplier (where the supplier has a program of reuse or recycling).

Measures to minimise noise and other amenity impacts from mechanical equipment and demolition/construction activities, especially outside of daytime hours. 2. The provision of adequate environmental awareness training for all on-site contractors and sub contractors.

The Construction Management Plan approved under this permit 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.

The owner and/or occupier must ensure through correct site management practices that mud, dirt or dust is not transferred from the site onto adjoining public roads to the satisfaction of the responsible authority. In the event that roads are affected, the owner must upon the direction of the responsible authority, take the necessary remedial action, to the satisfaction of the responsible authority.

The permit holder must take all reasonable steps to prevent the circulation of dust from the building site during construction to adjoining properties to the satisfaction of the responsible authority.

Prior to the endorsement of plans, the Environmentally Sustainable Development (ESD) Assessment Report prepared by Sustainable Development Consultants dated November 2010 must be modified to fully detail implementation of the ESD initiatives in terms of responsibilities for management, maintenance and monitoring by a suitably qualified environmental engineer or equivalent expert to the satisfaction of the Responsible Authority. The modified ESD Assessment Report will be endorsed as part of this permit. The recommendations of the report 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 any dwelling.

All works must be undertaken in accordance with the endorsed 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.

Prior to the endorsement of plans, an environmental sustainability plan generally in accordance with that prepared by Ecologically Sustainable Development, or a report by an appropriately qualified person or company, must be submitted to the responsible authority for approval pursuant to this permit. The report must be to the satisfaction of the responsible authority and, when approved, will become part of the permit. The environmental sustainability 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.

Hot water to the new dwelling(s) must be from a gas-boosted solar hot water system or other system with similar or enhanced energy efficiency to the satisfaction of the responsible authority.

Prior to the endorsement of plans, the Disability Access Plan submitted with the application must be modified by a suitably qualified access auditor to include floor layouts drawn to scale and with dimensions for the adaptable dwellings to the satisfaction of the responsible authority. The modified Plan will be endorsed as part of this permit. The Plan must provide for, but not be limited to, the following:

Vehicular and pedestrian access into the buildings; 2. Access to the lifts;

The provision of Braille indicators for the lifts; 2. The use of contrasting paving or surface materials to assist the vision impaired; 3. Some apartments to be specifically adapted to provide access for all, including bathrooms and toilets; 4. Emergency exits; and 5. Car parking.

When submitted and approved to the satisfaction of the responsible authority, the Disability Access Plan and associated notated plans will form part of this permit.

The Waste Management Plan prepared by Wastewise Environmental dated 22 November 2010 approved under this permit 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.

The area set aside for the storage of garbage bins and recycling containers must be ventilated and constructed with an impervious floor. This area is to be designed and constructed before the occupation of the development, and is to be kept in a clean and tidy state to the satisfaction of the responsible authority.

Prior to the occupation of the development, a Car and Bicycle Parking Management Plan must be submitted to and approved by the Responsible Authority. When approved, the plan will be endorsed and will then form part of the permit. Management of the car and bicycle parking provided in association with the use must be in accordance with the plan to the satisfaction of the Responsible Authority. The Plan must detail the means by which the on-site car parking and bicycle parking spaces approved under this permit will be allocated and managed.

Prior to the occupation of the development a Green Travel Plan (GTP) must be prepared by a suitably qualified person to the satisfaction of the Responsible Authority. The GTP must:
1. Describe the location of the development site in the context of alternative modes of transport and objectives for the GTP.
2. Outline GTP measures for the development, including, but not limited to:
  - (i) Household welcome packs;
  - (ii) Possible incentives (e.g. Provision of Met Cards through rental/ownership of a dwelling);
  - (iii) Cycle parking and facilities included; and
  - (iv) GTP management responsibilities, including ongoing monitoring and review.

Once approved the GTP must form part of the Planning Permit or any ongoing Management Plan for the site to ensure the plan continues to be implemented by residents/owners to the satisfaction of the Responsible Authority.

Car parking must be provided at a rate of 1 space per commercial tenancy on site.

The car parking spaces provided on the land must be solely associated with the development allowed by this permit and must not be subdivided or sold separately from the development for any reason without the written consent of the responsible authority.

Prior to the occupation of the development, an automatic light must be installed and maintained in the parking area so that the light operates automatically when a vehicle enters or leaves the land between dusk and dawn and no direct light is emitted onto adjoining property.

Bicycle signage at least 300 mm wide and 450 mm high showing a white bicycle on a blue background must be erected directing cyclists to the location of the bicycle parking as required by Clause 52.34-5 of the Moreland Planning Scheme.

Prior to the occupation of the development, the right-of-way is to be resurfaced to the satisfaction of the Responsible Authority.

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.

No portion of the building, other than a verandah, is to project into the road reserve to the satisfaction of the responsible authority.

Prior to the occupation of the development, all boundary walls must be constructed, cleaned and finished to the satisfaction of the responsible authority.

Construction and maintenance of the building must be in accordance with the recommendations contained in the environmental noise assessment report prepared by Vipac Engineers & Scientists Ltd dated 11 February 2011, including implementation of Option 1 at point 7.2 and Option 2 at point 7.3 of the report, to the satisfaction of the responsible authority.

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.

Mailboxes are required to be located as close to the public footpath as possible in accordance with the Australia Post - General Post Guide 2004 (Point G4.3) as published on its website to the satisfaction of the responsible authority. The dimensions of each mailbox are to be in accordance with the Guide.

Prior to the occupation of the development, the existing vehicle crossing not to be used in this use or development must be removed and the kerb and channel and footpath reinstated to the satisfaction of the responsible authority.

No polluted and / or sediment laden runoff is to be discharged directly or indirectly into Melbourne Water's drains or watercourses.

Finished floor area of the retail area, excluding the straight rail stair riser must be constructed 300 mm above the applicable flood level.

The finished floor level of the surrounding floor space at the lift entry/s must be constructed 300 mm above the applicable flood level.

The car parking, bike spaces and storage areas must be constructed no lower than 36.13 metres to Australian Height Datum (AHD).

This permit will expire if one of the following circumstances applies:

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 from the date of issue of this permit;

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.

Environment Act 1987

Pomeroy Pacific Pty Ltd v Moreland CC No. 2 [2011] VCAT 475 (22 March 2011)

Daryl Pelchen Architects Pty Ltd v Stonnington CC & Ors [2010] VCAT 1670.

Pomeroy Pacific Pty Ltd v Moreland CC No. 2 [2011] VCAT 475

At a glance

Court

Decision date

Source

Judgment (51 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (2)

Pomeroy Pacific Pty Ltd v Moreland CC No. 2 [2011] VCAT 475 (22 March 2011)