For the reasons given above, the decision of the responsible authority will be set aside. A permit will be granted subject to conditions.
[2]
Mr Shenfield seeks an order that the Council reimburse him the total application and hearing fees in this proceeding.
There is a legislative presumption that Mr Shenfield is entitled to an order unless the Council satisfies the Tribunal there was reasonable justification in failing to grant a permit before Mr Shenfield applied to the Tribunal, having regard to the nature of the permit application, the conduct of Mr Shenfield, and any matter beyond the reasonable control of the Council.[6]
The relevant background to Mr Shenfield's application is:
Mr Shenfield made the permit application to the Council on 15 April 2016 and applied to the Tribunal on 20 June 2016.
The Council did not request any further information before 20 June 2016 and did not give or direct notice of the application before 20 June 2016.
Despite a number of requests to the Council, the Council did not form a position on the application before Mr Shenfield applied to amend the plans on 11 November 2016. Mr Shenfield filed statements of evidence on 23 November 2016 and later that day received the Council's position on the original plans. The Council did not give Mr Shenfield its position on the amended plans until 2 December 2016.
Mr Shenfield relies on what he describes as the Council's inexcusable delays in processing the application and the Council's conduct leading to the hearing.
The Council opposes an order and submits Mr Shenfield is not entitled to reimbursement of his fees because there was reasonable justification in failing to grant a permit before 20 June 2016 having regard to the nature and complexity of the permit application and matters beyond the reasonable control of the Council. The Council does not rely on the conduct of Mr Shenfield.
I do not agree that the permit application raised 'a wide range of sophisticated planning, traffic, heritage, arboriculture and landscaping issues' to such an extent that no decision could be made either on its merits or on whether further information was needed or whether notice should be given in the 66 day period before the application was made.
It is clear from the Council's ultimate assessment that its planners were waiting for internal traffic and heritage advice before finalising their recommendations.
The planners received the traffic advice on 13 October 2016. There is no satisfactory reason why the Council's traffic engineers needed 181 days to advise on the key issue of whether vehicle access to the land from the west side lane should or should not be supported.
The planners received the heritage advice on 8 September 2016. The advice was detailed and comprised 8 pages, but there is no satisfactory reason why the heritage adviser needed 156 days to assess the permit application and why the adviser was unable to even inspect the land in that period.
There is nothing that suggests the traffic and heritage advisers needed more information from the application to complete their advice.
The Council also relied on the interpretation of DDO12 and the 'significant' concern by residents in its submission that the permit application was anything but standard. There is nothing in DDO12 that was particularly complex. As no notice of the permit application was given and as the Council's submission did not refer to concerns by residents before 20 June 2016, I do not find any concerns by residents that warrant characterising the permit application as complex.
The second ground on which the Council relies is the shortage of senior planning staff to assess the permit application. It refers to the loss of three senior personnel in the planning office during 2016. It states it sought to recruit replacement senior staff but this has taken time. The Council also submits it has been 'inundated' by many 'complex' permit applications in 2016. It submits the loss of staff and the additional applications are not within the reasonable control of the Council.
I find the loss of senior staff and the recruitment of replacements is within the reasonable control of the Council. This is a normal part of workforce planning. An increase in permit applications makes the Council's task of deciding permit applications within prescribed periods more difficult. However, I agree with the Tribunal in Tiber Amber[7] that fluctuations in workload is within the Council's reasonable control and cannot be characterised as unforeseen. If the legislature intended that such matters were reasonable justification for not reimbursing fees, the provision would have little substance.
Accordingly, I will order reimbursement.
[3]
Construction of fifteen dwellings on two lots in a General Residential Zone
Construction of a front fence with a height more than 1.5 metres in a General Residential Zone
Partial demolition and construction of buildings and works in a Heritage Overlay
Construction of buildings and works with a building height 10 metres or more in a Design & Development Overlay
Reduction in the number of visitor vehicle parking spaces from 3 to 2
[4]
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 Amended Plans dated November 2016 but modified to show:
(a) A schedule of construction materials and external finishes and colours including paint samples.
(b) All column locations at each grade changing point of the ramp being clearly provided and annotated on the plans; aisle widths, headroom and AHD levels.
(c) Provision of line marking and/or signage for all car spaces including installation of relevant unit numbers. The visitor car spaces are also to be either signed and/or line marked.
(d) The proposed basement entry to incorporate a minimum 2.2m headroom clearance at the entrance, measured perpendicular to the ramp.
(e) The installation of a 'STOP-GO' signal system, with priority given for vehicles entering from the street.
(f) Water sensitive urban design measures in accordance with Condition 7 of this permit.
(g) A Tree Management Plan in accordance with Condition 13 of this permit.
(h) A Waste Management Plan in accordance with Condition 19 of this permit.
(i) A Construction Management Plan in accordance with Condition 21 of this permit.
(j) A detailed Landscape Plan generally in accordance with the landscape concept plan prepared by JFK Design, known as Sheet LS01 rev A dated 3 November 2016 and be drawn to scale with dimensions and three copies must be provided. The plan must show:
(a) A survey, including, botanical names of all existing trees to be retained on the site including Tree Protection Zones calculated in accordance with AS4970-2009 and condition 13 of this permit.
(b) A survey including botanical names, of all existing trees on neighbouring properties where the Tree Protection Zones of such trees calculated in accordance with AS4970-2009 fall partially within the subject site.
(c) A planting schedule of all proposed trees and shrubs, including botanical names, common names, pot sizes, sizes at maturity, and quantities of each plant.
(d) Landscaping and/or planting within all areas of the site not covered by buildings or hard surfaces.
(e) Details of surface finishes of pathways and driveways.
(f) Details of a green wall installation on the west elevation of the new proposed form and the western section of the north elevation.
(g) For the three Japanese Maple trees on the east boundary opposite the apartment 3 secluded private open space substitute no less than three other species with a mature height of no less than 4 metres and located opposite that open space and opposite apartment 4 bedroom 1.
(h) Any other changes to be in accordance with all conditions in this permit.
[5]
All changes to the plans must be to the satisfaction of the Responsible Authority.
[6]
(k) The correction of the section label and ramp label as shown on the drawing TP-12 Rev VB dated 5 December 2016 prepared by JFK Design.
(l) A label on the north elevation on drawing TP-11 as the 'proposed north elevation'.
(m) Correction of the finished floor levels of the roof decks on the roof plan (TP-09) consistent with the finished floor levels shown on the elevations and sections (TP-11 & TP-12)
(n) The provision of three bicycle parking spaces for residents in the basement, generally in accordance with sections 7.1.5 & 7.1.6 of the statement of evidence prepared by Brett Young dated November 2016 tendered in Victorian Civil and Administrative Tribunal proceeding no. P1247/2016.
(o) A garden bed no less than 500 mm wide between the apartment 1 verandah and deck.
[7]
The development as shown on the endorsed plans must not be altered without the prior written consent of the Responsible Authority.
All plant and equipment to be located away from habitable room windows of the dwellings and the adjoining properties habitable rooms. No plant, equipment, services or architectural features other than those shown on the endorsed plans are permitted above the roof level of the building/s without the written consent of the Responsible Authority.
All pipes with the exception of downpipes, fixtures, fittings and vents servicing any building on the site must be concealed in service ducts or otherwise hidden from view to the satisfaction of the Responsible Authority.
The walls on the boundary of the adjoining properties shall be cleaned and finished to the satisfaction of the Responsible Authority.
Before occupation, screening of windows including fixed privacy screens be designed to limit overlooking as required by Standard B22 and be installed and maintained to the satisfaction of the Responsible Authority thereafter for the life of the building.
Before the endorsement of Condition 1 plans, detailed plans to the satisfaction of the Responsible Authority must be submitted to and be endorsed by the Responsible Authority. The plan must be drawn to scale with dimensions and three copies must be provided. The plans must show:
(a) The type of water sensitive urban design stormwater treatment measures to be used.
(b) The location of the water sensitive urban design stormwater treatment measures in relation to buildings, sealed surfaces and landscaped areas.
(c) Design details of the water sensitive urban design stormwater treatment measures, including cross sections.
[8]
These plans must be accompanied by a report from an industry accepted performance measurement tool which details the treatment performance achieved and demonstrates the level of compliance with the Urban Stormwater Best Practice Environmental Management Guidelines, CSIRO 1999.
[9]
The water sensitive urban design stormwater treatment system as shown on the endorsed plans must be retained and maintained at all times in accordance with the Urban Stormwater - Best Practice Environmental Management Guidelines, CSIRO 1999, to the satisfaction of the Responsible Authority.
Before the occupation of the development starts, the area(s) set aside for vehicle parking and accessways must be constructed, drained and line marked to the satisfaction of the Responsible Authority. Such areas must be kept available for these purposes at all times.
[10]
Before the occupation of the development starts, new or altered vehicle crossing servicing the development must be constructed to the satisfaction of the Responsible Authority and any existing disused or redundant crossing or crossing opening must be removed and replaced with footpath/nature strip/ kerb and channel, to the satisfaction of the Responsible Authority.
Before the occupation of the development the landscaping works shown on the endorsed plans must be carried out and completed to the satisfaction of the Responsible Authority.
The landscaping shown on the endorsed plans must be maintained to the satisfaction of the Responsible Authority, including that any dead, diseased or damaged plants are to be replaced.
Before the development starts, including any related demolition or removal of vegetation, a Tree Management Plan (report) and Tree Protection Plan (drawing), to the satisfaction of the Responsible Authority, must be submitted to and be endorsed by the Responsible Authority. The Tree Management Plan must be specific to the trees shown on the Tree Protection Plan, in accordance with AS4970-2009, prepared by a suitably qualified arborist and provide details of tree protection measures that will be utilised to ensure all trees to be retained remain viable post-construction. Stages of development at which inspections are required to ensure tree protection measures are adhered to must be specified. The Tree Protection Plan must be in accordance with AS4970-2009, be drawn to scale and provide details of:
(a) The Tree Protection Zone and Structural Root Zone for all trees to be retained on the site and for all trees on neighbouring properties where any part of the Tree Protection Zone falls within the subject site.
(b) The location of tree protection measures to be utilised.
(c) Any required pruning of the canopy of trees to be retained before works start.
All protection measures identified in the Tree Management and Protection Plans must be implemented, and development works undertaken on the land must be undertaken in accordance with the Tree Management and Protection Plans, to the satisfaction of the Responsible Authority. A tree protection fence is for the protection of a tree's canopy and root zone. Conditions for street tree protection fencing during development are as follows:
(a) Fencing is to be secured and maintained prior to demolition and until all site works are complete.
(b) Fencing must be installed to comply with AS 4970-2009, Protection of trees on development sites.
(c) Fencing should encompass the Tree Protection Zone (TPZ) for all street trees adjacent to the development.
(d) Fencing is to be constructed and secured so its positioning cannot be modified by site workers.
(e) If applicable, prior to construction of the Council approved crossover, TPZ fencing may be reduced to the edge of the new crossover to facilitate works.
Prior to soil excavation for a Council approved crossover within the TPZ. A trench must be excavated along the line of the crossover adjacent to the tree using root sensitive non-destructive techniques. All roots that will be affected must be correctly pruned.
Any installation of services and drainage within the TPZ must be undertaken using root sensitive non-destructive techniques.
Before the commencement of any works, detailed plans indicating, but not limited to, the method of stormwater discharge to the nominated Legal Point of Discharge (and On-Site Detention System where applicable) must be submitted to and approved by Council's Infrastructure Assets Department.
Before the commencement of any works, the permit holder must apply to Council for the Legal Point of Discharge for the development from where stormwater is drained under gravity to the Council network.
Before the commencement of any works, a Waste Management Plan (generally in compliance with the Waste Management Plan author Solution Traffic Engineers dated April 2016) must be submitted to and approved by the Responsible Authority. The Waste Management Plan must clearly indicate that waste collection is to be via a private contractor, not Council, must be consistent with the plans endorsed under condition 1, and must include:
(a) Storm water drains in storage areas should be fitted with a litter trap.
(b) The number and size of bins to be provided.
(c) Facilities for bin cleaning.
(d) Method of waste and recyclables collection ensuring bin collection is via private collection during after hours.
(e) Types of waste for collection, including colour coding and labelling of bins.
(f) Hours of waste and recyclables collection (to correspond with Council Local Laws and EPA Noise Guidelines).
(g) Method of hard waste collection.
(h) Method of presentation of bins for waste collection.
(i) Strategies for how the generation of waste and recyclables will be minimised.
(j) When approved, the plan will be endorsed and will then form part of the permit. Waste collection from the development must be in accordance with the plan, to the satisfaction of the Responsible Authority.
(k) Provision must be made on the land for the storage and collection of garbage and other solid waste. This area must be graded and drained and screened from public view to the satisfaction of the Responsible Authority.
(l) All waste material not required for further on-site processing must be regularly removed from the site. All vehicles removing waste must have fully secured and contained loads so that no wastes are spilled or dust or odour is created to the satisfaction of the Responsible Authority.
Before the commencement of works, a Construction Management Plan (CMP), to the satisfaction of the Responsible Authority, must be submitted to and approved by the Responsible Authority. When approved, the plan will be endorsed and will then form part of the permit and shall thereafter be complied with. The CMP must specify and deal with, but not be limited to the following as applicable:
(a) A detailed schedule of works including a full project timing.
(b) A traffic management plan for the site, including when or whether any access points would be required to be blocked, an outline of requests to occupy public footpaths or roads, or anticipated disruptions to local services, preferred routes for trucks delivering to the site, queuing/sequencing, excavation and swept-path diagrams.
(c) The location for the parking of all construction vehicles and construction worker vehicles during construction.
(d) Delivery of materials including times for loading/unloading, unloading points, expected frequency and details of where materials will be stored and how concrete pours would be managed.
(e) Proposed traffic management signage indicating any inconvenience generated by construction.
(f) Fully detailed plan indicating where construction hoardings would be located.
(g) A waste management plan including the containment of waste on site: disposal of waste, stormwater treatment and on-site facilities for vehicle washing.
(h) Containment of dust, dirt and mud within the site and method and frequency of clean up procedures in the event of build-up of matter outside the site.
(i) Site security.
(j) Public safety measures.
(k) Construction times, noise and vibration controls.
(l) Restoration of any Council assets removed and/or damaged during construction.
(m) Protection works necessary to road and other infrastructure (limited to an area reasonable proximate to the site).
(n) Remediation of any damage to road and other infrastructure (limited to an area reasonably proximate to the site).
(o) An emergency contact that is available for 24 hours per day for residents and the Responsible Authority in the event of relevant queries or problems experience.
(p) Traffic management measures to comply with provisions of AS 1742.3-2009 Manual of uniform traffic control devices - Part 3: Traffic control devices for works on roads.
(q) All contractors associated with the construction of the development must be made aware of the requirements of the Construction Management Plan.
(r) Details of crane activities, if any.
This permit will expire if one of the following circumstances applies:
(a) The development is not started within two years of the date of this permit.
(b) The development is not completed within four years of the date of this permit.
[11]
In accordance with Section 69 of the Planning and Environment Act 1987, a request may be submitted to the Responsible Authority within the prescribed timeframes for an extension of the periods referred to in this condition**.**
[2] The submissions and evidence of the parties, any supporting exhibits given at the hearing and the statements of grounds filed have all been considered in the determination of the proceeding. In accordance with the practice of the Tribunal, not all of this material will be cited or referred to in these reasons.