1. Based on the grounds of review, the key issues to be determined are:
   • whether there is strategic policy support in the scheme for the proposed industrial use on the subject land.
   • whether the proposed use is appropriate considering the interface of the subject land with surrounding residential areas particularly in terms of potential impacts from noise, vibration, odour, other emissions, and vehicle movement.
   • whether the proposed car parking provision is acceptable.
   • whether the traffic impacts (including with respect to waste management, loading and deliveries) are acceptable.

1. The Tribunal must decide whether the proposal represents an acceptable outcome having regard to the relevant provisions and policies in the scheme. These provisions and policies are listed in the 'Information' section of these reasons. I have considered all the material filed and presented by the parties.

1. Clause 71.02-1 explains that the Planning Policy Framework seeks to ensure that the objectives of planning in Victoria (as set out in section 4 of the Planning and Environment Act 1987 (Vic)) are fostered through appropriate land use and development planning policies and practices that integrate relevant environmental, social and economic factors in the interests of net community benefit and sustainable development. In addressing 'Integrated decision-making' clause 71.02-3 includes:

The Planning Policy Framework operates together with the remainder of the scheme to deliver integrated decision making. Planning and responsible authorities should endeavour to integrate the range of planning policies relevant to the issues to be determined and balance conflicting objectives in favour of net community benefit and sustainable development for the benefit of present and future generations.

1. Some machinery associated with the proposed land use is said by the respondent to be stored on the premises. The use is not operating. This fact does not give any of the parties an advantage or place them at a disadvantage in my decision-making.[2] I must consider the merits of the permit application having regard to the relevant provisions of the scheme.

Processing of the permit application and access to material/documents produced by the EPA

1. The applicant asks the Tribunal to comment on the lack of transparency by the Council for failing to provide objectors with copies of EPA correspondence prior to the Council's decision.
2. As relevant to this review, the parties have received the correspondence to inform their submissions and to respond to the submissions by others. The Council's submission copied the three responses.[3] I appreciate that the applicant is concerned about the Council's reliance on EPA assessments and advice, without an opportunity for the applicant to directly question the EPA. The EPA's assessment and concerns are set out in three documents. I have not determined that it should be directed to attend the hearing or that further information is required for me to determine this proceeding.

1. The proposed use is for timber furniture manufacturing. The existing premises, and its mezzanine office, are not to be changed externally. Internally, the layout comprises machinery being accommodated to the rear of the premises. A dust extractor, to the rear, is internal to the building.

Figure 2 - Extract of the site layout shown in the advertised plans, sheet 4 of 4. Anderson Road (east) is to the bottom of the plan.

1. The Council's submission describes the proposed land use as follows:
   • high-quality fine furniture is to be manufactured including tables, chairs, coffee tables, bedside tables, sideboards, bookcases, seated benches, and bar stools.
   • an anticipated production rate of five pieces of furniture is to be manufactured each week.
   • the business model focuses on on-line sales, with furniture delivered to customers, although occasionally customers will visit the site to view and purchase the furniture.
   • the warehouse includes a mezzanine level with a kitchenette, power room and ancillary office.
   • timber deliveries will take place once per week and wood dust shavings produced by machinery will be trapped within the warehouse by a dust extractor.
2. Uncontested conditions in the Notice to limit the proposed land use include:
   • the use must only operate on Monday to Saturday between 8:00am to 5:00pm, and no operational activities are to be conducted on Sundays, with the exception of staff vehicle movements and office work.
   • no more than four staff members can be present on-site at one time.
   • no operational activities are to be conducted outside the warehouse building.
   • all equipment and machinery must be set up and located towards the rear of the warehouse building (as is shown in the proposed layout).
   • the roller door must remain shut at all times when machinery is in use within the warehouse building.
   • delivery of timber supplies to the site must only occur once per week and must be undertaken during 'standard business hours only' which has been explained at the hearing to be Monday to Saturday: 8:00am to 5:00pm.
   • the loading and unloading of goods from vehicles must only be carried out on the subject land.
   • waste management must be in accordance with the waste management plan approved and endorsed under Planning Permit D/941/2016.
3. Seven car parking spaces are allocated to the subject land as part of the original permit for the site. The permit application triggers a requirement for a minimum of eight spaces. A reduction of one space is sought.
4. The plans refer to tree removal, which has already occurred. The respondent explained that this was removed before he inspected and then leased the subject land.
5. The respondent stated that this is a new business. The subject land is convenient to him, as he is a local resident.

1. The Council's submission sets out the history of the land at Nos. 21-23 Anderson Road including:
   • the issue of planning permit D/941/2016 on 31 October 2017 for the warehouse complex and a small café (the café is not in use).
   • the issue of planning permit D/211/2022 on 20 July 2020 for the use of one of the front units for an indoor recreation facility (personal training studio).
   • the issue of planning permit D/399/2023 relating to unit 7 for building and works to an existing warehouse resulting in an increase in the total floor area.
   • that one of the warehouses recently received a Planning Permit (D/509/2024) for a music recording studio_._
2. No. 19 Anderson Road, a single storey building formerly occupied by a clothing manufacturer, has been acquired by the Islamic Museum. The museum operates at No. 15A Anderson Road. An application[4] has been lodged with the Tribunal, made under section 87A of the Planning and Environment Act 1987 (Vic), seeking approval to increase patron numbers to the Islamic Museum at No. 15A Anderson Road. The Council's submission states that it also seeks a reduction of the car parking requirements of the scheme and to provide some car parking on the land at No. 19 Anderson Road.

1. The provisions of clauses 02.04-1 and 02.04-3 respectively include the subject land within an area earmarked as a key employment precinct and a secondary industrial precinct.
2. Larger industrial areas in other parts of the municipality are where the Council submits large scale industry uses are more suitable. This is because they are a substantial distance from residential properties. The Anderson Road secondary industrial precinct is a more appropriate area for small scale industries due largely to its close proximity to residential areas. As a secondary industrial precinct, the Council submits this area is more appropriate for a transitional industrial zone where there is an expectation that any industrial uses are less intensive due to the need to provide some protection to surrounding sensitive land uses.
3. Broadly, I find the proposed use responds to and aligns with the area's designation. It also aligns with policies and strategies in clause 02 with respect to a refocus towards a mixed-use economy, facilitating business start-ups and promoting local employment opportunities. It gives effect to clause 17.01-1S to 'improve access to jobs closer to where people live'.

1. The subject land is in the Industrial 3 Zone, reflecting its role as described by scheme directions and policy. Figure 3 depicts zoning in a much wider context. It shows the subject land as being part of a broad industrial area, and indicates the subject land is at the direct interface with a large residential area within a General Residential Zone Schedule 2.

Figure 3 - Extract from the VicPlan zoning map, with the subject land notionally marked.

1. The purpose of the Industrial 3 Zone at clause 33.03 is:

To implement the Municipal Planning Strategy and the Planning Policy Framework.

To provide for industries and associated uses in specific areas where special consideration of the nature and impacts of industrial uses is required or to avoid inter-industry conflict.

To provide a buffer between the Industrial 1 Zone or Industrial 2 Zone and local communities, which allows for industries and associated uses compatible with the nearby community.

To allow limited retail opportunities including convenience shops, small scale supermarkets and associated shops in appropriate locations.

To ensure that uses do not affect the safety and amenity of adjacent, more sensitive land uses.

1. Under clause 33.03-2, a use must not adversely affect the amenity of the neighbourhood, including through the:
   • Transport of materials, goods or commodities to or from the land.
   • Appearance of any stored goods or materials.
   • Emission of noise, artificial light, vibration, odour, fumes, smoke, vapour, steam, soot, ash, dust, waste water, waste products, grit or oil.
2. A permit is required to use the land for industry.
3. Under clause 33.03-2, before deciding on an application, in addition to the decision guidelines in clause 65, the responsible authority (and Tribunal on review of the Council's decision) must consider, as appropriate:
   • The Municipal Planning Strategy and the Planning Policy Framework.
   • The effect that the use may have on nearby existing or proposed residential areas or other uses which are sensitive to industrial off-site effects, having regard to any comments or directions of the referral authorities.
   • The effect that nearby industries may have on the proposed use.
   • The drainage of the land.
   • The availability of and connection to services.
   • The effect of traffic to be generated on roads.
   • The interim use of those parts of the land not required for the proposed use.
   • The effect on nearby industries.

1. The land is within two overlays:
   • Clause 42.01 Environmental Significance Overlay - Schedule 1.
   • Clause 45.06 Development Contributions Plan Overlay - Schedule 1.
2. A planning permit is triggered for tree removal under clause 42.01.
3. Clause 45.06 does not trigger a planning permit or requirements in this case as no permission is being sought to subdivide land, construct a building or construct or carry out works.

Clause 53.10 Uses and activities with potential adverse impacts

1. The purpose of this clause is '[t]o identify those types of uses and activities, which if not appropriately designed and located, may cause offence or unacceptable risk to the neighbourhood'.
2. Clause 53.10-1 states that the threshold distance cited in the table to the clause is:

...the shortest distance from any part of the land to:

• land (not a road) in an Activity Centre Zone, Capital City Zone, Commercial 1 Zone, Docklands Zone, residential zone or Rural Living Zone; or

...

An application to use land for an industry, utility installation or warehouse for a purpose listed in the table to this clause must be referred to the Environment Protection Authority under section 55 of the Act if the threshold distance is not to be met or no threshold distance is specified.

[Tribunal emphasis added]

1. The clause contemplates and provides a process to assess permit applications where the threshold distance is not met.
2. The table includes the following:

1. The 'information' section lists the relevant scheme provisions and policies that apply to this permit application, including clause 65.01.
2. Of particular relevance to the matters in dispute are policies relating to industry, employment, land use compatibility, noise management, air quality, amenity human health and safety, landscaping, parking and transport in the Municipal Planning Strategy and Planning Policy Framework.
3. Notable are:
   • Clause 13 which includes:

Planning should identify, prevent and minimise the risk of harm to the environment, human health, and amenity through:

• Land use and development compatibility.
• Effective controls to prevent or mitigate significant impacts.
• Clause 13.05-1S which includes:

Strategy

Ensure that development is not prejudiced and community amenity and human health is not adversely impacted by noise emissions.

Minimise the impact on human health from noise exposure to occupants of sensitive land uses (residential use, child care centre, school, education centre, residential aged care centre or hospital) near the transport system and other noise emission sources through suitable building siting and design (including orientation and internal layout), urban design and land use separation techniques as appropriate to the land use functions and character of the area.

Policy guidelines

Consider as relevant:

• The noise requirements in accordance with the _Environment Protection Regulations under the Environment Protection Act 201_7.
• Clause 13.06-1S which has the objective to assist the protection and improvement of air quality and strategies to:

Ensure, wherever possible, that there is suitable separation between land uses that pose a human health risk or reduce amenity due to air pollutants, and sensitive land uses (residential use, child care centre, school, education centre, residential aged care centre or hospital).

• A policy document in clauses 13.06-2S and 13.07-1S that is to be considered is:

Separation Distance Guideline (Environment Protection Authority, August 2024)

• Clause 17.03-2S includes the strategies of ensuring that industrial activities requiring substantial threshold distances are located in the core of industrial areas, and encouraging activities with minimal threshold requirements to locate towards the perimeter of the industrial area.
• Clause 17.03-2L 'Darebin industry' which has an objective to strengthen the economic viability and local employment generation capacity of Darebin's core and secondary industrial areas, and has general and topic specific strategies (eg. amenity) including:
  • Encourage industrial activities and advanced manufacturing to establish in core and secondary industrial areas.
  • Encourage land uses that diversify local employment opportunities in core and secondary industrial areas.
  • Encourage the ongoing development of Darebin's service industry sector.
  • Encourage consolidation of land in secondary industrial areas to provide opportunity for major economic activities.
  • Encourage best practice industrial and commercial development to minimise amenity impacts and achieve long term environmental sustainability.
  • Ensure plant and equipment, including air conditioning units, are insulated and located to minimise noise impacts on the surrounding area.
  • Provide well-defined interface buffers between industrial/commercial and residential land uses be maintained to minimise potential conflict.

1. I do not recite all of the other policies. All have been considered as relevant to the facts of this case and disputed matters.

1. The matters that are before me with respect to the applicant's grounds are addressed below.

1. The applicant represents long-standing residents and generational families of Anderson Road who recall times before industry emerged on the west side of the road. Industry that is now present has changed the environment over time, with ongoing impacts identified by the residents with respect to noise from plant and equipment, vibration from trucks and other activities, traffic and parking issues, waste management and various permit non-compliances.
2. I accept that approval of the warehouses in 2017 was considered by residents to be less impactful than industry, and that industry was not assessed or contemplated at that time. However, this does not preclude the current permit application being made for the new proposed land use. Any permit application, lawfully made, must be assessed on its merits under the relevant provisions of the scheme. In this case, it is clear that the interface between the subject land and the location of the proposed industry amenity is highly relevant and is given weight in assessing the permit application. There is express guidance informing decision-making, as I have referred to above.
3. The referral to the EPA gives specialist or technical advice to the responsible authority. The Council has relied on that advice.
4. The applicant emphasises the failure of the proposal to meet the threshold distance cited in clause 53.10. The applicant submits:
   • the failure to meet the threshold distance means that the proposal will result in amenity impacts and is unacceptable; and
   • if approval is granted for the proposed use, it demonstrates that the 500 metre buffer is being ignored and offers no protection for residents.
5. The referral to the EPA, a determining referral authority[5], was made on the basis that the proposal is classified under the table to clause 53.10 as 'Sawmill, wood products and furniture' with a threshold distance from a residential zone of 500 metres. The EPA considered the use corresponds more closely with 'Joinery' where the threshold distance is 100 metres. In either instance, the threshold is not met (as I describe below).
6. I have set out the specific provisions of clause 53.10 earlier. The threshold distances themselves are not mandatory. It is mandatory to refer an application to the EPA if the threshold distance is not to be met or no threshold distance is specified. That referral has occurred here. It has resulted in detailed technical assessments of the permit application material, to which I refer below.
7. If, on assessment, a proposed land use is found to be acceptable even though the specified threshold distance is not met, this does not mean thresholds are ignored. Nor does it set a precedent for other land use applications. It does not mean that protections are removed.
8. Rather, the scheme requires that each permit application is assessed on its own facts. In the current case, factors that are particularly relevant with respect to the proposed land use are its small scale and low intensity, that the processing and equipment will be fully accommodated within the building, and that the use fully utilises the space. A larger timber furniture land use, with much more substantial equipment, different processes and output, would be expected to have its own distinctive impacts.
9. Having regard to the purpose and decision guidelines in clause 33.03, I do not consider there is an 'in principle' locational flaw in this case taking account of policy and the role of this industrial area. The determinative matters therefore become:
   • the effect that the use may have on nearby residential areas or other uses which are sensitive to industrial off-site effects, having regard to any comments or directions of the referral authorities.
   • potential amenity impacts from noise, vibration, odour, or any other emissions and impacts.
   • whether the proposed car parking provision is acceptable.
   • whether traffic impacts (including with respect to waste management, loading and deliveries) are acceptable.

1. With respect to separation distances for the purpose of clause 53.10:
   • the EPA refers to the separation distance from the residential area in the General Residential Zone as 16 metres. This appears to be based on the lot upon which the warehouse building is located.
   • residents refer to a distance of 10 or 20 metres from bedroom windows. This appears to be aligned with their properties or the footpath/road rather than the distance to the subject land.
2. On any measure, the separation distance is less than any of the figures cited in the table at my paragraph 34.
3. The EPA referred to machinery and the dust extractor as having a separation distance of 30 - 40 metres to the nearest residential receptors.

EPA assessment of the permit application material

1. The EPA typically considers a range of factors in assessing whether a proposal is acceptable, including the size of the proposal and the standard of industrial equipment and technology, and the type of likely off-site impacts.
2. As referred to earlier, three responses were received from the EPA, one appending a report from the EPA's Applied Science team. The EPA did not object to the permit application initially or through the processing of the permit application. The responses have:
   • referred to the primary risks associated with the proposed use as being noise and dust, with the secondary risks including air emissions, liquid spills and fire.
   • stated that the proponent is obliged under the general environmental duty to minimise all risks posed by the facility so far as reasonably practicable. This includes adopting a preventative approach to risk mitigation and noting that this is a continuous process.
   • described the proposal differently as 'joinery' rather than as 'sawmill, wood products and furniture' which was the basis of the referral by the Council;
   • involved a technical review of an initial and then an updated Noise and Vibration Assessment provided by the permit applicant, neither of which satisfied the EPA that noise levels would comply with noise limits; but that as low risk, it did not object to a permit subject to conditions.
   • included permit conditions limiting the use, and requiring both a noise management plan and compliance testing after the use started.
   • advised that Sundays are a particular concern - the respondent has agreed to no operations on a Sunday and this is a condition in the Notice.
3. The Council's submission summarised the EPA's position through the three referral responses as follows:
   • On 8 December 2023, EPA provided their initial referral comments on the application in which they advised that based on the information provided they do not object to the proposal subject to specific conditions to be included on any Planning Permit issued. They advised that whilst the Permit Applicant has addressed noise risks within the application to some extent, they remained concerned regarding noise levels to the residential properties and thus requested Council to include permit conditions with regards to noise risks.
   • On 26 February 2024, the Permit Applicant provided an updated Noise and Vibration Assessment which was subsequently referred again to the EPA who provided further comments on 25 March 2024 advising that whilst the overall risk appears low, the methodology of the assessment is not in a form that provides certainty that the risk is low. Subsequently, EPA recommended either an updated assessment to be provided or specific conditions to be included on the Permit.
   • On 28 March 2024, the Permit Applicant provided a further updated Noise and Vibration Assessment which Council referred again to the EPA. On 11 April 2024, the EPA provided their final response indicating that the revised report did not allow the EPA noise experts to come to a conclusion as to whether or not the noise emissions from the premises will be maintained within 51dBA as required to meet EPA noise limits. However, considering that only the dust extractor and two of the four pieces of wood cutting equipment would operate simultaneously (as highlighted in the Acoustic Logic response letter dated 27 March 2024), the overall risk of unreasonable noise was considered to be low and recommended Council refer to their original referral response (dated 8 December 2023) when considering how to proceed with the application.

1. It is evident that the EPA was not persuaded on the material presented that it demonstrates 'certainty to the Responsible Authority that the risk is low'.[6] The Applied Science advice stated:

Despite the shortcomings highlighted above, overall, the risk appears to be low, but the revised acoustic report doesn't allow us to make this conclusion with certainty.

1. The advice suggested two pathways - a further assessment at an alternative location closer to source, or (if a permit was to issue) mitigation measures included as permit conditions or in a noise management plan. These measures were specified as follows, with a further consideration being a compliance testing report within 30 days of commissioning/permit approval:

All operations will be contained within the existing building. No operational activities to be conducted outside the main warehouse building.

The equipment and machinery to be setup towards the rear of the workshop, away from Anderson Road. The roller door will remain shut when machinery is in use.

The workshop only operates during the day period of Monday to Saturday 7am - 6pm. No operational activities to be conducted on Sundays, apart from staff vehicle movements, and office work.

Deliveries of timber supplies to occur roughly once per week during business hours.

Waste collection is coordinated with the other tenants in the wider precinct site.

1. The EPA responses noted that some noise pollution reports have been lodged with EPA against other sites in proximity to the subject land.
2. Residents have drawn attention to complaints they have made to authorities.

'Joinery' or 'sawmill, wood products and furniture'?

1. I have identified the basis upon which the use was classified as 'sawmill, wood products and furniture' in the referral request made by the Council to the EPA. As also already stated, the applicant has emphasised the threshold distance of 500 metres as the relevant figure which should be met.
2. The EPA did not agree with the use applied by the Council, expressing its view in the first referral response as follows:

...from our investigations, EPA notes that the use corresponds more closely with 'Joinery' in Clause 53.10, where the threshold distance is 100 metres from sensitive receptors. In either instance, the threshold is not met as the subject site is located across the street from a General Residential Zone - Schedule 2 at a separation distance of 16m.

1. The threshold distances are based on the potential adverse impacts of each land use or activity and represent a threshold distance within which further detailed assessment is needed to determine whether the use or activity is appropriate.[7] As stated above, the distances are not mandatory nor are they prohibitive to the establishment of a new land use if not met.
2. Just because the proposed land use involves wood, furniture, and working with wood, this does not mean it must fall under the category of 'sawmill, wood products and furniture' for the purposes of clause 53.10.
3. The size and intensity of the use, and processes to occur, must be understood to then determine potential impacts such as with respect to noise, vibration and dust.
4. An assessment of the proposed use is informed by the equipment and machinery shown in the application plans (shown in Figure 2) and descriptions of the use contained in the permit application. An assessment also takes account of the building within which the use is be housed, and the layout of the proposed use and its associated equipment and plant.
5. Different sized timber production and manufacturing businesses require different equipment and have different production outputs to the current permit application. The proposed use does not have a high volume, throughput or output. It is not the scale of a commercial sawmill or mill involving the type of heavy machinery and technology they rely on, nor the type and quantum of product they produce. It involves wood working to produce wooden furniture items. It is fully housed within a building and of low intensity.
6. On either classification being discussed for the purpose of clause 53.10 of the scheme, it is necessary to understand what the specific potential is for noise, dust, vibration, odours and fumes upon sensitive receptors based on the proposal as presented. The primary concern is for dwellings opposite in the residential zone. In my view, the fitness centre and walking trail are exposed to lesser impacts as people attend these locations for a limited time, other than workers in a business. I note there is no objection from other users within the warehouse complex and that these receptor locations are not in a zone identified in clause 53.10.[8]

1. It is accepted that the proposed use can give rise to off-site impacts notably through noise. The proposal has been advanced mindful of this potential and has sought to mitigate impacts. No Sunday use of the operation is to be allowed (this being the 'evening' period for the purpose of the noise assessment).
2. The noise design standards contained in the updated Noise and Vibration Assessment have not been questioned by the EPA and there is a consistent view by the authority that the use is 'low risk'.
3. The assessments do not give certainty, because a further layer of conservatism in the noise assessment is considered necessary. However, there is no suggestion in the material that the design standards quoted are wrong or cannot be met. Nor that if, through compliance testing, any issue or departure from a standard is found, measures cannot be introduced to ensure standards are met.
4. I note in this context that the EPA states:[9]

However, considering that only the dust extractor and two of the four pieces of wood cutting equipment will operate simultaneously (as highlighted in the Acoustic Logic response letter dated 27 March 2024) the overall risk of unreasonable noise appears to be low.

1. A compliance report would allow some use of the land before the report was undertaken. This is not unreasonable to enable the operational processes and practices to fully establish and to thereby ensure the report is based on the representative use of the land.
2. The applicant proposes to prepare the required noise management plan with EPA advice. I am satisfied that the respondent is aware of and committed to meeting obligations. However, as discussed at the hearing, I think it prudent that the plan be prepared by or with a suitably qualified and experienced person. I appreciate that this may involve further cost, but the sensitivity of the location of the subject land warrants demonstration that the plan has been prepared with specialist input.
3. In addition to planning permit conditions, other EPA legislation applies and must be complied with.
4. I understand that the residents experience noise impacts from other sites and fear the proposal will add to that impact and be worse given it is closer to their homes. They have emphasised the elevated position of the dwellings and I have observed the line of sight to roof top plant associated with commercial operations on older buildings north toward Fyffe Street. Unlike substantial roof-mounted equipment on those buildings, the modern equipment associated with the proposed use will be fully internalised within the concrete building, and without external vents. The use is to operate with the door closed.
5. Reference has been made to the noise from gates opening and closing, and the roller door. These types of noises relate to the premises as it exists today, and are not reasons to refuse the proposed land use.
6. The applicant refers to the impact of tree removal from the subject land in terms of amenity and noise. Tree removal has already occurred, as mentioned earlier.[10] While providing a softening visual impact, the tree would not offer acoustic attenuating benefits. It is a common misconception that even a small amount of tree planting will mask noise.

1. The delegate's report refers to information from the permit applicant that the dust extractor is of a quality that will provide an impeccable seal against dust. If the seal was to break it would pull in air instead of expelling dust. Collected dust within the extractor will then be deposited directly into the bins that will be stored in the warehouse and then taken out for collection. There is no evidence of toxins that are feared by the applicant.
2. The EPA was satisfied that measures are in place to manage and mitigate dust impacts (such as sawdust) and air-borne emissions. The measures are specified in the referral responses and collectively have been referred to earlier and include the following:
   • modern machinery is to be used, equipped with spiral head cutter blocks that reduces dust.
   • a dust extractor is installed at the rear of the site to trap wood dust and shavings, depositing them into wheelie bins for easy disposal.
   • most machinery will be connected to the dust extractor when in use, and where this is not possible, it is intended that the machinery will be isolated in order to prevent dust dispersing.
   • the roller door will remain shut when machinery is in use.
   • furniture will be finished only with zero VOC (Volatile Organic Compound) products, such as hard wax oils.
   • no spray painting will occur on site, and as such, a spray booth is not required.

1. Residents have referred to vibration experienced in their homes, including from truck movements and related to equipment.
2. The EPA's referral response does not identify this as a particular risk or a matter that has been overlooked. The use of trucks associated with the business is limited.
3. Issues described with respect to trucks reversing down the street and using the subject land are existing conditions.

1. Overall, the available material persuades me that potential impacts of the proposed use can be managed to an acceptable level in accordance with required standards. This does not mean the use will never be heard or noticed. Rather, the use proposed on the subject land can meet its obligations to be determined to be acceptable based on all relevant considerations in the scheme and EPA standards and protocols.
2. The proposed land use is to be controlled through multiple safeguards associated with the internal nature of the use, modern plant and equipment, and compliance testing. The topographic conditions are known.
3. I am also satisfied that permit conditions are appropriate to the circumstances and set out obligations that can be met.

1. The applicant expresses concern about car parking insofar as:
   • a reduction has been accepted by the Council without an empirical car parking assessment.
   • consideration has not been given to waivers granted for other land uses and the current permit application for parking reductions associated with the museum.
   • the impracticality of moving cars so that visitors would park in the front two spaces.
   • the loss of on-street parking that has already occurred and additional proposals by Council to remove more public parking spaces on the east side of the street.

1. The permit application refers to a maximum of four staff and is made on the basis that only occasionally will customers attend, by appointment. Conditions in the Notice cap staff to four.
2. The reduction in car parking being sought under clause 52.06 is one car space.
3. There is a requirement to provide a report under clause 52.06-7. A reduction is assessed under the decision guidelines of clause 52.06-7, which I do not recite.
4. The delegate's report stated that:

A Car Parking Demand Assessment (CDPA) was not provided with the application however given a reduction of only one (1) space is sought, given the minor nature of this reduction, a CPDA was not considered necessary by Council's traffic engineers nor by the planning officer.

1. I agree with the Council's submission that the proposal requires a reduction in one space, caps the use with four employees on the land, and will have only occasional visitor attendance at the site. The extent and nature of the proposed operations will not fully use the dedicated seven spaces available to the land use.
2. There is no argument that credits apply.
3. Clause 62 of schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) gives the Tribunal jurisdiction to determine a proceeding under a planning enactment despite any failure to comply with the planning enactment or any other enactment and, in doing so, may determine to disregard that failure if the Tribunal considers it in the interests of justice to do so.
4. Having regard to the facts of the land and proposed land use, and the fact that it has more parking dedicated to it that expected to be needed, I do not consider the reduction of one car space will have an adverse impact on the amenity of the area or impinge on fair use of public parking by other businesses and residents. It is appropriate to disregard the failure in this instance.

Impact of other waivers/reductions allowed and being proposed

1. For essentially the same reasons as given above, other parking reductions and waivers are noted but there will not be a material cumulative impact that should cause the reduction of one space in this permit application to be refused. The proposed land use meets all of its needs through on-site parking on the titles to the land.

1. The car spaces allocated to the subject land are scattered through the property. The two at the front are the most convenient in terms of proximity to the entry and, with a customer appointment system, there is an ability to move cars to other allocated spaces within the property when customers or other visitors attend the site.
2. No-one cannot preclude the potential for visitors to use public parking if it is available. On-street parking is a public resource. The relevant point for this assessment is that there is no need for the proposed land use to rely on public spaces because there is sufficient dedicated parking on-site to meet the needs of the business.

1. This proposal does not rely on the use of on-street parking. The loss of public parking is of concern to residents but does not have a bearing on the acceptability of this permit application as its needs can be fully accommodated on-site.

Traffic movement, loading, deliveries and waste

1. I accept that Anderson Road is a relatively narrow street, terminating at Fyffe Street. On-street parking and larger vehicles in particular will impact on traffic flow and movement.
2. Additional traffic, compared with existing conditions where there is no current operation on the land, will not be significant. There is no showroom, with sales and attendance being arranged via online means.
3. The greater impact will be when deliveries are made, including if/when they involve larger trucks. Residents have referred to impacts in this regard. The EPA recommended a limit of one delivery per week, which the respondent accepts. A vehicle can, the respondent explained, back into the loading bay area, and use the front concrete apron. Large truck deliveries can be expected to give rise to a delays in the street, however, I agree with the Council that this is not a reason to refuse a permit for the proposed use of the land.
4. Residents refer to furniture items leaving the site (compared with deliveries to the site). This was discussed at the hearing. The respondent and Council agreed to both the delivery of timber supplies to the site, and furniture items being removed off-site, only occurring once per week and during the hours contained in Condition 5.
5. An endorsed waste management plan applies to the whole warehouse complex.[11] It appears from information provided at the hearing by the residents, respondent and Council that waste management practices associated with the current users of the subject land do not comply with that plan.
6. The respondent is aware of the obligations of the endorsed waste management plan. Non-compliant practices are not a reason to refuse the current permit application, rather, the Council should pursue the non-compliances.
7. Conditions on the Notice require that if collections occurs outside of the subject land, bins must be removed from the driveway within No. 21-23 Anderson Road promptly after collection. I have tightened the wording of this condition to clarify that 'offsite' means within No. 21-23 Anderson Road to accord with the endorsed waste management plan with private collection, rather than collection from Anderson Road.

Future permit applications - precedent and intensity

1. The applicant expresses concern that:
   • future land uses and industry could be more intense than the current proposal; and
   • another occupier could exacerbate impacts (eg. who produces from timbers injected with dangerous chemicals or paints and solvents).
2. It is correct that there could be further proposals to use warehouse units for purposes other than storage, and that another occupant of the subject land (relying on the same permit) could operate differently but within the terms of the permit.
3. Secondary consent or amendments to a permit and plans may be required if a new user of the subject land was to seek to rely on the permit. These would be subject to assessment under the relevant provisions of the scheme.
4. Similarly, the use of other warehouse units for purposes requiring a planning permit would be subject to assessment under the relevant provisions of the scheme.
5. These potential scenarios are not, however, reasons why the current permit application should be refused.

Workability of permit conditions and compliance

1. The applicant does not consider that permit conditions will control the significant amenity and pollution impacts. Residents refer to the failure to comply with permit conditions relating to No. 21-23 Anderson Road including tree removal; non-compliance with the waste management plan; and landscaping. Some of their experiences of noise from other businesses, for example, may also raise non-compliances.
2. It is clear that the respondent understands and accepts the conditions in the Notice and seeks to respect neighbours and others in the area. The proposed permit conditions are clear, workable and enforceable (subject to several refinements that I will direct).

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

1. Before the use 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 this Permit. The plans must be drawn to scale with dimensions and must be generally in accordance with the plans submitted with the application (identified as 'Site Plan' & 'Proposed Workshop Layout Plan' received by Council 22 November 2023 and prepared by the Permit Applicant) but modified to show:

(a) An updated site plan showing the location of the seven (7) car spaces allocated to the site and the two (2) car parking spaces at the front of the site allocated for customer car parking.

(b) The provision of a Noise Management Plan in accordance with the requirements of Condition No. 3 of this Permit.

When approved, the plans will be endorsed and form part of this Permit.

1. The layout of the use as shown on the endorsed plans must not be altered without the prior written consent of the Responsible Authority.
2. A Noise Management Plan, prepared with advice from a suitably qualified professional to the satisfaction of the Responsible Authority, must be submitted to and approved by the Responsible Authority. When approved the Noise Management Plan will be endorsed and will then form part of this Permit. The Noise Management Plan must include the following details:

(a) Mitigation measures to be implemented to address noise risks associated with the use.

(b) Establishment of a complaint's procedure and/or register.

(c) Processes for continuous monitoring and improvement with regards to potential noise risks with the associated use.

The mitigation measures and requirements of the endorsed Noise Management Plan must be implemented and complied with to the satisfaction of the Responsible Authority.

1. Within three months of the commencement of the use, an acoustic assessment must be undertaken by a suitably qualified professional and in accordance with EPA Publication 1826.4: Noise Limit and assessment protocol for the control of noise from commercial, industrial and trade premises and entertainment venues (the Noise Protocol). Should noise limits according to the Noise Protocol assessment not be met, the proponent must implement all recommendations and controls detailed in the acoustic assessment, in order to meet the noise limits, so far as reasonably practicable. The acoustic assessment must be undertaken to the satisfaction of the Responsible Authority and the Environment Protection Authority.
2. The use must only operate as follows:

No operational activities are to be conducted on Sundays, with the exception of staff vehicle movements and office work.

1. No more than four (4) staff members may be present on the site at any given time.
2. The use must not adversely affect the amenity of the area, including through:

(a) Transport of materials, goods or commodities to or from the land;

(b) Appearance of any building, goods, stored goods or materials;

(c) Emission of noise, artificial light, vibration, odour, fumes, smoke, vapour, steam, soot, ash, dust, waste-water, waste products, grit or oil;

and/or in any other way, to the satisfaction of the Responsible Authority.

1. The land must be drained to the satisfaction of the Responsible Authority.
2. No operational activities are to be conducted outside the warehouse building.
3. All equipment and machinery must be set up and located towards the rear of the warehouse building.
4. The roller door must remain shut at all times when machinery is in use within the warehouse building.
5. Delivery of timber supplies to the site, and furniture items being removed from the subject land, must only occur once per week and must be undertaken during the hours contained in Condition 5.
6. The land must be used for the purpose of 'joinery' and not be used for the purposes of any additional type of manufacturing listed in clause 53.10 of the Darebin Planning Scheme.
7. The land must not be used for any purpose which requires any of the following:

(a) A Works Approval from the Environmental Protection Authority.

(b) A Waste Discharge Licence from the Environmental Protection Authority.

(c) Notification under the Occupational Health and Safety Regulations 2017.

(d) A licence under the Dangerous Goods Act 1985 (Vic).

1. The land must not be used for any purpose where the fire protection quantity under the Dangerous Goods (Storage and Handling) Regulations 2012 is exceeded.
2. Waste Management must be undertaken in accordance with the endorsed Waste Management Plan for the site under Planning Permit D/941/2016 (identified as Waste Management Plan, dated 29 May 2018 & endorsed 1 March 2019 and prepared by Leigh Design).

The requirements and management procedures as set out in the endorsed Waste Management Plan must be implemented to the satisfaction of the Responsible Authority.

If collection occurs on the land at No. 21-23 Anderson Road but outside of the subject land, bins must be removed from the driveway within No. 21-23 Anderson Road promptly after collection.

Waste storage and collection must not affect the amenity of the surrounding area and which does not cause any interference with the circulation and parking of vehicles on abutting streets.

1. The land must be drained to the satisfaction of the Responsible Authority.
2. External lighting must be designed, baffled and located so as to prevent any adverse effect on adjoining and nearby land to the satisfaction of the Responsible Authority.
3. No goods, equipment, packaging material, or any other material/object must be stored, or left exposed, outside a building so as to be visible from any public road or thoroughfare, to the satisfaction of the Responsible Authority.
4. The loading and unloading of goods from vehicles must only be carried out on the subject land and must be conducted in a manner which does not cause any interference with the circulation and parking of vehicles on the land or on abutting streets, to the satisfaction of the Responsible Authority.
5. This Permit will expire if the use is not started within three (3) years from the date of this Permit.
6. The Responsible Authority may extend the time referred to if a request is made in writing before this Permit expires or within six (6) months after the expiry date.

[1] Parties' submissions and statements of grounds have all been considered in the determination of the proceeding, in addition to permit application material provided by the Council in accordance with Practice Note PNPE2 Information from Decision Makers. In accordance with the Tribunal's practice, not all of this material will be cited or referred to in these reasons.

[2] Van Egmond v City of Knox, Bassett and Ors as set out in Knox City Council v Tulcany Pty Ltd [2004] VSC 375 (30 September 2004); and Teleskivi Investments Pty Ltd v Yarra Ranges SC [2012] VCAT 969.

[3] The detailed responses are dated 8 December 2023, 25 March 2024 and 11 April 2024.

[5] What this means was discussed at the hearing. If a determining referral authority objects to a permit application, the responsible authority must refuse to grant a permit, and if a determining referral authority specifies conditions, those conditions must be included in any permit granted.

[7] Planning Practice Note 92 - https://www.planning.vic.gov.au/\_\_data/assets/pdf\_file/0028/736129/PPN92-Managing-Buffers-and-Land-Use-Compatibility-February-2025.pdf

[8] That is, Activity Centre Zone, Capital City Zone, Commercial 1 Zone, Docklands Zone, residential zone or Rural Living Zone.

[10] Using the timeline tool in Nearmap aerial imaging, it appears the tree was removed in late 2022.

[11] Planning Permit D/941/2016, Waste Management Plan, dated 29 May 2018 & endorsed 1 March 2019 and prepared by Leigh Design