PART I - VISUAL AND LANDSCAPE IMPACTS WITH RESPECT TO THE PUBLIC REALM

1. The grounds relied upon by SOS express the view that the proposal is out of character with and will damage the values of the open space. The grounds include the visual intrusion on the ridge, the inappropriate impact on the landscape quality generally and at key scenic sites and vantage points. In these and related ways, the gondola and stations are argued to not respect the aesthetic and landscape qualities and values. The upper station in particular will dominate its setting and occupy too much land. Moreover, Mr Connor submitted the proposal will affect the values ascribed to the area's heritage context.
2. More specifically, concerns were expressed that the proposal fails to meet the landscape objectives and decision guidelines in the SLOs because of:
   • The height, scale and extent of development on the summit.
   • The size of the lower station footprint.
   • The scale, height and position of pylons nos.11 and 12 in particular given the proximity to the summit viewing platform and views from the summit.
   • The extent to which pylon no.11 would protrude into the skyline and create a silhouette.
   • The visibility of the gondolas and gondola line, with additional clearing, down the escarpment.
3. Mr Panozzo's evidence referred to the visual impact of the proposal that he said would be contrary to SLO6, other SLOs, and the cultural heritage of the summit and outlooks. He was critical of the failure of the landscape assessment by Mr Czarny to consider the impact in and around the summit including the viewing platform. Ms Greer identified additional issues about the visual impact of the development on views from the Bay back to the escarpment and landscape feature. Having seen Mr Czarny's analysis, Ms Greer expressed her alarm at the extent to which the development would be seen, as shown in the viewshed analysis, and the appearance of pylons seen above the foreground tree line in long views. Mr Gerring described the proposal as creating a scar.
4. Mr Panozzo's evidence was substantially focussed on SLO6 although that Overlay does not apply to most of the site. That plainly affects the weight to be given to the evidence however, we have considered the evidence in the context of the other applicable SLOs as observed by Mr Panozzo and as Mr Watters invited us to do.
5. In reply, Mr Rantino submitted the use of cleared areas and appropriately designed and positioned buildings contribute to minimising the impact on the landscape and values identified in the Overlays. For example, the lower station is cut into the landform and the two largest trees are retained.
6. Mr Biles' and Mr Czarny's evidence was that the landscape has changed over time and, as Mr Biles noted, is more vegetated than historical images show when logging occurred. We summarise the expert evidence to be that although the gondola line would break into the skyline at pylon nos.11 and 12 in particular, the overall visual impact from near and far is that the gondola line would appear with a backdrop of Arthurs Seat. The upper and lower stations are recessive in the landscape. They will not be visually prominent, are sited below the canopy line, and respond to the landform.
7. The permit applicant and Council emphasised that the environment is not pristine and is affected by existing structures including multiple telecommunications towers. These are much higher and broader atop of Arthurs Seat than the tallest of the proposed pylons, no.11.
8. We note that Mr Czarny's viewshed analysis demonstrates the outcome of modelling based on topography; representing places on land where the gondola line and infrastructure might be seen. In reality, as Mr Czarny explained, this does not replicate what would actually be seen because the modelling does not take into account items such as trees and buildings that are present in the environment and will impede or intrude on views to the proposed development. He provided five photomontages that endeavoured to show the proposal in the landscape. The images take account of vegetation proposed to be removed as well as with new proposed landscaping.
9. The imaging of the lower station, with a car park design based on engineering drawings, was accepted by all parties including Parks Victoria as demonstrating a poor design outcome given the very high retaining wall and the removal of vegetation. As we have already recorded, Parks Victoria stated that its detailed design would achieve a more site responsive approach consistent with the Park's values. We observe Ms Dunstan's remarks that a uniform car parking level is not required and stepping/grading could occur.

1. The scenic and landscape qualities of Arthurs Seat are at the forefront of planning policy and the suite of SLOs that apply to the subject land and wider area. As explained by Mr Biles, the Overlays work together to protect valued places and locations from the scenic lookouts and vantage points, recreation sites and wider landscapes that are so important to the character of the Peninsula and its tourism role. The prominence of Arthurs Seat means that it is a visible element from many vantage points, near and far, on land and from the sea.
2. Landscape and visual qualities are part of the suite of Overlays as are the cultural heritage values of the ridgelines and escarpment landscapes in SLO1, SLO3, SLO4 and SLO6. We consider this to mean Indigenous heritage and European heritage based on the precinct statement provided to us[39] and the approved Cultural Heritage Management Plan.
3. Mr Czarny's assessment has assisted our consideration of the applicable SLOs. We have also visited many locations to form our conclusion about the impact on landscape and cultural heritage values.

1. The proposed buildings are larger than the former chairlift stations and will be wholly located within the PPRZ. There is no doubt that the structures and associated vegetation clearance will change the existing landscape character. That will be more extensive at the summit. We accept the expert evidence for the permit applicant and position advanced by the Council that despite the change, the landscape character outcomes sought by the applicable SLOs can be achieved.
2. The lower station is at a relatively unobtrusive location at the base of Arthurs Seat in terms of distant views. It will act as a gateway or entry into Arthurs Seat. The proposed building would be set into the landform. Two majestic trees would be retained. It is in the same location, although larger, than the former kiosk and lower station (parts of which remain derelict on the land). We do not consider the proposal would adversely affect the landscape or cultural heritage values of this setting.
3. The upper station will be an apparent built element in its immediate context but not in wider views or from the foreshore and Bay. Like the lower station, it is of a design and adopts materials and finishes that suitably fit within the setting and is well below the tree canopy line. The upper station is recessive in the wider landscape because it is setback on the south side of Arthurs Seat Road. It will, inevitably, be a new and larger built form on the summit but we find that it responds well to its setting and location for a major tourist or visitor facility.
4. The gondola line will be seen running up and down the escarpment in a cleared corridor. The existing cleared land is already an apparent impact and the infrastructure will be noticeable but not prominent. The most obvious element will be pylon no.11 which is the tallest of the pylons and will break into the skyline in various views. As we discuss below, we consider this is acceptable in the site's setting. Pylons nos.11 and 12 add to the visual presence around the summit environs and although they bring change, we consider the impact can be accommodated without unreasonably affecting other key values such as the scenic lookout.
5. Over the course of the hearing, there was discussion about potential variations to the pylon heights and dimensions. There was also a suggestion of adjustments to the siting to take account of geotechnical assessments. This was referred to by Mr Czarny as "micro-siting" and may include a pylon being moved by several metres or increased or lowered in height by a small margin.
6. After careful consideration, we have concluded that the parameters are generally well defined and adjustments generally in accordance with the application plans are unlikely to have significant additional negative impacts. The science of pylon position, dimensions and heights is complex and linked to factors such as loadings. For this reason, we have not taken up ideas canvassed at the hearing to lower pylon no.11 because, as Mr Brugman explained, there will be consequences up and down the gondola line. A change in one pylon is expected to require a change/s in other pylons. We are, however, persuaded to accept Mr Czarny's opinion that the evidence is based on particular assumptions and, should there be significant variations, particularly with respect to the pylon heights or positions, then they should be further assessed.
7. At night there will be visible lighting mostly associated with the gondola stations but we do not consider this to be unreasonable.
8. Overall, we find the two gondola stations and associated facilities to be well designed and to suitably fit into their settings. The materials and finishes are sympathetic to the location and landscape. New landscaping will have an Indigenous theme. The buildings include Environmentally Sustainable Development initiatives, including passive solar access, natural cross-ventilation, solar panels, water efficient fittings and on-site storm-water collection.

1. The proposed upper and lower stations will not intrude on the ridge or escarpment.
2. Plainly, when standing back from the viewing platform south of Arthurs Seat Road, the view would be dominated by the pylons and gondola operation. This is not, however, the primary outlook point. The primary outlook and panoramic view is from the viewing platform on the north side of Arthurs Seat Road adjacent to Arthurs Restaurant. We accept that there is also an outlook from the northern part of the summit area on the south side of Arthurs Seat Road but this is secondary to the viewing platform.
3. Pylon nos.11 and 12 would be prominent and dominant in the summit setting but sit to the side and behind the visitor at the viewing platform. Pylon no.11 reaches around 21 metres above ground level. That height is required to achieve an appropriate clearance over Arthurs Seat Road. The skylift would be seen extending down the escarpment in a manner similar to the original chairlift and framed with vegetation. We do not consider this to be an unreasonable impost if there is to be a gondola.
4. When viewed from the foreshore and Bay, the gondola line leading up to pylon no.11 will be visible dependent on the proximity and angle of the viewer. It will be below the ridgeline with background and foreground vegetation. Pylon no.11 will be a silhouette but it will not be obtrusive in the same manner as the telecommunications towers present in the same views and rise up to 50 metres. As an example, Mr Czarny's montages model views to Arthurs Seat from the Dromana pier. The upper station would not be seen and the view is affected by many other man-made interventions up Arthurs Seat and atop of the landform above the tree line.
5. SLO decision guidelines refer to a setback from the ridgeline of 10 metres. This cannot be achieved by this proposal by the siting of pylons. The upper station is, however, well setback from the edge created by the viewing platform and will not be seen in long range views from downhill and the foreshore. While it is atop the mountain, it is recessed into the plateau and masked by vegetation.
6. While the projection of pylon no.11 in particular is a negative impact, overall, if there is to be a new chairlift or gondola accessible to people of all abilities, the impact is not an unreasonable visual intrusion given the existing physical context.

1. As was the case with the former chairlift, the gondola will cross Arthurs Seat Road. The same three crossings occur as with the former operation plus a new crossing of Arthurs Seat Road at the summit.
2. It was not suggested by SOS that these road crossings have unacceptable impacts. The gondola will affect the immediate experience of those crossing points. We find that it will not intrude in an unacceptable way into outlooks or views. We further find that it will not unreasonably detract from the experience of the scenic route because vegetation will remain alongside the main road.
3. That is not the same for the summit complex. The summit complex is where there is the greatest exposure and visual impact of the gondola crossing over Arthurs Seat Road plus the new upper station. It is relevant that the upper station is not on the side of the road with an outlook to the Bay and, as part of the PPRZ and major visitor centre, we consider the impact can be accommodated in this location. The area already has a wide paved parking area and a strong presence of other hard surfaces and structures. The proposal would replace some existing green space but be positioned in an area with a presence of infrastructure such as the telecommunications towers and buildings such as Arthurs Restaurant. Mindful that visitor facilities will have impacts if they are to be provided in a major public park, we find the proposal is well designed to respond to the landscape values in its immediate setting.
4. Ms Greer referred to wider views such as the Peninsula Freeway, which we note is not within SLO3. Mr Czarny explained the difficulty in gaining views to the escarpment from many locations because of roadside vegetation along the Freeway. He modelled the Mary Street overpass and that shows the limited potential to see and appreciate the pylon structures. This is not to suggest that they will be invisible but that we are satisfied that the visual impact is not significant or dominating in a manner that would compromise the landform or its landscape and heritage values.

1. The aim of SLO4 is to protect scenic recreation sites from the visual intrusion from the inappropriate siting of buildings and works. It is also to maintain vegetation as an important element in the value of scenic recreation sites and encourage site responsive siting, design and landscaping.
2. Compared with the existing situation, it is self-evident that the proposal would change the experience at the viewing platform adjacent to Arthurs Restaurant. We have explained the reasons why we find the impact is acceptable in this location and why we also find the gondola line and lower station produce an acceptable outcome.
3. We consider that an upper station placed in the location of the former chairlift would have a greater, negative, visual impact. Mr Czarny explained this in cross-examination. We accept his evidence. A station here would appear on the brow of the escarpment as a significant built incursion and require extensive clearing that would also more significantly affect the landscape values of the escarpment.

1. The National Trust has not objected to the proposal and only a small part of the lower station appears to be within the SLO area. For reasons already explained, we do not consider the proposal is unacceptable in this Overlay.

1. The application grounds relied upon by SOS state that the proposal is inconsistent with the built environment and is not in keeping with, and could adversely affect, the heritage place. Mr Connor submitted that HO4 not only addresses the tower that previously occupied the summit but also other elements as explained in the statements of significance.
2. Ms Greer's statement of evidence expressed concern that the proposal ignores the built environment and art deco heritage of Arthurs Seat (evidenced through the Lawson dwellings and former Garden of the Moon) as well as the former lookout tower.
3. Mr Panozzo stated that the proposal is at odds with the Shire of Flinders Heritage Study. That is because it would affect views from lookouts and the summit and would detract from the bushland setting and features identified in the statement of significance (such as works in local granite).
4. Conversely, Mr Biles emphasised that a chairlift has been part of the icon known as Arthurs Seat and that the proposal will return that integral element. He stated that none of the remaining heritage elements such as plaques would be removed, although some of the paths and stonework would be modified. He observed that a Cultural Heritage Management Plan had been prepared and provides measures to be complied with during construction.
5. No objection was offered to the permit application by the National Trust or Council's heritage advisor.

1. Only part of the subject land is affected by a Heritage Overlay. HO4 applies to the summit south of Arthurs Seat Road. HO4 is described in the Schedule to Clause 43.01 as "Arthurs Seat Reserve and Tower". The statement of significance for this area draws connections with the scenic route leading to the summit, the materials in local granite, plaques, cairns and the peak. The connections with the Lawson houses are also part of the significance.
2. We have already observed that the SLOs include reference to cultural heritage and we have also referred to the historical context earlier in these reasons.
3. The hexagonal viewing tower has been removed. Some fabric remains such as the granite walls, the seat itself, and some other markers. Other than demolition of some stairs to provide all-ability access, the heritage fabric will be retained. Permit conditions can ensure this occurs.
4. We appreciate the link between the subject land around the summit and the heritage features in the immediate environs. However, we find no basis upon which we could reach a conclusion that the proposal adversely affects the heritage values of HO4, nearby heritage places in HO3 such as Arthurs Restaurant and the former Garden of the Moon, or the Peninsula Heights residential estate. The proposed upper station is detached from the residential estate including by Telstra land associated with the 50 metre high tower. It is separated from Arthurs Restaurant by the main road.
5. The Council's internal heritage referral stated that there is no architecture remaining on the subject land, or sufficiently close to the site, that sets any sort of precedent or cue for the new design. The conclusion reached was that the proposal is contemporary in style and able to make a positive contribution to its setting. We agree. A new chairlift reinstates an iconic feature of Arthurs Seat.
6. We see no reason why additional parking in the grounds of Seawinds Gardens would be contrary to the heritage values of HO4 as suggested in some objections to which we were referred. HO4 does not incorporate Seawinds Gardens into the heritage precinct and parking occurs informally today.

PART K - POTENTIAL AMENITY IMPACTS WITH RESPECT TO NOISE, PEOPLE ACTIVITY, LIGHTING AND HEADLIGHTS

1. The permit applicant sought permission to operate between 7am and midnight each day. The Council did not support the hours of operation sought by the permit applicant. The hours of operation in the NoD have been cited in paragraph 27.
2. Ms Greer and Mr Gerring identified a number of potential impacts on the amenity of residential properties should the proposal proceed, leading to their conclusion that the hours of operation and impacts are unacceptable. Despite this, SOS's case as presented through Mr Connor and Mr Watters was not that noise is a ground to refuse a planning permit, rather, it is a matter to be managed through permit conditions.

1. The permit application was accompanied by an acoustic assessment. This formed the basis of the Council's assessment.
2. Subsequently, for the permit applicant, Mr Butera provided an independent acoustic assessment. He explained the basis upon which he formed the view that the skylift should not operate after 10pm (ie. into the night time period under State Environment Protection Policy No. N-1 [SEPPN-1]). This was because of noise exceedances at No. 781 Arthurs Seat Road after 10pm based on his calculated noise limit. Mr Butera did state, however, that night time operation may be acceptable based on further assessment once the facility is operational, mindful of the potential for noise mitigation, such as slowing the gondola speed. Mr Butera determined that the evening limit, between 6pm and 10pm, would just be exceeded [by 1dB(A)] at No. 25-29 Wunda Street but that this was acceptable given the conservative assumptions used in the assessment. We observe that both the predicted noise levels and calculated noise limits vary significantly between the earlier acoustic report and statement of evidence particularly for the night period (ie. after 10pm). We have focused on Mr Butera's evidence as the only tested assessment.
3. Mr Connor and Mr Watters challenged the expert evidence identifying what they said were flawed assumptions. The main issue was the appropriate standard to be applied for the acoustic assessment (SEPPN-1 vs Noise from Industry in Regional Victoria [NIRV[40]]). This was tested this through cross-examination. We accept the assessment of Mr Butera and the basis of his conclusion that SEPPN-1 is an appropriate tool to use as guided by NIRV. It is true that is not a mandatory approach, as Mr Watters explored in cross-examination with Mr Butera. However, we accept Mr Butera's evidence that NIRV strongly guides the use of SEPPN-1 in the circumstances of the subject land given that noise sensitive receivers are within the urban growth boundary. We also have considered the sleep disturbance assessment provided in the evidence that is relevant to night time operation.
4. Having read Mr Butera's evidence, SOS agreed that the gondola should not operate beyond 10pm and, mindful of the permit condition requiring the café to close 30 minutes beforehand, this would mean it could operate to 8.30pm Sunday to Thursday and 9.30pm on Friday and Saturday. Mr Watters submitted these are, in SOS's position, suitable operating hours for a café in a semi-rural location. Despite that submission, Mr Gerring and Ms Greer preferred shorter operating hours in presenting their evidence relying on the hours of the former chairlift that did not operate into the evening and night.
5. The Council and permit applicant submitted that the impacts arising can be managed and should not provide a reason to refuse a planning permit. Mr Bartley tendered a letter from the closest residential property owner in Nestle Court who expressed support for the proposal, and also referred fondly to his family's association with the former chairlift. The revised conditions tendered by the Council and agreed by the permit applicant seek to use NIRV and SEPPN-1 but, either way, are expected to result in the same approach and assessment.
6. Based on the calculations and conclusions reached by Mr Butera, we are satisfied that the facility can meet the relevant noise standard during the day and evening, based on a commissioning report that ensures this is the case. We are not persuaded to approve operation of the gondola facility beyond 10pm. We have not been provided with evidence to give us confidence that the exceedances can be mitigated through permit conditions. The night time exceedance at the Wunda Street properties is significant at 6dB(A) while it is less at No. 781 Arthurs Seat Road at 2dB(A). These are Leq measures and thus there will be louder peaks if Lmax was to be considered as a relevant part of a night time assessment. Moreover, Mr Butera did not assess patron noise post 10pm because he formed the view that night time operation should not occur.
7. There is no standard with respect to noise impacts on Park users. This impact is expressly excluded from NIRV and SEPPN-1. We appreciate that the Park's qualities include tranquillity but, as a major visitor precinct, there will be noise from people, traffic and other activities. We have noted the comments of the East West Project Assessment Committee report with respect to the amenity of open space to which we were referred[41]. It adopted different noise levels for active and passive open space. While the figures cannot be directly compared, the predicted noise levels from the gondolas are well below the levels adopted by the Committee, whether considering the original acoustic assessment or in Mr Butera's evidence.
8. The predicted noise levels by Mr Butera do not suggest that the noise emissions for people moving in and around the area would be dangerous or give rise to concerns. There are other opportunities in the immediate and wider summit area to enjoy a peaceful park or garden setting.
9. A condition on the NoD refers to the original acoustic assessment with respect to mitigating noise from the lower gondola mechanical plant room. It cites specific figures to be achieved. We have not retained this condition because of the subsequent assessment as well as the need for a commissioning report that will be required by conditions.

1. Mr Gerring explained his concern about noise from people leaving the lower station car park in the evening and at night. He stated that the former chairlift did not create significant noise but the proposal would operate later into the evening with potentially more visitors. The fact that the car parking area would be under the control of Parks Victoria was raised as an issue by Mr Connor because it would be uncertain and unsatisfactory to have a separate manager for this space. In response, Mr Brugman's evidence was that as a good citizen the proponent would take a role in this and assist to ensure orderly behaviour consistent with the Operational Management Plan.
2. The car park would be to the north of Mr Gerring's property. There would be people, noise and cars moving along Arthurs Seat Road. However, we are unable to conclude that day and evening operation would be give rise to unacceptable impacts for nearby residents. Arthurs Seat Road is an arterial and main road. Implementation of the Operational Management Plan could assist with patron management but it must be remembered that the car park is, we understand, associated with all Park use in the same way as anyone can park their vehicle at the lower station today.
3. Another matter relates to patron numbers at the upper station. Mr Connor referred to the size of the floor area available and the potential to accommodate more than 100 people in the café and associated areas external to the building. Mr Biles agreed and expressed the opinion that a cap of 100 persons on the café could be appropriate to remove.
4. We do not agree that the cap of 100 people should be changed. This is the basis upon which the permit application has been made. Conditions limiting the number of persons and restrict the use to that described in the permit application are not unusual on planning permits. They are no more onerous than many permits relating to places of assembly and other land uses where hours and the number of persons on a site are controlled. If there is a proposal to increase numbers then that should be applied for and assessed in the usual way as provided by the Scheme and the Planning and Environment Act 1987.

1. There was not a strong case advanced by SOS that the proposal would have a significant visual impact on nearby residents. Rather, the focus was on Park users and related issues when seen from the summit and lookout and from the foreshore and Bay as we have already discussed.
2. There is no doubt that the proposal would change the outlook from residences in Wunda Street, Nestle Court and potentially other locations. The impact could be quite significant, particularly for the closest dwelling in Nestle Court where the gondola line would be elevated and, unlike Wunda Street, there is no intervening road. Retained vegetation would assist to mitigate the visual impact to the nearest dwellings and we observe that no party suggested that the visual impact for residents would be a reason to reject the proposal.

1. Mr Gerring referred to the potential for headlight intrusion to his dwelling opposite the lower station. Given the location of the proposed parking area some distance downhill to the south of Mr Gerring's dwelling, we do not consider this would create an unacceptable impact even though headlights will be seen. This issue is more likely to have greater impacts for dwellings opposite should they be exposed but, we note, there is high fencing and vegetation as well as the northern orientation of the houses that would combine to limit impacts. Further, it is again relevant that Arthurs Seat Road is a main road in a Road Zone Category 1.

1. We have referred above to the acoustic assessment presented in expert evidence and have concluded a limit to 10pm is appropriate. We are not persuaded to retain a condition that allows longer hours after one year of operation. This is not supported by the expert evidence. If the proponent seeks to operate the use in a different way than allowed by the permit then it would need to seek approval before that occurs. If an amendment to the permit, or a new permit, was sought, then that would need to be assessed on its merits. If any such application involved, for example, more people on the land then that would be expected to be accompanied by appropriate information.
2. We are mindful that Ms Greer and Mr Gerring preferred earlier cessation of the use but the evidence before us demonstrates that operation of the gondola to 10pm can comply with acceptable noise limits. As noted, testing is essential to ensure the applied standards are met and that is required by conditions in the NoD.

PART L - TRAFFIC

1. SOS submitted the traffic report lodged with the planning application is based on outdated traffic data, children using the school bus stops close to the upper ground station would be endangered by increased traffic, and traffic safety on Arthurs Seat Road between the new gondola stations would be diminished by the increased traffic levels, particularly at night.
2. Conversely, relying on the evidence of Ms Dunstan, the permit applicant submitted Arthurs Seat Road and Purves Road have capacity to accommodate the forecast increase in traffic generated by the proposal. Mr Bartley agreed that traffic calming measures and improved signage are desirable around the summit. These will be implemented by Parks Victoria. Parks Victoria stated that it is committed to these works should the planning permit be issued. However, Mr Bartley also submitted that the works are not essential to the safe operation of the roads. Relying on Ms Dunstan's evidence, Mr Bartley submitted that there will not be increased danger to children, including school children using school buses, from traffic. Council generally agreed with the applicant's assessment.

1. Arthurs Seat Road has multiple switchbacks between the upper and lower chairlift stations and several places to view the panorama of the Bay and the Peninsula. Parks Victoria estimated in the order of 700,000 people visit the park each year, generating high traffic volumes in the peak periods.

1. Arthurs Seat Road is a VicRoads declared arterial road and has a sealed two lane carriageway with unsealed shoulders. It carries tourist cars and buses and is also popular with cyclists and motorbike riders. It provides the primary access for residents living near the summit to the Peninsula Freeway and the Nepean Highway. The intersection of Purves Road and Arthurs Seat Road is controlled by a "Stop" sign in favour of Arthurs Seat Road.
2. Council's traffic engineers concluded the proposed gondola and associated facilities would not generate traffic levels that would adversely affect the operations of the road network. They recommended traffic calming treatments to discourage "hoon" behaviour and excessive speed particularly around the summit and Purves Road. The Summit Landscape Concept Plan contemplated installing three zebra crossings in Arthurs Seat Road to facilitate pedestrian safety[42].
3. Ms Dunstan referred to traffic counts in September 2014 that show Arthurs Seat Road presently carries between 1,000 to 4,000 vehicles per day and Purves Road carries between 700 and 1,600 vehicles per day. She said the current traffic volumes are similar to a local residential street and are very low for a declared arterial road.
4. The traffic counts show that up to 6.8 percent of the traffic comprises commercial vehicles, including buses. Traffic speeds are lower than the permissible 60kph. Ms Dunstan noted the traffic counts are similar to those provided separately by Aecom in its traffic report that accompanied the planning application, indicating the counts are reliable.
5. Ms Dunstan examined a worst case traffic scenario. She combined the existing traffic levels and all movements expected at the peak tourist time (Sunday 1-2 pm) at the upper station. She assumed a peak car parking generation of 196 car parking spaces at the summit car parks. These would generate 236 vehicle movements per peak hour in addition to the existing traffic levels.
6. Using SIDRA Intersection 6, Ms Dunstan concluded that even under the worst case scenario, Arthur Seat Road and Purves Road and their intersection provide an excellent level of service in terms of degree of saturation, average delays and queue lengths. Her evidence was that this indicates the road network has substantial capacity to accommodate the traffic likely to be generated by the proposal, without mitigating works.
7. VicRoads suggested that a right turn lane could be required in Arthurs Seat Road to store vehicles seeking to turn right into Purves Road[43]. Ms Dunstan did not support this. She considered that this would be counter-productive as it would encourage higher speeds around the summit area. She also thought there is insufficient space in Arthurs Seat Road in which to place a dedicated right turn lane. She said larger vehicles such as buses might have difficulty turning into Purves Road from the centre of Arthurs Seat Road.
8. On the evidence before us, we are satisfied Arthurs Seat Road and Purves Road have capacity to accommodate the increased traffic likely to be generated by the gondola complex, the interpretive centre and the café. We accept Ms Dunstan's evidence that a dedicated lane in Arthurs Seat Road to facilitate right turns into Purves Road is unnecessary and may have some negative consequential impacts. Nonetheless, we will not vary VicRoads' conditions that require this to be further investigated in the event that circumstances have changed by the time that assessment occurs.

1. Ms Dunstan described Arthurs Seat Road has having a high level of safety. There have been 19 crashes on the road in the past five years (July 2008 to June 2013). Ms Dunstan stated that eight crashes involved motor cyclists, reflecting the popularity of this road for recreation riding and driving as well as a high level of risk-taking by the riders.
2. We are not persuaded the increased traffic that would arise from the proposal would necessarily generate more motor car/cycle accidents. We think the switchbacks in Arthurs Seat Road will continue to limit vehicle speeds and encourage safe and cautious driving. We accept Ms Dunstan's evidence that some riders are likely to engage in risk-taking riding, particularly through the switchback part of Arthurs Seat Road. We do not think this behaviour is necessarily generated by, or would be made worse by the gondola.
3. In peak periods traffic congestion is likely to occur around the summit as people circulate to find convenient parking. Given the key destinations on the summit are dispersed, there is likely to be considerable vehicle and pedestrian circulation through the area at these peak times. Ms Greer and Mr Panozzo also said the summit area is used for informal recreation by local residents who walk and cycle between their homes and the summit.
4. At peak times there may be enhanced likelihood of car and pedestrian conflict. It will be busy, drivers might be distracted as the area is not familiar, and pedestrians may not appreciate the danger points. Additional pedestrian safety measures would assist to improve safety and reduce conflict points. The Summit Landscape Concept Plan (2004) indicates at least three pedestrian crossings on Arthurs Seat Road with similar measures annotated on the application plans and in the traffic and car parking management plans accompanying the permit application.
5. The preferred locations for these crossings and any other pedestrian refuges are outside the lease area and the land subject to this planning permission. We were advised that Parks Victoria would be responsible for these facilities and for traffic circulation and safety in general. Installation of such facilities is subject to VicRoads approval as the manager of a designated arterial road.
6. We consider these measures are desirable regardless of the gondola to enhance the safe enjoyment of the Park. Their installation is beneficial to the operations of the Park as a whole - many people visit the Park and not all will use the gondola. Furthermore, the works are on land that is not part of this permit and their implementation is not under the control of the permit applicant. Therefore, the installation of traffic management devices and further signage should not be required by permit conditions for this use and development. However, given the likely benefits of traffic calming and pedestrian safety devices, we strongly encourage their implementation prior to the gondola commencing operation.

1. Ms Greer stated that increased visitations to the summit attracted by the new gondola could reduce the safety of children who travel to school by bus. The buses leave and return to the car park presently located on the north-east corner of Arthurs Seat Road and Purves Road
2. Ms Greer provided timetables showing one service from each of the Rosebud Secondary College and the Red Hill Consolidated School stopping at the car park at 7.55am and 8.32am respectively. We accept there are two return services to the car park in the afternoon. We do not know the number of children who use the service.
3. Parks Victoria and Ms Dunstan were not aware of these services, despite making inquires of the main service providers operating in the area. Ms Dunstan advised this suggests the drop off points are not authorised.
4. We note the car park used by the school buses is outside the land subject of this review. We think this is a management matter to be resolved by Parks Victoria, but do not see any significant conflict arising from the proposal based on Ms Dunstan's evidence. The peak time for visitors is likely to be on weekends and in school holiday/public holiday periods when schools are not operating. The morning bus service would occur before the gondola would operate. There would be limited scope for problems in the afternoon given the small number of school buses. The risk is relatively low and can be managed through a reassessment of the preferred location for the bus stops and the traffic measures discussed above.

1. SOS stated that the chairlift would be likely to increase the number of tourist buses. That, in turn, would add to traffic congestion and diminish safety for pedestrians and cyclists, particularly local residents wanting to access the informal parks at and around the summit.
2. We accept the skylift would be likely to be a popular tourist destination and some people would visit as part of a tour that includes multiple places. We have information about projected visitation without a specific number of buses being projected. Ms Dunstan said that it is expected that a reasonable proportion of users will arrive via bus tours. She did not consider that these vehicles would give rise to specific pedestrian or other safety issues. She noted that Parks Victoria's pedestrian improvements works are not essential to the proposal before us but would assist with safety and movement.
3. We accept that the number of buses is likely to increase at both the lower ground station and the summit. We understand Parks Victoria proposes to redevelop the car park at the corner of Arthur Seat Road and Purves Road to accommodate tour buses. Additional dedicated parking bays are also proposed at the upgraded car park at the lower station. This is prudent forward planning, reflecting the likely increased activity in this part of the State Park.
4. We have no reason to find that, with improved signage, pedestrian crossings and the like, the greater activity around the summit would necessarily prevent local residents from also enjoying the park amenities. We do not consider the uncertainty about the improvements to the Park to be fatal to the chairlift application as we have discussed previously. We accept Ms Dunstan's evidence in this regard.

PART M - NET COMMUNITY BENEFIT

1. As set out in paragraph 38, Clause 10.04 of the Scheme requires the decision maker to integrate the range of relevant policies and balance conflicting objectives in favour of net community benefit and sustainable development for the benefit of present and future generations.
2. As evident from our reasons, there are multiple objectives to be balanced in this permit application. The proposal will have some negative impacts on the landscape and natural values of the location. Those impacts are confined. They are particularly associated with pylon no.11 and the need to create defendable space, meaning there will be understorey clearance in addition to vegetation removal to accommodate the upper and lower stations. The facility also has the potential to create amenity impacts if not properly managed.
3. On the other hand, the project would continue the heritage of the Arthurs Seat chairlift with a new facility with all-ability access over all seasons. It would support the tourist role identified for Arthurs Seat State Park by providing an integrated facility with visitor and service infrastructure. A single complex, in an already partly cleared area, reduces vegetation removal for bushfire management when compared with facilities and structures that are physically separated. The design of the gondola stations has been refined to achieve an acceptable outcome in their landscape settings.
4. Mr Connor submitted the upper station results in disbenefits that outweigh any community benefits, particularly with the loss of the open space and the visual and "sonic" impacts. We do not agree. We have not found that the loss of the existing passive open space at the summit is a reason to refuse the proposal mindful of recreation opportunities that will remain available to the community.
5. For the above reasons, we find that the proposal would result in a net community benefit and consequently a permit should be granted subject to varied conditions. Despite some negative outcomes, or change in existing conditions, overall we find the outcome to be acceptable when balancing all relevant matters.
6. Further, we find that the alternative proffered by SOS in response to the decision guidelines within various SLOs appears to have some key difficulties. SOS prefers a facility like the old chairlift with the upper station located on the north side of Arthurs Seat Road. That could have less visual impact on the summit plateau and the removal of passive open space. Conversely, it is problematic as an alternative for several in principle reasons based on the evidence in this proceeding. First, it would place a southern gondola or chairlift station on a more prominent part of Arthurs Seat that would be more exposed to a higher fire risk through direct flame attack. Second, it would require more vegetation removal on the prominent northern face of Arthurs Seat than is the case with the permit application before us. Third, it may bring noise closer to some residents such as in Nestle Court. Finally and importantly, a chairlift like the old one does not allow all-ability access and would therefore fail to meet contemporary expectations.

1. The conditions on the Notice of Decision are the starting point in this proceeding, mindful that no review of any of the conditions in the Notice was sought by the permit applicant.
2. As a result of the expert evidence, a number of modifications were suggested to the conditions by experts and the Responsible Authority such as with respect to noise and bushfire/emergency management. We have also considered further changes proposed on behalf of SOS.
3. Nearly all of the changes proposed by the Council and DEPI were accepted by the permit applicant. We have addressed some points of difference in our findings (such as closure of the facility at times of high fire risk, noise and hours of operation) and additional matters such as the proposed vegetation offset plan. We have added and varied conditions consistent with our conclusions about the permissions required[44] and allowed for an additional year to start and complete the development having regard to submissions on this matter at the hearing.
4. Two further matters require explanation.
5. First, we have not included conditions requiring plans for parking off-site or requiring the availability of parking because we consider these to be beyond our scope, as discussed earlier in these reasons. The same is the case for pedestrian works by Parks Victoria.
6. Second, we have considered responses to suggestions and questions we posed throughout the hearing such as with respect to any "micro-siting" of pylons. For reasons already given, we are satisfied that the location and height of the pylons are generally fixed. Limited adjustments would be possible, consistent with the requirement that the endorsed plans "be generally in accordance" with the submitted application plans. Mindful that there potentially could be (what we describe as) variations needed based on Mr Brugman's evidence, we raised with the parties the possibility that some conditions might be amended only with Tribunal approval. This is a power available to the Tribunal under Section 85(1A) of the Planning and Environment Act 1987.
7. We are aware of two Tribunal decisions where this section has been discussed. The power has been applied in one case. Those decisions are as follows:
   • In Stewart[45], the Tribunal said that:

Having regard to the significance of the changes to the proposal that we have found are needed to be consistent with and implement State and local policies for coastal inundation and protected habitat, we will direct that conditions 1 and 3 must not be amended by the Council under Division 1A of Part 4 of the Planning and Environment Act 1987.

The land in question, at Port Fairy, had substantial environmental and ecological values. The variations made to the proposed subdivision were carefully crafted by the Tribunal to ensure an acceptable outcome was achieved.

• In Tribe, the Tribunal commented[46]:

I consider that the power to restrain a responsible authority from amending a permit via ordinary processes provided for in the legislation should be used sparingly. It should be assumed that the responsible authority will act appropriately in processing and determining amendment requests concerning permits issued by the Tribunal, including giving proper consideration to whether public notice should be given and to whom.

1. We agree that this power is one to be exercised carefully and sparingly. We do not suggest or imply that the Responsible Authority will act improperly. Rather, we are mindful of the sensitivity of the location, size and height of the pylons in particular and the analysis and qualifications made by Mr Czarny[47]. It is for this reason we have decided to exercise the power available to the Tribunal with respect to Condition 1(h)(i).
2. Finally, our order to vary the Responsible Authority's decision comes after a lengthy hearing where we have received new evidence that was not before the Council. That evidence has been important in our conclusion that we agree with the decision made by the Council but need to refine and vary some permit conditions.

Part of the Arthurs Seat State Park, Purves Road, Arthurs Seat, and specifically comprising land described in Lodged Plan No. 36A lodged with the Victoria Central Plan Office

• Demolition;
• Use and development of the land for a leisure and recreation facility (chairlift/gondola) comprising an upper station (with café, interpretative centre, office and toilet facilities), a lower station (with a kiosk, gondola workshop/storage area and interpretative centre), pylons and gondola infrastructure, loading area and cable, and associated water tanks;
• Removal of, and lopping, native and non-native vegetation;
• Illuminated signage;
• Landscaping and associated works;

1. Before the development starts, amended plans to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the plans will be endorsed and will then form part of the permit. The plans must be drawn to scale with dimensions and three copies must be provided. The plans must be generally in accordance with the submitted plans and modified to show:

1. Demolition plan; 2. Measures to protect heritage fabric at the summit such as Arthurs Seat and plaques;

1. The location and details of all lighting provided in conjunction with the proposed lower and upper gondola stations, pylons and gondolas (as applicable);

1. Any earthworks (cut or fill) associated with the construction of the proposed development in conjunction with the upper gondola station; 2. How compliance with DEPI Conditions 40 - 61 is to be achieved; 3. How compliance with VicRoads Conditions 65 - 70 is to be achieved;

1. The retention of Tree No. 59 and Tree No. 64 at the upper station site;
2. A Gondola Corridor Plan, showing (but not limited to):

• (i) The location and full details of each pylon. This must include the surveyed location, dimensioned height and breadth of all gondola pylons consistent with the submitted plans;
  • (ii) The location and details of any proposed underground services and/or infrastructure;
  • (iii) A minimum 6.4 metre height clearance between the base of the gondolas and the road pavement at each point where Arthurs Seat Road is traversed;
  • (iv) All existing trees within the corridor, and nominating whether each tree is to be retained, removed, lopped or pruned;

1. All proposed water tanks at both the lower and upper levels nominated to be of low-reflectivity and of muted colours and tones; and

1. A schedule of the external colours and finishes of the gondolas, demonstrating that the gondolas will complement the natural landscape to the satisfaction of the Responsible Authority.

Direction under section 85(1A) of the Planning and Environment Act 1987

By order dated 10 December 2014, the Victorian Civil and Administrative Tribunal in proceeding no. P1045/2014 has directed that Condition 1(h)(i) on this Permit must not be amended by the Responsible Authority under Division 1A of the Planning and Environment Act 1987.

1. Before the development starts, an amended landscape plan to the satisfaction of DEPI and 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 the permit. The landscape plan must be to scale with dimensions and three copies must be provided. The landscape plan must be prepared by person or firm with qualifications to the satisfaction of the Responsible Authority and must be generally in accordance with the submitted landscape concept plan, amended to include the following:

1. A planting schedule of all proposed trees, shrubs and ground covers, including botanical names, common names, pot sizes, sizes at maturity and quantities of each. All planting must be indigenous to the locality; 2. The provision of a minimum 1.5 metre high timber fence adjacent to the western perimeter of the proposed retaining wall associated with the lower gondola station;

1. Details of the landscaping treatment directly adjacent to the front (west) façade of the proposed upper station;

1. A fence between the front (western) façade of the upper station and Arthurs Seat Road;

1. The provision of planting within the road reserve adjacent to the rear (west) boundary of the residential properties located directly opposite the lower station and associated car parking area. Any existing pedestrian or vehicular access points along this section of Arthurs Seat Road are to be clearly shown on this plan;
2. The means by which compliance with the minimum defendable space requirements of Conditions 44 - 52 is to be achieved; and
3. Any modifications required by DEPI.

1. The layout and use of the land, the size and type of the proposed works, including the materials of construction, on the endorsed plans must not be altered or modified without the written consent of the Responsible Authority.

1. The use must not commence until the development of the land as detailed on the endorsed plans is completed to the satisfaction of the Responsible Authority.
2. Prior to the commencement of works, a Construction Management Plan to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved the Construction Management Plan will be endorsed and will then form part of the permit. The Construction Management Plan must be prepared by a person with qualifications to the satisfaction of the Responsible Authority and must show and/or provide for the following:

1. Details of the staging of all buildings and works; 2. Hours during which construction activity will take place;

1. The location of any temporary cabins and site sheds;

1. The location and storage of machinery on the site; 2. Security fencing and site access details; 3. A traffic management plan which ensures that no traffic hazards are created in or around the site (upper and lower stations, and the corridor) and which must include the following details: * (i) The movement of construction vehicles to and from the site; * (ii) Details of the delivery and unloading points and expected frequency; and * (iii) The location for parking of contractors' vehicles, which must be contained within the land; 4. The location of the building refuse points and methods for ensuring the containment of waste within the land during construction; 5. Methods to prevent discharge of construction materials and sediment entering into the existing underground drainage system;

1. Arrangements to ensure that no debris is deposited on any road while vehicles are travelling to and from the site, and details of the method and frequency of clean up procedures including facilities for vehicle washing;
2. The nomination of, and contact details for, a dedicated liaison officer for contact by the Responsible Authority in the event of relevant queries or problems experienced;
3. An outline of any necessary requests to occupy public footpaths or roads and anticipated disruptions to local services;

1. The measures to minimise noise/dust and other amenity impacts from mechanical equipment and demolition/construction activities; and

1. The erection of a sign on the site prior to any work commencing which is clearly visible from the adjacent road reserves stating that unauthorised entry to the site is not permitted and showing the name of the builder or another person responsible for the site and a telephone number for contact outside working hours. The signs may only be removed on satisfactory completion of the works.

1. Prior to the commencement of the use authorised by this permit, an Operational and Management Manual to the satisfaction of the Responsible Authority must be prepared and submitted to the Responsible Authority for approval. When approved the Operational and Management Manual will be endorsed and form part of this permit. The Operational and Management Manual must include (but not be limited to) the following:

1. The contact details of the nominated person(s) responsible for the day to day management and control of the facility; 2. A complaint handling process to effectively manage any complaints received from neighbours. The Complaints Register to be kept at the premises must include details of the complaint received, any action taken and the response provided to the complainant. This Complaints Register shall be shall be maintained by the permit holder and available for inspection by the Responsible Authority at all times;

1. The operator committing to quarterly meetings with a neighbourhood advisory committee for the first twenty four (24) months once the Skylift is operational and annually thereafter;

1. Details of delivery times which must not occur prior to 7am or after 7pm on any day; 2. Details of hours of operation, as specified by this permit; 3. Documented emergency procedures in the event of any systems failure, as well as measures for safe passenger and staff evacuation should it be required; 4. Frequency and method of inspection of equipment, including erosion management inspection; and

1. At all times, the facility must be operated and managed to the satisfaction of the Responsible Authority in accordance with the endorsed Operational and Management Manual.
2. Prior to the commencement of the approved use, a detailed Waste Management Plan to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved the Waste Management Plan will be endorsed and will then form part of the permit. The Waste Management Plan must be prepared by a person with qualifications to the satisfaction of the Responsible Authority and must show and/or provide for the following:

1. The storage and collection of waste from the approved use, including provision for dedicated recycling bins at lower and upper stations; 2. The storage of other refuse and solid wastes in bins or receptacles within suitably screened and accessible areas to the satisfaction of the Responsible Authority;

1. Designation of methods of waste collection, including the need to provide for private waste collection services;

1. Waste bins not being placed or allowed to remain in view of the public; 2. Appropriate areas for bin storage on site and areas for waste bin storage on collection days; 3. Details for best practice waste management once the use has commenced; 4. The regular removal of waste and litter from public areas surrounding the upper and lower stations, including the adjoining car park at the lower station; and 5. Management practices to ensure that the amenity of surrounding residents is not detrimentally affected by waste disposal practices. This must include that any external refuse bins must not be emptied after 7.00pm or before 8.00am Monday to Saturday, and not after 7.00pm or before 10.00am on Sundays.
2. Prior to the commencement of development, a Construction Environmental Management Plan to the satisfaction of the Responsible Authority must be prepared and submitted to and approved by the Responsible Authority. When approved the Construction Environmental Management Plan will be endorsed and will then form part of the planning permit. The Construction Environmental Management Plan must include but not be limited to:
   1. Details of how the excavated topsoil from the approved works site will be stockpiled and spread to minimise disturbance to the natural soil profile;

1. Weed management to ensure stockpiling and spread excavated topsoil material is kept clean of weed material;

1. The location of temporary fencing to be installed during the construction phase;

1. Details of how existing vegetation on the adjacent site will be protected during construction; and 2. Confirmation that no machinery, vehicles, storage of materials or site buildings will be located near or amongst existing native vegetation.

1. The development must be carried out in accordance with the Construction Environmental Management Plan at all times to the satisfaction of the Responsible Authority.
2. The Waste Management Plan and Operational and Management Manual endorsed under this permit must be implemented and continually maintained and updated to the satisfaction of the Responsible Authority.
3. The facility must only operate between the following times:
   1. Sunday to Thursday, 8.00am to 9.00pm; and
   2. Friday and Saturday, 8.00am to 10.00pm.
4. Except with the prior written consent of the Responsible Authority, the food and beverage sales must conclude 30 minutes prior to the nominated closing times in Condition 12, above.
5. The maximum number of patrons permitted within the upper station café (including indoor and outdoor seating areas) at any time must not exceed one hundred (100) people, and no more than 100 seats may be made available within the café area (comprising both the indoor and outdoor areas).
6. The lower station kiosk and upper station café must only operate when the Skylift is operational, to the satisfaction of the Responsible Authority.
7. Except with the prior written consent of the Responsible Authority, no live or amplified music is permitted within the upper station café or the associated outdoor seating area, to the satisfaction of the Responsible Authority.

1. Lighting associated with the approved signage must be designed, baffled and located to the satisfaction of the Responsible Authority so as to prevent any adverse effect on adjoining land.
2. The signs must not be illuminated after closing time of the use, and not more than 60 minutes before the use opens to the public, to the satisfaction of the Responsible Authority.

1. The landscape plan endorsed under this permit must not be altered unless with the written consent of the Department of Environment and Primary Industries [DEPI] and the Responsible Authority.
2. Prior to the commencement of the use, the landscaping works as shown on the endorsed landscape plan must be carried out and completed to the satisfaction of the Responsible Authority.
3. Except with the prior written consent of DEPI and the Responsible Authority, the landscaping referred to in Condition 19 above must be maintained in accordance with the approved landscape plan to the satisfaction of the Responsible Authority, including that any dead, diseased or damaged plants must be replaced as soon as practicable.
4. Prior to the commencement of any buildings or works, appropriate tree protection preconstruction methods must be erected in accordance with Australian Standard AS4970 - 2009 (Protection of trees on development sites) and the recommendations of the Arboricultural Inspection Report dated October 2013. The tree protection measures must remain in place until the completion of any works hereby approved to the satisfaction of the Responsible Authority.

1. All disturbed surfaces on the land resulting from the development must be appropriately revegetated and stabilised to the satisfaction of the Responsible Authority.
2. Prior to the commencement of the use, all alterations to Purves Road and Arthurs Seat Road must be completed to the satisfaction of the Responsible Authority and any other relevant Authority.
3. After the endorsement of Condition 1 plans and before any works associated with the development starts, detailed construction plans to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. The plans must be drawn to scale with dimensions and two copies must be provided. Alternatively, plans in PDF format may be emailed to devengadmin@mornpen.vic.gov.au. The plans must show:

1. All areas of the upper and lower stations including car parking areas being drained by means of an underground drainage system to retain a post development 1 in 10 year storm event for the critical storm duration. Discharge from the site must be limited to an equivalent pre-development flow based on a 1 in 2 year storm event for the critical storm duration and be connected to the existing underground drainage system adjacent to each station; 2. Details and location of each pylon;

1. Details of the crib wall at the rear of the lower station;

1. All foot paths within the upper and lower station areas;

1. The pedestrian crossing within Purves Road; and
2. Access to the upper and lower station common areas being in accordance with current Australian Standards for accessibility.

1. Prior to the commencement of any works associated with the development, drainage computations are required for the drainage system, including consideration of any drainage catchment external to the development that may drain to the drainage system.
2. Prior to the commencement of any works for the lower station site building and the gondola structures, a Form B must be completed by an Engineer and a Specialist Geotechnical Engineer or a Specialist Engineering Geologist with a copy being lodged with the Responsible Authority.

The Form B referred to is a Structural or Civil or Geotechnical Engineering Declaration in accordance with the AGS 'Practice Note Guidelines for Landslide Risk Management 2007'.

A Specialist Geotechnical Engineer or a Specialist Engineering Geologist is a person defined in the AGS 'Practice Note Guidelines for Landslide Risk Management 2007'.

1. Prior to the occupation of the lower station site building, or the operation of the gondola, a Form G must be completed by a Specialist Geotechnical Engineer or Specialist Engineering Geologist with a copy being lodged with the Responsible Authority.

The Form G referred to is a 'Final Geotechnical Certificate' in accordance with the AGS 'Practice Note Guidelines for Landslide Risk Management 2007'.

1. Before the initial occupation of the upper or lower station site buildings, or the operation of the gondola, all civil works within the development must be constructed in accordance with approved construction plans, and be to the satisfaction of the Responsible Authority.

1. The approved use must not cause unreasonable amenity impacts to persons beyond the land because of emission of noise or light-spill, to the satisfaction of the Responsible Authority.
2. Noise emitted to the nearby noise sensitive community from mechanical equipment and gondola operation from the land must be assessed against:
   1. the EPA publication, Noise from Industry in Regional Victoria (NIRV) Publication 1411, dated October 2011 ("NIRV 1411"); and
   2. the Victorian State Environment Protection Policy (Control of Noise from Commerce, Industry and Trade) No. N-1 ("SEPP N-1").
3. Noise emitted from the land must not exceed those required to be met under NIRV 1411 and SEPP N-1 (as amended from time to time).

1. Within three (3) months of the commencement of the skylift operation, a noise commissioning report to the satisfaction of the Responsible Authority must be submitted to the Responsible Authority. The noise commissioning report must be prepared by an acoustic consultant with qualifications and experience to the satisfaction of the Responsible Authority and must:
   1. demonstrate that the noise levels emitted during the day and evening period do not exceed the relevant NIRV 1411 and SEPP N-1 noise limits to the satisfaction of the Responsible Authority; and
   2. recommend noise mitigation steps to achieve compliance with the relevant NIRV 1411 and SEPP N-1 night time noise limits.
2. If the noise commissioning report submitted in accordance with condition 33 indicates that the emitted noise levels do exceed the relevant NIRV 1411 and SEPP N-1 day or evening levels:
   1. the noise commissioning report must recommend noise mitigation measures to ensure compliance with the relevant noise standard; and
   2. the recommendations must be implemented within 3 months of the date of the noise commissioning report (or other such time as approved in writing by the Responsible Authority).
3. All external lighting provided on the site must be baffled so that no direct light is emitted beyond the boundaries of the site and no nuisance is caused to adjoining properties.
4. All excess soil/spoil from the works and other waste material must be removed from the land at regular intervals (at least one occasion per week) to ensure that the amenity of the area is not detrimentally affected, to the satisfaction of the Responsible Authority.
5. Upon commencement of the approved use, goods may only be delivered to and from the land between the 8.00am to 7.00pm on any day, unless with the further written consent of the Responsible Authority.

1. Prior to the commencement of the approved use, reticulated sewer and potable water must be supplied to the upper station, to the satisfaction of the Responsible Authority and any other relevant Authority.

Prior to the commencement of the use, an Emergency Management Plan to the satisfaction of DEPI and the Responsible Authority must be submitted to and approved by the Responsible Authority. The Emergency Management Plan should be developed in consultation with relevant Emergency Services and the Responsible Authority.

The Bushfire/Emergency Management Plan must be prepared by an emergency management consultant with qualifications and experience to the satisfaction of the Responsible Authority.

Bushfire protection measures in the Bushfire/Emergency Management Plan must be informed by detailed analysis and modelling of the potential bushfire approach times from the identified fire scenarios aspects for each gondola station and other likely ignition points.

The Bushfire/Emergency Management Plan must address, but not be limited to, the following:

1. Full risk assessment using a current Australian risk based standard incorporating analysis and prioritisation with corresponding treatments;
2. Specified measures to reduce emergency risks (before an emergency);

1. Procedures for implementing the closure of the use in accordance with Condition 41;

1. Detailed procedures (including communications, response and evacuation) and responsibilities for bushfire and other hazard monitoring and plan activation;
2. Identification of the trigger points for the activation of shelter-in-place procedures versus evacuation procedures and assigning responsibility for the implementation of the identified procedures.
3. Identification of fire warden responsibilities, training, numbers, and schedules for exercising the Bushfire/Emergency Management Plan;
4. Integration with relevant emergency services (including CFA, DEPI, Parks Victoria, Victoria Police and MECC) operational response plans;
5. Detailed analysis and modelling of the potential bushfire approach times from the identified fire scenario aspects for each station and other likely ignition points;
6. Gondola evacuation procedures modelled in a flow chart process with anticipated times for evacuation of patrons;
7. Shelter-in-place procedures for stations with demonstrated capacity for maximum patron numbers;
8. Prioritised bushfire protection maintenance program;

1. Identification of any active fire-fighting systems in relation to the stations;

1. Backup continuity for power to the site; and
2. Any specific requirements to respond to days or times at which the facility must be closed in addition to those identified in Condition 41 including days of extreme fire danger and Total Fire Ban.

When approved, the Bushfire/Emergency Management Plan will be endorsed and form part of the permit.

The use and development must be carried out in accordance with the Bushfire/Emergency Management Plan at all times to the satisfaction of the Responsible Authority.

Department of Environment and Primary Industries [DEPI] Conditions

Amended Plans

1. Prior to the commencement of works, the plans submitted as part of the application must be amended to the satisfaction of DEPI and to the satisfaction and approval of the Responsible Authority. When approved these plans will form part of the permit. The plans must be generally in accordance with the plans submitted with the application but modified to show:

1. The access to any water supply required under Conditions 60 and 61 of this permit. 2. The water supply of the Lower Station in accordance with Condition 60 of this permit.

1. Any pedestrian or vehicular access to the gondola corridor (being the area located 10m either side of the gondola centreline between the Upper Station and Lower Station).

1. At all times subject to a forecast Fire Danger Rating of Code Red; and 2. At all times a Fire Danger Index greater than or equal to 100 applies to the relevant fire district; and

1. At any and all other times identified in the approved and endorsed Bushfire/Emergency Management Plan.
2. The bushfire mitigation measures forming part of this permit or shown on the endorsed plans, including those relating to construction standards, defendable space, water supply and access, must be maintained to the satisfaction of the Responsible Authority on a continuing basis. This condition continues to have force and effect after the development authorised by this permit has been completed.
3. The requirements for an Emergency Management Plan set out at Conditions 39 and 40 form part of the bushfire mitigation measures of this permit for the purpose of Condition 42.

1. The Upper Station must provide the following areas of defendable space, generally in accordance with the Bushfire Management Statement prepared by Terramatrix in February 2014:
   1. To the north-west of Arthurs Seat Road: An inner zone of 85 metres and an outer zone of 30 metres; and

1. To the south-east of Arthurs Seat Road: An inner zone of 65 metres or to Purves Road.

1. The Lower Station must provide the following areas of defendable space, generally in accordance with the Bushfire Management Statement prepared by Terramatrix in February 2014:
   1. To the north and west of the lower station: An inner zone of 60 metres and an outer zone of 20 metres; and
   2. To the south and south-west of the lower station: An inner zone of 41 metres and an outer zone of 19 metres or to Arthurs Seat Road.
2. Vegetation in the inner zones of defendable space must be managed to the following standard, unless otherwise agreed in writing by DEPI and the Responsible Authority:

1. Within 10m of a building, flammable objects such as plants, mulches and fences must not be located close to the vulnerable parts of the building such as windows, decks and eaves; 2. Trees must not overhang the roofline of the building, touch walls or other elements of a building;

1. Grass must be no more than 10cm in height. All leaves and vegetation debris must be removed at regular intervals;

1. Shrubs must not be planted under trees and must be separated by at least 1.5 times their mature height; 2. Plants greater than 10cm in height at maturity must not be placed directly in front of a window or other glass feature; 3. Overall tree canopy cover of no more than 15% at maturity; and 4. Tree branches below 2m from ground level must be removed.
2. Vegetation in the outer zones of defendable space must be managed to the following standard, unless otherwise agreed in writing by DEPI and the Responsible Authority:

1. Grass must be no more than 10cm in height and leaf and other debris mowed, slashed or mulched; 2. Shrubs and/or trees must not form a continuous canopy with unmanaged fuels;

1. Tree branches below 2m from ground level must be removed;

1. Trees may touch each other with an overall canopy cover of no more than 30% at maturity; and 2. Shrubs must be in clumps of no greater than 10m2, and those clumps must be separated from each other by at least 10m.

1. The gondola corridor must incorporate a fuel reduction zone (where practicable) that is managed in accordance with the landscape plan and the Vegetation Management Plan approved under Conditions 2 and 53-58 of this permit.
2. The management of vegetation within the inner zones and outer zones of defendable space must be undertaken in accordance with the landscape plan and the Vegetation Management Plan approved under Conditions 2 and 53-58 of this permit and to the satisfaction of DEPI.
3. Prior to the commencement of buildings and works, the applicant must demonstrate to the satisfaction and approval of the Responsible Authority and DEPI that the inner and outer zones of defendable space will be managed in accordance with the requirements of this permit on an ongoing basis.

1. Prior to the commencement of works, a Defendable Space Plan must be prepared to the satisfaction of DEPI and to the satisfaction and approval of the Responsible Authority. When approved the plan will be endorsed and will then form part of the permit. The plan must be drawn to scale with dimensions and three copies must be provided. The plan must:

1. Be titled as a "Defendable Space Plan", be dated and include a version number; 2. Show the location of defendable space (inner zones, outer zones, and the area of fuel reduction within the gondola corridor) in accordance with Conditions 44, 45 and 48 of this permit;

1. Show the location of any excludable vegetation located within the defendable space areas of the Upper Station or Lower Station;

1. Show the name and responsibilities of any relevant authority, land manager or organisation (private or public) that will manage the area of defendable space (inner zones, outer zones or area within the gondola corridor). The area managed by all relevant authorities, land managers and other organisations (private and public) must be clearly identified on the Defendable Space Plan; and 2. Omit any detail which is not required to depict the above information. This includes but is not limited to omitting site feature survey information.
2. The Defendable Space Plan endorsed under this permit must not be altered unless with the written consent of DEPI and the Responsible Authority.

1. Prior to the commencement of works, a detailed Vegetation Management Plan must be prepared to the satisfaction of DEPI and to the satisfaction and approval of the Responsible Authority.

The plan must outline the degree, approach, method, timing and organisation of vegetation management within the defendable space associated with the development. When approved the Vegetation Management Plan will form part of the permit.

1. The Vegetation Management Plan must detail the name and responsibilities of any relevant authority, land manager or other organisation (private or public) that has vegetation management responsibilities within the defendable space associated with the development.
2. The Vegetation Management Plan must include written agreement from all parties detailed in Condition 54 that they agree to undertake these works on an ongoing basis.
3. All vegetation works must be maintained in accordance with the approved Vegetation Management Plan, unless otherwise agreed in writing by the Responsible Authority and DEPI.
4. The Vegetation Management Plan endorsed under this permit must not be altered unless with the written consent of DEPI and the Responsible Authority.
5. The Vegetation Management Plan must be reviewed a minimum of every five years from the date of issue of this permit, and any amendments must be submitted to DEPI and the Responsible Authority for approval.

1. The construction of the upper station and lower station must be to a minimum bushfire attack level (BAL) BAL-12.5 in accordance with the relevant sections of AS3959-2009.

1. Prior to the commencement of the use and operation of the gondola facility, static water supplies must be provided for both the upper station and lower station. The static water supplies must meet all of the following requirements:

1. The water supplies must each have a minimum capacity of 40,000 litres that is maintained solely for firefighting purposes; 2. The water supply must be stored in an above ground water tank constructed of concrete, steel or corrugated iron;

1. Each water supply must be located within 60 metres of the furthest point (including any obstructions) of each station;

1. The water supply outlet/s must be attached to the water tank and must face away from the building if located less than 20 metres from the building to enable access during emergencies; 2. All pipework between the water supply and the outlet/s must be a minimum of 64 mm nominal bore; 3. All fixed above-ground water pipelines and fittings must be of non-corrodible and non-combustible materials; 4. The water supply must: * (i) Be located in a position approved by the relevant fire authority; * (ii) Be located within close proximity to the main entrance of either gondola station and accessible from the main road network or other approved area e.g. Arthurs Seat Road or an adjacent car parking area; * (iii) Be located so that fire brigade vehicles are able to get to within 4 metres of the water supply outlet and provide for a hardstand of 12 metres by 5 metres; * (iv) Be located so that fire brigade vehicles are able to get to within 4 metres of the water supply outlet; * (v) Incorporate an additional 64 mm (minimum) gate or ball valve and 64 mm (fixed size), 3 threads per inch, male fitting to suit a CFA coupling; and * (vi) Incorporate a vortex inhibitor or additional water must be provided to ensure that the volume of water available is not restricted by a vortex. Refer to Section 5 of AS.2419 for requirements for vortex inhibitors; 5. The water supply outlet must incorporate a ball or gate valve to provide access to the water by the operator of the lift; 6. All below-ground water pipelines must be installed to at least the following depths: * (i) Subject to vehicle traffic: 300 mm; * (ii) Under buildings or concrete slabs: 75 mm; and * (iii) All other locations: 225 mm; and 7. The water supply must be readily identifiable from the building or appropriate signage must be provided which: * (i) Has an arrow pointing to the location of the water supply; * (ii) Has dimensions of not less than 310 mm high and 400 mm long; * (iii) Is red in colour, with a blue reflective marker attached; and * (iv) Is labelled with a 'W' that is not less than 15 cm high and 3 cm thick.

1. Prior to the commencement of the use and operation of the gondola facility, access to any static water supply outlet provided under Condition 60 of this permit must be designed to allow emergency vehicle access. The design of the access (including gates, bridges and culverts) must comply with the following minimum requirements:

1. Access to the water supply must be provided in accordance with Condition 60; 2. Curves in any driveway must have a minimum inner radius of 10 metres;

1. The average grade must be no more than 1 in 7 (14.4 per cent) (8.1 degrees) with a maximum of no more than 1 in 5 (20 per cent) (11.3 degrees) for no more than 50 metres;

1. Dips must have no more than a 1 in 8 (12.5 per cent) (7.1 degrees) entry and exit angle; 2. Designed, constructed and maintained for a load limit of at least 15 tonnes and be of all-weather construction; 3. Have a minimum trafficable width of 3.5 metres and be substantially clear of encroachments for at least 0.5 metres on each side; 4. Be clear of encroachments at least 4 metres vertically; and 5. Incorporate a turning area for fire fighting vehicles close to the building, by either providing: * (i) A turning circle with a minimum radius of eight metres; or * (ii) The driveway encircling the dwelling; or * (iii) A T head or Y head with a minimum formed surface of each leg being 8 metres in length measured from the centre point of the head, and 4 metres trafficable width.

1. In order to offset the removal of 2.647 hectares of native vegetation and 3 scattered trees approved as part of this permit, the applicant must provide a native vegetation offset approved by the DEPI that provides the following:

1. Contribute gain of 0.739 general biodiversity equivalence units; and
2. Be located within the Port Phillip and Western Port Catchment Management Authority boundary or Mornington Peninsula Shire Council municipal district; and

1. Have a strategic biodiversity score of at least 0.365.

The figures may be varied to the satisfaction of DEPI if, based on the endorsed plans in Condition 1, it is demonstrated to the satisfaction of DEPI that less vegetation removal is required than estimated in the witness statement of Mr Brett Lane in "Arthurs Seat Gondola Flora and Fauna Assessment", dated October 2014, in Application for Review P1045/2014.

1. Before works start, a plan to the satisfaction of DEPI identifying all native vegetation to be retained and describing the measures to be used to protect the identified vegetation during construction, must be submitted to and approved by DEPI. When approved, the plan will be endorsed and will form part of this permit. All works constructed or carried out must be in accordance with the endorsed plan.
2. Before any native vegetation is removed, evidence that an offset has been secured must be provided to the satisfaction of DEPI. This offset must meet the offset requirements set out in this permit and be in accordance with the requirements of Permitted clearing of native vegetation - Biodiversity assessment guidelines and the Native vegetation gain scoring manual. Offset evidence can be either:
   1. A security agreement, to the required standard, for the offset site or sites, including an offset plan; or
   2. A credit register extract from the Native Vegetation Credit Register.

1. Prior to the commencement of the permitted development, a Transport Impact Assessment Report (TIAR) must be prepared in accordance with VicRoads Guidelines for Transport Impact Assessment Reports to the satisfaction of VicRoads. The TIAR must as a minimum:

1. Provide a traffic volume forecast and traffic distribution for peak seasons for the permitted use; 2. Assess the need for right turn lanes along Arthurs Seat Road at 1) Purves Road intersection, 2) access to the secondary car park in the summit area, and 3) the access to the upper station and lower station;

1. Include Functional Layout Plans of the mitigating road works identified in the TIAR;

1. Include Functional Layout Plans (FLPs) for the road improvement works identified in the TIAR, including the actions assessed as 'High Priority' as listed in the Arthurs Seat State Park Traffic Management Plan (AECOM ID 60266552, Date 18-Nov-2013, Revision C, Section 4.5 Implementation); and 2. Include Functional Layout of any other proposed works within the Arthurs Street Road.
2. Prior to the commencement of the development, the following must be submitted to the satisfaction of the VicRoads:
   1. An amended plan showing vertical clearance of the Skylift from the Arthurs Street Road level. The vertical clearance needs to be at least 6.4m from the road level; and
   2. An analysis of the pedestrian and patron safety throughout the site in relation to the arterial road network. The analysis must include, but is not limited to:
      • (i) The vertical geometry of the arterial road and proximate Outdoor Seating Area in the upper station, and any appropriate safety measures; and
      • (ii) Calculation of sight distances throughout the summit area, and any appropriate safety measures.
3. Prior to the commencement of any road works, detailed engineering designs and a lighting plan/s, in accordance with the endorsed FLPs, must be submitted to and approved by VicRoads.
4. Prior to the commencement of the use, all the road improvements works as identified in the approved TIAR must be completed in accordance with the detailed engineering plans and lighting plan/s to the satisfaction of, and at no cost to VicRoads.
5. The preparation of the detailed engineering design and the construction and completion of all road works must be undertaken in a manner consistent with current VicRoads' policy, procedures and standards and at no cost to Vic Roads. In order to meet VicRoads' requirements the developer must comply with the requirements documented within "Standard Requirements - Developer Funded Projects" and any other requirements as considered necessary, to the satisfaction of VicRoads.
6. No work must commence in, on, under or over the road reserve without having first obtained all necessary approvals pursuant to the Road Management Act 2004, the Road Safety Act 1986, and any other relevant acts or regulations created under those Acts.

1. This permit will expire if any of the following occur:
   1. The development does not start within three (3) years from the date of this permit;
   2. The development is not completed, or the use is not started, within six (6) years from the date of this permit.

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

[1] Parks Victoria was joined as a party by order of DP Gibson dated 2 September 2014.

[2] The Department of Environment and Primary Industries was joined as a party by order of DP Gibson dated 2 September 2014. This was the Department's name at the time of the Hearing.

[3] These are addressed in greater detail in the body of these reasons.

[4] We have considered the submissions of all the parties that appeared, all the written and oral evidence, all the exhibits tendered by the parties, and all the statements of grounds filed. We do not recite or refer to all of the contents of those documents in these reasons.

[5] Permit conditions were discussed consistent with standard Tribunal practice including some suggested revisions by the permit applicant having regard to the submissions and evidence.

[7] VicRoads requires a minimum clearance of 6.4 metres.

[8] Figures from Mr Czarny's statement of evidence at page 13. There were some varying figures in other documents.

[9] Summarised in plans prepared by Parks Victoria Exhibit PV12.

[10] Clause 22.14 refers to ESO8 and ESO9 that relate to other parts of Arthurs Seat.

[11] We have been assisted in reaching this conclusion by the plan showing the gazetted land subject to Section 32CA of the National Parks Act 1975 (Exhibit PV8). This identifies the leaseable area. The same plan confirms that the Arthurs Seat State Park extends to a level of 6 metres above the surface of Arthurs Seat Road.

[12] This broader categorisation is not in dispute.

[13] The 2008 version is cited in the Scheme. The same broad approach to the definition of the coast is in the more recent adopted 2014 VCS.

[14] As explained in the Management Plan Summary on page v.

[15] There are two versions - a draft dated November 2003 and a final dated May 2004 (Exhibits RA31 and A32).

[17] Examples include those in Exhibit RA2B.

[18] We enquired with the parties whether this raised any question of law. None sought to suggest that it does.

[19] Such as referred to in Ms Greer's statement of evidence.

[20] For example, conditions 3 and 28 referred to in Exhibit RA63 (including requiring an Overflow Parking Plan).

[21] Mr Watters submitted that it is relevant to take into account because it was a matter that the Responsible Authority took into account relying on section 84B(1)(a) of the Planning and Environment Act 1987.

[22] This point is underscored by provisions such as Section 84(3) of the Planning and Environment Act 1987 which expressly excludes the Tribunal from requiring it to take account of exempted matters. While car parking is not exempted in this proceeding, it is, we think, self-evident the fact that no permit is required means that to assess car parking space numbers would be to take account of a matter that cannot be properly before us.

[24] Such as referred to in Ms Greer's statement of evidence.

[25] Including Exhibit RA3 and information within Mr Biles' statement of evidence (Exhibit A41).

[26] Shown in Mr Biles' statement of evidence.

[28] At page 48, the Mornington Peninsula Region Destination Management Plan refers to the former chairlift as a popular tourism attraction and to the proposed expanded gondola ride "Arthurs Seat Eagle" under the heading of "Catalytic Initiatives" (Tab 17 in Exhibit RA2B) . The Plan has been developed by the Mornington Peninsula Regional Tourism Board and its foreword is by the then Minister for Tourism.

[29] The Amendment dealt with many other matters across the Shire as well.

[32] Figure 5 indicates it finishing on the north side of Arthurs Seat Road.

[33] Pioneer Concrete Pty Ltd v Brisbane CC (1980) 145 CLR 48.

[36] We have included the second because the reference to service lines might be said to have some relationship to the cable lines associated with the proposal.

[37] Exhibit P12 shows these areas and the management roles.

[38] This amount is required to be available by conditions on the NoD. Tank storage for some 300,000 litres is proposed on-site at the upper station.

[40] SEPPN-1 is cited in Clause 13.04 but NIRV is not. Its predecessor is cited being the Interim Guidelines for Control of Noise from Industry in Country Victoria 1989. Nonetheless, NIRV is commonly used in assessments as it is the most recent guideline and State policy with respect to noise outside of the Urban Growth Boundary and must have relevance under Section 60(1A)(g) of the Planning and Environment Act 1987 for this reason. No party suggested that NIRV is not appropriate as an assessment tool.

1. [41] East West Link (Eastern Section) Project Assessment Committee Report, 30 May 2014, section 8 at page 217 of 389. It recommended a traffic noise objective of 63 dB LA10(15h) from 7.00am to 10.00pm for passive open space and 68 dB LA10(15h) from 7.00am to 10.00pm for active open space.

[43] VicRoads draft condition (numbered 65 in the conditions included in Appendix A).

[44] We have added a demolition plan and a condition to ensure that heritage fabric such as Arthurs Seat are protected during construction, as discussed at the hearing.

[45] Stewart v Moyne SC [2014] VCAT 360.

[46] Tribe v Mitchell SC [2013] VCAT 832 at paragraph 103.