Victorian Civil and Administrative Tribunal|2025-07-18

For the reasons given above, the decision of the responsible authority is varied. A permit is granted subject to conditions as set out in Appendix A attached.

Lot 20 and 21 on Plan of Subdivision 006671 (Volume 04867, Folio 270), 6-8 Anderson Road, THORNBURY, VIC 3071

To use the land for the purpose of Industry (cast stone products).

Before the development starts, amended plans to the satisfaction of the responsible authority must be submitted to, and approved by, the responsible authority. When approved, the plans will be endorsed and will then form part of 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 Plans, received by council on 6 May 2024, prepared by Melgrand) but modified to show:

(a) All property boundaries dimensioned/delineated on all plans and shown to be in accordance with the title boundaries for Lots 20 and 21 on Plan of Subdivision 006671 and to clearly delineate Council owned land.

(b) A modified car parking arrangement of nine (9) car parking spaces (five (5) external to the building and four (4) internal within the building) as generally depicted in Annexure A to Onemilegrid's Expert Evidence Statement, dated 22 April 2025 - Figure 11. The modified car parking plan is to show and include line markings clearly depicting the vehicle egress and ingress proposed for the four (4) internal car spaces to be provided within the subject building.

(c) All plans clearly identified with plan title/identifying information (e.g. proposed ground floor plan), plan numbers, dates and revision.

(d) Elevation drawings with heights to Australian Height Datum (AHD) from each perspective.

(e) Further information on the vehicles expected to be used to service the site, and/or a door system which sits above the lintel underside when fully opened such that the Articulated Vehicle (AV) has adequate headroom to access the site as recommended by the Traffic Impact Assessment submitted with the application, Revision A, dated 6 May 2024 and prepared by TTM (Item 7 Summary and Conclusions).

(f) The provision of all loading zones shown on the plan to be endorsed under condition 1(b) to be clearly line marked within the subject building and defined on ground to the requirements and satisfaction of the responsible authority. The loading zones shall be used for that purpose at all times and shown on the endorsed plan to the requirements and satisfaction of the responsible authority.

(g) The provision of four (4) bicycle parking spaces located to the satisfaction of the responsible authority.

The design of the parking spaces must comply to comply with Australian Standard AS 2890.3 1993 Parking facilities Part 3: Bicycle parking facilities and the design standards of Clause 52.34-6 of the Darebin Planning Scheme.

(h) Any modifications required as a result of the provision of the Landscape Plan required by Condition No. 3 of this Permit.

(i) Any modifications required as a result of the Stormwater Management System Report, including a Water Sensitive Urban Design (WSUD) Plan, required in accordance with Standard W2 of Clause 53.18-5 of the Darebin Planning Scheme. Refer to Condition No. 4 of this Permit.

(j) Any modifications required as a result of the Waste Management Plan required by Condition No. 5 of this Permit.

(k) The provision of a Site Environmental Management Plan in accordance with Standard W3 of Clause 53.18-6 of the Darebin Planning Scheme. Refer to Condition No. 6 of this Permit.

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

The development and layout of the use as shown on the endorsed plans must not be altered without the prior written consent of the responsible authority.
Before plans are endorsed under Condition No. 1 of this Permit, a Landscape Plan to the satisfaction of the responsible authority must be submitted to and approved by the responsible authority. When approved, the Landscape Plan will be endorsed and will then form part of this Permit. The Landscape Plan must be prepared by a suitably qualified person, be drawn to scale with dimensions, and must incorporate:

(a) Additional landscaping which may arise from the alternative car parking arrangement referenced in Condition No. 1 (b).

(b) All title boundaries.

(c) Any modifications relating to landscaping required as a result of the Water Sensitive Urban Design Plan/Report required by Condition No. 4 of this Permit.

(d) Details of all existing trees to be retained and all existing trees to be removed, including overhanging trees on adjoining properties and street trees within the nature strip. The genus, species, height and spread of all trees must be specified. All existing trees to be retained must be retained and protected in accordance with Australian Standards.

(e) A planting schedule of proposed vegetation detailing the botanical name, common name, size at maturity, pot size and quantities of all plants.

(f) A diversity of plant species and forms.

(g) All nominated plant species are to be native, indigenous or endemic to the local area, compatible and complementary to the creek environs to the satisfaction of the responsible authority.

(h) Where the opportunity exists, an appropriate number and size of canopy trees are to be shown within the secluded private open space areas of each dwelling and within the front setback of the property, commensurate with the size of planting area available. All canopy trees must have a minimum height of 1.6 metres in 40 litre containers at the time of installation. Canopy trees must adhere to Darebin City Council's standards for canopy trees at maturity (Height x Width): small canopy trees (4-6m x 4m), medium canopy trees (6-8m x 6m), large canopy trees (8-12m x 10m).

(i) Annotated graphic construction details showing all landscape applications and structures including tree and shrub planting, retaining walls, raised planter bed and decking.

(j) Type and details of all surfaces including lawns, mulched garden beds and permeable and/or hard paving (such as pavers, brick, gravel, asphalt and concrete). Where paving is specified, material types and construction methods (including cross sections where appropriate) must be provided.

(k) Type and details of edge treatment between all changes in surface (e.g. grass (lawn), gravel, paving and garden beds).

(l) An outline of the approved building/s including any basement, the location of entry doors, windows, gates and fences.

(m) The location of both existing and proposed overhead and underground services. Conflicts of such services with the existing and proposed planting must be avoided.

(n) Clear graphics identifying trees (deciduous and evergreen), shrubs, grasses/sedges, groundcovers and climbers.

(o) Scale, north point and appropriate legend.

(p) Landscape specification notes including general establishment and maintenance requirements.

The requirements of the endorsed Landscape Plan must be complied with and implemented to the satisfaction of the responsible authority.

The development must not be occupied, unless otherwise approved by the responsible authority in writing, until the landscaping works shown on the endorsed Landscape Plan are completed to the satisfaction of the responsible authority.

No later than seven (7) days after the completion of the landscaping, the permit holder must advise the council, in writing, that the landscaping has been completed.

The landscaping shown on the endorsed Landscape Plan must be maintained to the satisfaction of the responsible authority, including by replacing any dead, diseased, dying or damaged plants to the satisfaction of the responsible authority.

All landscaped areas must be provided with an appropriate irrigation system to the satisfaction of the responsible authority.

Before plans are endorsed under Condition No. 1 of this Permit, a detailed Stormwater Management System Report (SMSR) to the satisfaction of the responsible authority must be submitted to and approved by the responsible authority. When approved, the SMSR will be endorsed and will then form part of this Permit. The report must include:

(a) Details of how the stormwater management system is designed to meet the current best practice performance objectives for stormwater quality contained in the Urban Stormwater - Best Practice Environmental Management Guidelines (Victorian Stormwater Committee, 1999), including:

An assessment using an industry recognized stormwater tool;

The type of water sensitive urban design (WSUD) stormwater treatment measures to be used and details of these treatment measures including cross sections, materials, plants and drainage directions;

The location of stormwater treatment measures in relation to buildings, sealed surfaces, neighbouring properties and landscaped areas;

A plan illustrating where all impervious surfaces will be treated and drained; and

A construction and maintenance schedule.

(b) Details of how the stormwater management system contributes to cooling, improving local habitat and providing attractive and enjoyable spaces; and

(c) Consideration of how the WSUD stormwater treatment measures will integrate with on-site detention requirements.

The requirements of the endorsed SMSR must be implemented and complied with to the satisfaction of the responsible authority.

Before plans are endorsed under Condition No. 1 of this Permit, a Waste Management Plan (WMP) to the satisfaction of the responsible authority must be submitted to and approved by the responsible authority. When approved, the WMP will be endorsed and will then form part of this Permit. The WMP must:

(a) Ensure all bin types, bin sizes, the size of the waste storage area/s and any other relevant detail/s specified in the WMP are shown to scale on the endorsed plans.

(b) State that collection will be undertaken by a private contractor.

(c) Explain how and where waste will be stored on the site.

(d) Explain how the waste will be accessed and collected on the site, including:

Times and frequency of collection.

The location of collection point for vehicles.

The type and size of collection vehicles.

(e) Explain the waste services to be provided (i.e. cardboard, paper, plastic and metals recycling or comingled waste, general waste and organic waste).

(f) Detail the types and size of bins.

(g) Include a dimensioned plan showing the waste bins are capable of being accommodated and conveniently accessed within the nominated storage area on site.

(h) Any other relevant matter.

The provisions, recommendations and requirements of the approved WMP must be implemented and complied with to the satisfaction of the responsible authority.

The collection of waste from the site must be by private collection, unless with the prior written consent of the responsible authority.

Waste storage and collection must not affect the amenity of the surrounding area.

Waste storage and collection must not cause any interference with the circulation and parking of vehicles on abutting streets.

Before plans are endorsed under Condition No. 1 of this Permit, a Site Environmental Management Plan (SEMP) to the satisfaction of the responsible authority must be submitted to and approved by the responsible authority. When approved, the SEMP will be endorsed and will then form part of this Permit. The SEMP must be generally in accordance with Melbourne Water's Keeping Our Stormwater Clean - A Builder's Guide (2002) and must describe how the site will be managed prior to and during the construction period, including requirements for:

(a) Erosion and sediment.

(b) Stormwater.

(c) Litter, concrete and other construction wastes.

(d) Chemical contamination.

The requirements of the endorsed SEMP must be implemented and complied with to the satisfaction of the responsible authority.

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 (Vic).

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

The use must not adversely affect the amenity of the area, including through the:

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

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

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

(d) Inappropriate use of nearby residential streets for large vehicle manoeuvres and/or in any other way, to the satisfaction of the responsible authority.

Without the further written consent of the responsible authority, no more than 30 staff members may be present on the site at any time.
Without the further written consent of the responsible authority, the total level of cast stone production permitted on site must not exceed more than 200 tonnes per year.
No goods, equipment, packaging material, or any other material/object must be stored, or left exposed, outside a building that will be visible from any public road or thoroughfare to the satisfaction of the responsible authority.
Noise levels associated with the permitted use/s on the land must not exceed the maximum levels under the Environment Protection Regulations 2021 (Part 5.3) and the Noise limit and assessment protocol for the control of noise from commercial, industrial and trade premises and entertainment venues (publication 1826 - Noise Protocol).
Car spaces, access lanes and driveways shown on the endorsed plans must not be used for any other purpose unless with prior written approval from the responsible authority.
The areas set aside for the parking of vehicles including those car spaces proposed internal to the subject building and access lanes as shown on the endorsed plan(s) must be:

(a) Constructed;

(b) Properly formed to such levels that they can be used in accordance with the plans;

(c) Surfaced with an all-weather sealcoat;

(d) Drained; and

(e) Line-marked to indicate each car space and all access lanes, to the satisfaction of the responsible authority.

At all times when the use is operating during its permitted hours, the car and bicycle parking areas must be illuminated to the satisfaction of the responsible authority. All external lighting must be designed, baffled and located to prevent any adverse effect on adjoining and nearby land to the satisfaction of the responsible authority.
The loading and unloading of goods from vehicles must only be carried out on the site within the loading zones shown on the endorsed plans and must not disrupt the circulation and parking of vehicles on the subject land or on any abutting streets.
The loading and unloading carried out by a semi-trailer with a length of 19 metres or greater is restricted to the loading zone shown on the endorsed plan:

(a) Once a week on average (but not more than four (4) times per month); and

(b) Between the hours of 9am - 4pm.

All other deliveries of goods to the site, and the loading and unloading of goods from vehicles, (other than those specified in condition 17 of this permit) may only occur within the nominated loading bays located within the subject building and during the following times:

(a) 7am - 8pm Monday to Saturday

(b) 9am - 8pm Sundays and public holidays

All vehicle crossing(s) must be constructed to align with approved driveways to the satisfaction of the responsible authority. All redundant crossing(s), crossing opening(s) or parts thereof must be removed and replaced with footpath, naturestrip and kerb and channel to the satisfaction of the responsible authority.
The land must be drained to the satisfaction of the responsible authority.
No plant, equipment, services or structures other than those shown on the endorsed plans are permitted above the roof level of the building without the prior written consent of the responsible authority.
Any modification to existing infrastructure and services within the road reserve/Anderson Road footpath (including electricity supply, telecommunications services, gas supply, water supply, sewerage services and stormwater drainage) necessary to the construction of the car parking area, must be undertaken by the permit holder to the satisfaction of the relevant authority and at the full cost of the permit holder.
The development and use of the site as approved by this planning permit cannot commence until an agreement to occupy and undertake works on the council owned land along the Anderson Road frontage, is entered into between the permit holder and Darebin City Council.
This Permit will expire if either:

(a) The development does not start within three (3) years from the date of this Permit; or

(b) The development is not completed within five (5) years of the date of this Permit.

The responsible authority may extend the times referred to if a request is made in writing:

(a) Before this Permit expires.

(b) Within six (6) months after the expiry date; or

(c) Within twelve (12) months after the expiry date if the request relates to the completion of the development or a stage of the development.

[1] A permit is not triggered for the proposal under the DCPO1.

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

[3] Order 1 amended the permit application site description to include Lot 20 and 21 on Plan of Subdivision 006671 (Volume 04867, Folio 270), 6-8 Anderson Road, Thornbury. This amendment was not contested by the parties.

[4] Paragraph 19, Mr Pagliaro's written evidence statement, dated April 2025.

[5] Paragraphs 150-152, council's written submission.

[6] Paragraph 6, respondent's written submission.

[7] Council records confirm the review site has historically been used for industrial type uses.

[8] Approved by council under Planning Permit D/576/2013 on 7 October 2014.

[9] See paragraph 48 - 52 of the respondent's written submission.

[10] See paragraphs 10 & 11, Jurkic v Manningham CC [2005] VCAT 1162.

[11] See Knox City Council v Tulcany Pty Ltd & Ors [2004] VSC 375 at [13(a)], Jurkic v Manningham CC [2005] VCAT 1162 and Van Egmond v City of Knox (1985) 3 PABR 249.

[12] I note the review site is located outside the Principal Public Transport Network ('PPTN'). The car parking rates in Table 1 to Clause 52.06 apply and establish a car parking rate of 2.9 spaces to each 100sqm of net floor area for new industry. Car parking is discussed in more detail under Key Issues.

[13] Paragraph 62, written evidence statement of Mr Pagliaro, dated April 2025.

[15] Notarianni v Alpine SC [2024] VCAT 590 [27]; Supershine Panel & Paint Pty Ltd v Yarra City [2006] VCAT 784 [9]; Keghlan v Mornington Peninsula SC [2000] VCAT 2538 [4] and Goode v Moonee Valley CC [2011] VCAT 2046 [54] referred to by the respondent.

[16] I note that some resident objectors in that case are also parties in the review proceeding before me (P1096/2024).

[18] Paragraphs 15-20 of the respondent's written submission.

[19] Traffic Report prepared by TTM Consulting (Vic) Pty Ltd dated 6 May 2024 ('TTM Report').

[20] Traffic report prepared by Mr Gnanakone from Onemilegrid, dated 22 April 2025.

[21] As shown on Sheet 1, issue A, dated 5 February 2024, prepared by TTM Consulting.

[22] Paragraphs 134 & 142-144 of council's written submission.

[23] Page 28 of Mr Gnanakone's evidence statement.

[24] Page 26, Section 8 of Mr Gnanakone's evidence statement.

[25] Summarised opinion of Mr Pagliaro's evidence at paragraph 32 of the respondent's written submission.

Environment Act 1987

Administrative Tribunal Act 1998

Protection Regulations 2021

Health and Safety Regulations 2017

Romano v Darebin CC [2025] VCAT 642 (18 July 2025)

Having considered the submissions and evidence of the parties I find that the proposal is consistent with the definition of industry and subject to conditions, will satisfy the key purposes and objectives of the IN3Z and associated policy settings. I agree with the planning policy evidence and conclusions of Mr Pagliaro. No other planning evidence was presented to me with an alternative view/opinion to the evidence before me.
I acknowledge and appreciate that amenity expectations require careful attention and management, particularly when new industrial development is proposed in an established industrial precinct that abuts a residential zone, as is the case here.
Nevertheless, in accepting the evidence of Mr Pagliaro, I acknowledge that amenity expectations for residences' located within the adjoining GRZ2 must also be tempered due to the interface conditions that exist between the IN3Z and GRZ2 properties.[15] However, this is not to say that legitimate amenity concerns raised by the applicants are to be disregarded within the set of policy settings that apply. This is the exercise of balancing policy outcomes to ensure the proposal achieves a satisfactory planning outcome on the subject land and operates in an appropriate manner within the context of surrounding residential properties.
It is also relevant that residential amenity expectations arising from a change in industrial development in the Anderson Road Secondary Industrial Area, was recently considered by Senior Member ('SM') Baird in Righele v Darebin CC [2025] VCAT 399.[16] This proceeding concerned a proposed change of industrial use at Unit 1/21-23 Anderson Road, Thornbury which I note is located on the same road as the review site. The proposal before SM Baird also included a proposed reduction in car parking.
In her findings SM Baird commented that submissions made by the residents around amenity and future permit applications and compliance, while legitimate, were matters that could be appropriately addressed through appropriate permit conditions.
I agree with SM Baird. Having considered the amenity concerns raised by the applicants in the review proceeding before me, I am satisfied the proposed conditions set out in Appendix A will lead to an acceptable planning outcome on the review site.
In making this finding I also note:
- The use of the subject land for industry is a section 2 permit required use in the Table of Uses at clause 33.03-1. It is not a prohibited use in the IN3Z. The proposal did not require referral to the EPA under clause 53.10.
- The proposal seeks to replace an existing approved industrial use within an existing industrial precinct that has been identified by planning policy to be an area where employment opportunities are to be 'encouraged'.
- The proposal is a 'niche' manufacturing industry that will help advance 'specialist manufacturing practices' and 'techniques' within the Anderson Road Secondary Industrial Area.[17]
- The proposal seeks to encourage land uses that diversify local employment opportunities within identified secondary industrial areas.
I have also given weight in my findings that the proposal is specifically tailored to the specialist production of 'cast stone products'. Mr Pagliaro's evidence identified the use as a 'niche' industry. I accept this assessment. It is also relevant the respondent has acknowledged poor 'past practice' has occurred on the review site and has not contested the range of 'amenity' based conditions sought by council. I am satisfied this set of conditions will ensure the proposal can achieve a satisfactory planning outcome going forward.[18]
The applicants have raised concerns regarding the storing of raw materials on the site that they consider are hazardous. I am not persuaded by the applicant's submission that these raw materials are 'hazardous' and accept Mr Pagliaro's evidence that no hazardous materials are to be stored in the subject building.
I note the storing of raw materials associated with the proposal, including sand, cement and other aggregates will be undertaken within the confines of the existing building, in addition to the storage and warehousing of completed manufactured products.
I am satisfied that conditions on permit will ensure these materials can be appropriately stored and managed within the confines of the subject building.
Having considered the submissions and evidence presented, I am satisfied there is a high level of strategic policy support for the proposed use and development within the context of the IN3Z purposes and objectives and strategies expressed in clauses 02.04-3, 11.02-1S, 17.03-1S, 17.03-2S and 17.03-2L.

Romano v Darebin CC [2025] VCAT 642

At a glance

Court

Decision date

Source

Judgment (65 paragraphs)

Parties

Legislation Cited (5)

Cases Cited (2)

Romano v Darebin CC [2025] VCAT 642 (18 July 2025)