Annette Aldersea - President, Neville Davis & Sharon Camm, Norman Morrish, Angela Villani, Paul Thomas Sugden, Robert & Annette Aldersea, Ralph Frankcombe, D. Theodore Fernando, John & Joan Parsons, Melbourne Water Corporation, Randall Vague, Graeme Lia, Trevor Westland, Kathy Jarvis, Denise Markovski, Dianne Higgins, Vicki Jones, Mariette Van Schijndel, Andrea Hopgood, Berwick Chamber of Commerce Inc , Neva & Mark Pohlner, Kay Drysdale, K & E Coleman, Michael & Judith Garland, James Ashworth, Jenna McCrory, Mark Stedman, R Braybrook and B Littler, Andrew Henry, Cath Stocks, Brent Ziesler, Caroline Cootes, Peter Pavlovic, Karen Alsop, Barry and Maureen Sutherland, Melanie Whitling, Noelle & Ian Murdoch, David Jarman & Stephen Morris, Patrick Ingram, Chris Drysdale, Meredith Drysdale, Alexander Management Group Pty Ltd, Vic Roads - Metropolitan South East Region

Sheradar Pty Ltd v Casey CC & Ors [2010] VCAT 858

1. Leave is given to the applicant to substitute for the permit application plans, the following plans filed with the Tribunal:

ATP 200 (07), ATP 201 (05), ATP 202 (05), ATP 203 (05), ATP 204 (06), ATP 205 (04), ATP 206 (04), ATP 400 (05), ATP 500 (04), ATP 601 (00)

1. Under section 60 of the Victorian Civil and Administrative Tribunal Act 1988 Mr P Pavlovic is joined as a party to this proceeding.
2. Under section 64(2) of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1988 the application for permit is amended to include removal/variation to an easement.
3. The decision of the Responsible Authority is set aside.
4. In permit application P801/08 a permit is granted and directed to be issued for the land at 1-9 and 11-17 Lyall Road, Berwick in accordance with the endorsed plans and on the conditions set out in Appendix A. The permit allows:
   • The use of land for the purpose of a hotel in the Business 1 Zone
   • The construction of a building and construction or carrying out of works in the Business 1 Zone.
   • The construction of a building and the construction or carrying out of works in the Special Building Overlay.
   • Reduction in the number of car spaces required by the table in Clause 52.06-5.
   • Use of the land to sell or consume liquor.

Mr J Gobbo SC with Ms S Brennan of counsel, instructed by Norton Rose Solicitors.

• J Ganly, Deep End Services Pty Ltd.
• J Govenlock, Urbis Pty Ltd.
• M Sheppard, David Lock & Associates.
• M Wright, Ruch Wright & Associates.
• R Symons, Ratio Consultants Pty Ltd.
• B Raworth, Bryce Raworth Pty Ltd.
• G Pollard, Tee Logic Pty Ltd.

Mr Appudurai called evidence from T Hardingham of O'Brien Traffic.

R Crofts appeared on her own behalf and on behalf of the National Trust Casey/Cardinia Branch,

A Aldersea & N Morrish appeared on behalf of the Ratepayers & Friends of Berwick Village Inc.

H Hutchison appeared on behalf of the Berwick Chamber of Commerce Inc.

J Miller, A Villani, C Stocks, B Ziesler, P Pavlovic

It is proposed to construct a mixed use commercial building of up to five storeys. The proposed uses are:

• Supermarket (3000 m2)
• Specialty shops (1447 m2)
• Office (3632 m2)
• Hotel (46 rooms)
• Hotel functions (208 m2)
• Restaurant (180 seats)
• Restaurant/Bar (352 m2/64 seats)

372 car parking spaces are proposed to be provided.

The building is designed to address Lyall Road and consists of a podium with the ground floor containing retail uses and a hotel over a basement car park. Two curved towers of three and four stories above the podium are proposed generally in the south west part of the site. The towers contain offices and hotel rooms.

Vehicular access to the site is proposed via a new crossover off Lyall Road, opposite the Berwick Market Place shopping centre car park. Signalisation of this intersection is proposed. Two way access is also proposed via a new cross over in Anne Street and McNabb Street.

Application under Section 77 of the Planning and Environment Act 1987 (the Act) to review a decision to refuse a permit.

Clause 34.01-1 a permit is required for the use of land for the purpose of a hotel.

Clause 34.01-4 A permit is required to construct a building or construct or carry out works in the Business 1 Zone.

Clause 44.05-1 A permit is required to construct a building or to construct or carry out works in the Special Building Overlay.

Clause 52.06-1 A permit is required to reduce or to waive the number of car spaces required by the table in Clause 52.06-5.

Clause 52.27 A permit is required to use land to sell or consume liquor.

The site is located on the north west corner of the intersection with Lyall Road, McNabb Street and Anne Street, Berwick.

The site has an irregular configuration with three street frontages and an area of 12,846 m2 The site is currently vacant. The site is also relatively flat although it falls significantly along its north west boundary.

The site forms part of the Berwick Village Major Activity Centre, as defined by the Council's Berwick Village Commercial Centre Strategy. The Activity Centre straddles both sides of High Street with commercial development extending along the eastern side of Lyall Road, directly opposite the review site.

To the north of the review site, along McNabb Street the land uses are predominantly residential. This area rises above the review and site and has an outlook over the site toward the Activity Centre. To the north of the site along Lyall Road the land is zoned residential and used primarily for that purpose. A funeral parlour abuts the review site to the north.

1. Sheradar Pty Ltd applied to the Council for a permit to construct a mixed use commercial building of up to five storeys comprising a supermarket, shops, offices, hotel and restaurant.
2. The Council gave notice of the application and received 335 objections to the application.
3. The Council decided to refuse the application on the following grounds:

1. The proposal is inconsistent with the identity and neighbourhood character, and heritage objectives of the State Planning Policy (Clause 12.05) and Local Planning Policy Framework. 2. The built form and height of the proposed building is inconsistent with Clause 19.03 of the planning scheme and the Berwick Village Commercial Centre Strategy as it does not reflect the expressed characteristics, aspirations and cultural identity of Berwick Village. 3. The proposal fails to demonstrate that there is a sufficient building setback on Lyall Street to cater for the public realm in terms of provision of utility infrastructure and active streetscape (Clause 19.03). 4. The proposal does not adequately address to traffic concerns in Berwick Village Commercial Centre in terms of traffic movement and access to intersections, and has the potential to adversely impact on traffic circulation (Clause 18.02). 5. The proposal is inconsistent with the Clause 18.02 of the Planning Scheme relating to car parking. It is also unable to provide for sufficient car parking to comply with the Berwick Village Commercial Car Parking Strategy rates and Clause 52.06 of the Planning Scheme. 6. The proposal has the potential to adversely impact on the amenity of the adjoining residential area, particularly the properties located in the surrounds of McNabb and Anne Streets.
2. Sheradar Pty Ltd has applied to the Tribunal for a review of the Council's decision.
3. A number of the objectors have also submitted statements of grounds opposing the application.
4. The principal issues in this case can be categorised as follows;

1. Is the proposal supported by the applicable policy framework and the provisions of the planning scheme? 2. Do the design, scale and layout of the proposal contribute to unacceptable amenity, heritage and character impacts?

1. Does the proposal make adequate provision for the parking of vehicles and have the traffic impacts been managed appropriately?
2. The designation of Berwick Village as a major activity centre has significant implications for the development of the centre. Major activity centres are locations in which major retail, commercial, administrative, entertainment and cultural developments are encouraged to locate. The Council through its planning scheme and the various policy documents it has prepared to direct the future development of Berwick Village has included the review site within the boundaries of the major activity centre. It is within this strategic context that considerations about the height, bulk, scale and amenity impacts of this proposal must be undertaken.
3. We acknowledge that this proposal will introduce a substantial new building together with new levels of activity into this locality. The building and activity levels will have an impact on the amenity and character of this locality, and also on the traffic volumes around the centre. These impacts however have been well managed through the design of the proposal and are acceptable in the context of the Council's policies for this centre specifically, and with broader policies about major activity centres generally.
4. Our reasons for directing the grant of a permit are set out below.

Is the proposal supported by the applicable policy framework and the provisions of the planning scheme?

1. The Council's position on this proposal was that the site presented opportunities for some form of mixed use and retail development and that a development of some scale would be likely to be considered appropriate. It was submitted however that this proposal is excessive in scale and is in fact an overdevelopment of the site, reflected in increased traffic and inadequate car parking leading to significant amenity impacts which are not justified by the policy framework and the zoning of the land.
2. The objectors also submitted that the proposal is excessive in scale, height and bulk and fails to respond to or respect the low scale heritage, character of the Berwick Village. The objectors also expressed significant concerns about the traffic impacts and the provision of car parking which, in their submission is inadequate and would have adverse impacts on the existing centre and the amenity of surrounding residential streets.
3. There is no doubt that this proposal does represent a significant development in the Berwick Village activity centre. It will introduce a building which is in part five storeys high. It will have a visual impact on the surrounding area including residential areas. The proposed uses will generate additional traffic volumes and movements on the surrounding street network. Increased demand for car parking will occur.
4. The extent to which these impacts are acceptable or not, must be assessed in the context of the policy framework and the zoning of the land, the combination of which provide direction as to how this site, and the Berwick Village in general is to be developed.
5. It is appropriate therefore that we record our findings about the policy framework and planning scheme provisions and how these have influenced our conclusions.
6. There is a high degree of consistency between the State Planning Policy Framework (SPPF) and the Local Planning Policy Framework (LPPF) in the Casey Planning Scheme about the role of activity centres in achieving sustainable land use and development patterns in metropolitan Melbourne.
7. Activity Centre policy is a key platform of the SPPF in achieving the objective of a "more compact city" in which development that takes full advantage of existing settlement patterns, and investment in transport and communication, water and sewerage and social facilities, is facilitated[1]. The SPPF establishes a hierarchy of activity centres in which new development near current infrastructure and in areas best able to cope with change is concentrated[2].
8. The Council's Municipal Strategic Statement[3] and local policy at Clause 22.07 complement the SPPF by encouraging the development of a diverse, robust activity centre system focused on viable retail goods and services' cores that form vibrant foci for community life and which are capable of evolving to accommodate changing needs[4].
9. Under Clause 22.07 Berwick Village is classified as one of four major activity centres. These centres are described in the following terms:

Major Activity Centres provide a wide range of shopping, commercial and community goods and services to cater for day-to-day and weekly shopping and a range of discretionary needs. They serve a catchment of approximately 50,000 to 75,000 persons and generally include a discount department store(s), supermarkets and a wide variety of goods and services[5].

1. To give effect to the policy framework for activity centres, the Council has prepared a strategy plan for the Berwick Village[6]. The strategy contains a variety of objectives and provisions which in broad terms seek to create a viable, integrated and consolidated centre which services the needs of its community. The review site is included in the boundaries of the activity centre. The strategy also envisages a three storey height limit but beyond that the plan provides only general direction as to how the site is encouraged to be developed and integrated with the balance of the centre.
2. The provision of a significant mixed use development on a large, vacant site within the activity centre contributes to the achievement of the strategy's objectives for the centre, and to the achievement of broader policy objectives for sustainable settlement patterns generally. The proposed supermarket and specialty shops will add variety to the existing retail offer within the centre. The hotel will provide short term accommodation and the restaurant/bar will add entertainment options. These uses are to be provided on a site which in the Berwick context enjoys reasonable access to public transport.
3. The strategy envisages a three storey height limit within the activity centre, but we are satisfied that on this site, a larger building can be contemplated. We have formed this conclusion on the basis that the review site is large, and it is located on a main road[7]. Sites which enjoy these attributes, which are zoned Business 1 and are located within a major activity centre, are rare. Subject to the consideration of, amongst other matters, amenity, built form, traffic and car parking considerations, the policy framework and the provisions of the zone seek to achieve intensive development of such sites. A limitation of the site's development potential to three storeys represents a very limited and constrained assessment of the outcomes which the planning scheme seeks to achieve for this site.

Do the design, scale and layout of the proposal contribute to unacceptable amenity character and heritage impacts?

1. The objectors submitted that the proposal fails to respond to the heritage context of the Berwick Village activity centre. In particular it was submitted that the proposal would diminish the heritage significance of the Berwick Inn which is located to the south east of the site on the corner of Lyall Road and Princes Highway.
2. The Berwick Inn is affected by a heritage overlay (HO30)[8], as are other individual places within the centre and the wider locality. The review site is not affected by a heritage overlay, and as a consequence the development of the site is not subject to a consideration of issues under that overlay.
3. The proposal will not have an adverse impact on the heritage significance of the Berwick Inn primarily because the Inn is separated from the site by some considerable distance including the width of Lyall Road. The significance of the Inn will continue to be appreciated notwithstanding that the proposal and the Inn will be viewed in the same view cone from various vantage points in the public domain.
4. With respect to the form, scale and design of the building there are a number of aspects of the proposal which make positive contributions to the activity centre. These include:
   • The building is highly articulated through a combination of varying materials, heights and setbacks. The building will certainly be prominent but because of its architectural treatment it will be an interesting building on a site which demands a landmark statement.
   • The building provides active retail frontages to Lyall Road, combined with weather protection and a public forecourt. The shop fronts reflect the traditional configuration of shop fronts in Berwick Village and this is reinforced by the offices above.
   • Logical and legible pedestrian linkages are also provided between the site and the wider activity centre. These features will assist with the integration of the proposal with the balance of the activity centre, to the extent that this is possible given the width of Lyall Road.
   • Attention has been given to the design and location of features such as parking, loading, plant and equipment.
   • The height of the building, especially as it presents to Lyall Road is well modulated with setbacks from the street frontage. From an urban design perspective, the proposed height of the building is justified on the basis that the proposal represents a well designed building sited on a large, vacant site fronting a wide, busy road. It is also relevant that the opposite side of Lyall Road is characterised by extensive at grade parking, with the two storey commercial development beyond the parking and somewhat distant from the site. Combined with the width of Lyall Road, there is no sense of enclosure associated with the proposed building height. A building of approximately equivalent height (the Berwick Marketplace) is also located opposite the review site. The Market place building has none of the architectural features and qualities which characterise the proposal for this site.
   • The maximum height of the building is concentrated in the south west part of the site, scaling down to the more sensitive residential interfaces to the north. The highest part of the building adopts a curved form which successfully modulates the visual bulk of the building. The physical context of the site at this location is strongly influenced by the open space reserve and the road infrastructure associated with the Princes Highway. A well designed landmark building will make a welcome addition to this locality.
5. The design of the building has also responded appropriately to the site's residential interfaces. Both Mr Govenlock and Mr Sheppard provided detailed assessments of each of the site's residential interfaces and concluded that the impacts are acceptable in the context of the site's location within a major activity centre. We agree with their assessments having regard to the following:
   • The physical characteristics of the sites abutting or located adjacent to the review site. These features include the dimensions and configuration of the sites, the topography, site and dwelling orientation and the existence of vegetation along common boundaries.
   • The orientation of the site means that shadow impacts are very limited.
   • Retail and pedestrian activity is oriented toward Lyall Road and Anne Street, and there is no direct relationship between specialty retailing and the residential areas.
   • Operational issues associated with the various proposed uses are capable of being controlled by way of permit conditions.
   • Loading facilities are suitably treated to limit noise emissions to acceptable levels.
   • Modulations in building heights, articulation in built form and the provision of landscaping to soften the visual impact of the building, all contribute to ensuring that the bulk and visual impacts of the building are not unreasonable.
6. The Council raised an issue concerning the location of an easement through the site. It was submitted that the inability to resolve issues surrounding the relocation of infrastructure in the easement may necessitate a redesign of the proposal. We are satisfied that there are no insurmountable impediments to achieving a resolution of this matter.

Does the proposal make adequate provision for the parking of vehicles and have the traffic management impacts been managed appropriately?

1. With respect to the provision of car parking the Council relied on the evidence of Mr Hardingham. It was Mr Hardingham's evidence that the provision of 372 parking spaces is not adequate and that 427 spaces should be provided to accommodate weekday lunchtime peak parking demands. The peak parking demand at this time is associated with the significant office component in the proposal which means that peak demand would occur on weekdays during office hours. There would be little office activity at other times.
2. Mr Hardingham's assessment of an appropriate parking provision relies in part on a report prepared by GTA Consultants in 2006 in which parking surveys were undertaken in the Berwick Village activity centre leading to the specification of parking rates for various uses. The Council has subsequently adopted a Parking Precinct Plan (PPP) for the activity centre, but for reasons which can only be speculated on, the review site was specifically excluded from the PPP.
3. It was Mr Hardingham's evidence that only very limited scope existed to reduce the parking supply for this proposal on the basis of shared parking between uses, because in this outer suburban location limited reliance can be placed on public transport use.
4. Mr Apidurai submitted that notwithstanding the fact that the PPP is not applicable to this site, the parking rates in the PPP remain the most reliable empirical basis upon which to assess parking demand characteristics for this locality.
5. Mr Symons based his assessment on the parking rates contained in the report of the Ministerial Advisory Committee which in 2007 recommended revised planning scheme parking requirements. The Committee recommended the adoption of lower rates than those currently contained in the planning scheme, especially for activity centre locations. The lower recommended rates for activity centres are in part based on the achievement of broad planning policy focusing on the achievement of sustainability objectives. The implementation of these objectives involves discouraging excessive use of private vehicles and encouraging public transport, walk and cycle travel modes.
6. Mr Symons also identified opportunities for shared use of car parking assuming different peak demands for each of the uses.
7. The principal points of difference between the witnesses related to the generation rates for supermarkets and for office.
8. There was also a difference about the floor area calculation for the office.
9. We have not been persuaded to apply the parking rates specified in the PPP or as recommended by Mr Hardingham. The PPP parking rate for supermarket of 6 spaces per 100 m2 is not consistent with the empirical work undertaken by GTA Consultants. Mr Hardingham's rate of 5.5 spaces per 100 m2 is not based on independent empirical research undertaken by him. Both rates are significantly higher than those regularly found to be appropriate.[9]
10. The parking rate of 3 spaces per 100 m2 for offices is also consistent with the Advisory Committee recommendations for sites within activity centres. This rate has been adopted by the Tribunal over a number of years. We have not been persuaded that in the context of this site a higher parking rate is necessary.
11. We make the observation that the rates adopted by the Advisory Committee seek to apply parking rates which reflect broad planning policy objectives rather than being confined to the provision of a specified number of parking spaces. The lower recommended rates for activity centres are in part based on the achievement of sustainability objectives, the implementation of which involves discouraging excessive use of private vehicles and encouraging public transport, walk and cycle travel modes. These are worthy objectives which should be pursued in preference to imposing excessive parking requirements.
12. We do however agree with Mr Hardingham that the floor are calculation for the office component ought to reflect the planning scheme requirement relating to net floor area[10]. Mr Hardingham calculated the net floor area of the office as 3632 m2. An additional 17 parking will need to be provided.
13. Both the Council and objectors made extensive submissions about the existing traffic conditions in Berwick and submitted that the proposal would turn an existing bad situation into traffic mayhem.
14. VicRoads attended the hearing and supported the Council's submission on these matters.
15. Vic Roads is not a referral authority for this application. The reasons for Vic Roads attendance at the hearing are not immediately clear and their submission was not particularly useful to the Tribunal.
16. Mr Hardingham was critical of the assumptions underpinning the proposed access/egress arrangements and intersection treatments. It was his evidence that the traffic distribution analysis is flawed and that as a consequence McNabb Street and Kramer Street are vulnerable to a significant increase in traffic volume. Concern was also expressed about the workability of the proposed signalised intersection.
17. We do not accept these criticisms. The only capacity analysis carried out is that undertaken by Mr Symons. During the course of his evidence he was requested to undertake a series of sensitivity analyses to test the various assumptions underpinning that original capacity analysis. The sensitivity analyses demonstrated to our satisfaction that the proposal will not contribute to the dire conditions assumed by the Council and objectors, and that the impacts will be acceptable.
18. We have however imposed a condition requiring a realignment of the Lyall Road access to the car park, generally in accordance with one of the options shown on the amended plan tabled by Mr Hardingam at the hearing. We were not been persuaded that a left turn slip lane is required, principally because of the adverse impact this would have on the public realm including the loss of street trees. We acknowledge that this change requires the relocation of an office stair well further to the west but we do not think that impact is significant. We have imposed other conditions intended to address detailed design issues for the car park layout and loading and unloading facilities.

1. It follows from the above reasons that it is our conclusion that the decision of the responsible authority should be set aside and a permit be granted.
2. In deciding the conditions to be included on the permit we have had regard to the draft conditions provided to the Tribunal by the responsible authority and the submissions and evidence of the parties in addition to the matters which arise from these reasons.

1. Before the development starts, amended plans 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 substituted by the Victorian Civil and Administrative Tribunal at the hearing on 15 March, 2010, but modified to show, to the satisfaction of the Responsible Authority:

1. all references to 'retail' on the plans replaced with 'shop';
2. the relocation of the office stair well on Lyall Road to the west, allowing for a realignment of the Lyall Road access to the car park, to provide for delivery truck access from the left lane.

1. the canopy along the Lyall Road frontage of the Land set back behind the face of the kerb to the satisfaction of the responsible authority.

1. the existing footpath adjoining the land providing access to the development;
2. provision of a footpath along the eastern side of McNabb Street;
3. the location of the bus stop and associated facilities on Lyall Road to the satisfaction of the responsible authority;
4. pedestrian crossings on and associated with the land to Council standards;
5. waste and recycling bin storage and collection screened from public view;

1. a functional layout plan for vehicle access and intersection treatment showing:

• swept paths for delivery vehicles manoeuvring within the site;
• appropriately designed turn treatments at the signalised access point along Lyall Road;
• swept path diagrams demonstrating entry/exit movements to, and from, the land;
• appropriately designed turn treatments at the proposed traffic signals (shopping centre car park entry);
• the grading of the access ramp to McNabb Street including the provision for a future footpath;
• access points to Anne Street and McNabb Street to include a pedestrian sight triangle as required under AS2890.1;
• a functional layout plan of the signalised intersection of Lyall Road, the site access and entry/exit point to Berwick Market Place to the satisfaction of VicRoads, the Responsible Authority and the Director of Public Transport;

1. all staff parking located within the basement level car park;
2. layout of the ground floor car parking area reconfigured to allow car spaces adjacent to the loading bays allocated to staff and employees only;

1. car parking for the office floor space provided at a rate of 3.0 spaces per 100 m2 of net floor area.

1. provision of bicycle facilities in accordance with the requirements of clause 52.34 of the Casey Planning Scheme;

1. a landscape plan providing for streetscape works Lyall Road abutting the land to the satisfaction of the responsible authority.

1. all doors, windows, vents and openings to the basement car park must be a minimum of 300mm above the applicable flood level; and
2. finished floor levels must be a minimum of 300mm above the applicable flood level.

1. This permit shall not come into effect until the agreement, made under section 173 of the Planning and Environment Act 1987, and registered on the title of Lot 1 on TP528807U has been removed.

1. The development and use as shown on the endorsed plans must not be altered without the prior written consent of the Responsible Authority.
2. The power lines along Lyall Road abutting the land must be placed underground to the satisfaction of the responsible authority.
3. The amended plans required to be submitted, must be accompanied by written evidence of necessary approvals granted by the relevant authorities whose assets are located within the road reserve on Lyall Road along the route proposed for the re-alignment of the 675mm outfall drain pipe.
4. The easement, in favour of the council, which is shown traversing Lot 1 on Title Plan 528807U between Lyall Road and the drainage easement in favour of Melbourne Water must not be removed until after the amended plans have been endorsed by the responsible authority.
5. Prior to the commencement of the use of the development:

1. the premises must be connected to reticulated water supply, sewerage, drainage and underground electricity to the requirements of the relevant servicing authority; 2. car park signage including directional signs and line markings must be provided in accordance with Australian Standards;

1. all walkways, ramps, TGSIs and landings connecting the disabled parking spaces to entries within the development must be installed in accordance with DDA requirements and Australian Standards;

1. lighting to access points, parking and circulation areas including pedestrian areas must be installed in accordance with Australian Standards; and 2. the development including all landscaping works must be complete in accordance with the endorsed plans,

1. All fixtures and fittings servicing any building on the site must be concealed in service ducts or otherwise hidden from view to the satisfaction of the Responsible Authority.
2. 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 prior written consent of the Responsible Authority.

1. Before the development starts, a landscape plan prepared by a person suitably qualified or experienced in landscape design 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. The plan must be drawn to scale with dimensions and three copies must be provided. The plan must be in generally accordance with Landscape Plan Prepared by Rush/Wright but modified to show, to the satisfaction of the Responsible Authority:
   1. details of all streetscape works in Lyall Road, Anne Street and McNabb Street, including plant species, street furniture and paving;
   2. the streetscape works within the development (plaza/forecourt area and car parking areas). All paving, seating, street lighting, and street furniture, including screening panels seating and litter bins must use materials consistent with those installed in High Street Berwick Village.
2. The landscaping works shown on the endorsed plans must be maintained in accordance with the endorsed plans to the satisfaction of the Responsible Authority. Areas shown on the endorsed plan as landscaped must not be used for any other purpose. For the avoidance of doubt, maintaining landscaping includes the removal and replacement of any dead, diseased or damaged plants.
3. The development must not adversely affect existing vegetation to be retained on adjoining sites including street trees. Where works occur in the vicinity of existing trees to be retained, such works must be to the satisfaction of a suitably qualified Arboricultural consultant and the Responsible Authority.
4. Prior to the commencement of works:
   1. a Tree Protection Plan for all vegetation to be retained must be prepared by a suitably qualified Arborist and approved by the Responsible Authority; and
   2. a statement from a qualified Arborist must be provided to the Responsible Authority detailing that tree protection measures are in place in accordance with the Tree Protection Plan.
5. Tree protection measures for all existing vegetation to be retained (including street trees), must be in place in accordance with Australian Standard AS-4970-2009, prior to the commencement of any site works and must remain in place until all site works are completed to the satisfaction of the Responsible Authority.
6. Canopy trees must not be planted within any easement or within the confines of verandahs or building canopies. All planting within any drainage and sewerage easement must be to the satisfaction of the Responsible Authority.

1. No polluted and/or sediment laden runoff is to be discharged directly or indirectly into Melbourne Water's drains or watercourses.
2. All entry ramps to the basement car park must have a continuous apex with a minimum of 300mm freeboard. All doors, windows, vents and openings to the basement car park must be a minimum of 300mm above the applicable flood level.
3. Finished floor levels at ground floor level of the building must be a minimum of 300mm above the applicable flood level.
4. Upon the completion of works and before any active use of the building for its intended purpose, a certified survey plan, showing finished floor levels (as constructed) reduced to the Australian Height Datum, must be submitted to Melbourne Water to demonstrate that the floor levels have been constructed in accordance with Melbourne Water's requirements.
5. Prior to commencement of works, a detailed landscape management plan for the easement is to be submitted to Melbourne Water for approval. The use of non- indigenous plants is not supported by Melbourne Water. The plants must be appropriate for use over stormwater drains.
6. Footings must meet Melbourne Water's angle of repose requirements. Please contact Melbourne Water's Assets Team for further details regarding requirements on 92351414.
7. Prior to the commencement of works separate application, direct to Melbourne Water, must be made for any new or modified storm water connection to Melbourne Water's drains or watercourses. Prior to accepting an application, evidence must be provided demonstrating that Council considers that it is not feasible to connect to the local drainage system.

Contact Asset Services on telephone 9235 1414 for Melbourne Water's connection requirements, including payment of appropriate fees.

1. The use and development (including construction activities) must not, to the satisfaction of the Responsible Authority, adversely affect the amenity of the area through the:

1. transport of materials, goods or commodities to or from the land; 2. appearance of any building, works or materials;

1. emission of noise, artificial light, vibration, smell, fumes, smoke, vapour, steam, soot, ash, dust, waste water, waste products, grit or oil;

d) presence of vermin. 2. Noise levels emanating from uses on the land must not exceed those required to be met under State Environment Protection Policy (Control of Noise from Commerce, Industry and Trade), No. N-1 and State Environment Protection Policy (Control of Music Noise from Public Premises), No. N-2. 3. All security alarms or similar devices installed on the land must be of a silent type in accordance with any current standard published by Standards Australia International Limited and be connected to a security service. 4. No external sound amplification equipment or loud speakers must be used for the restaurant and hotel for the purpose of announcement, broadcast, playing of music or similar purpose, unless with the written consent of the responsible authority. 5. All external plant and equipment must be screened to the satisfaction of the Responsible Authority. 6. External lighting must be designed, baffled and located so as to prevent any adverse effect on adjoining land to the satisfaction of the Responsible Authority.

1. Before the use starts, a Traffic and Parking Management Plan 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 Traffic and parking operations on and adjacent to the site must conform to this endorsed plan. Three copies of the plan must be submitted. The plan must be generally in accordance with the plans substituted by the Victorian Civil and Administrative Tribunal but must include:

1. the location of all parking areas on and off-site to be used for staff and patron parking; 2. specification of staff numbers adequate to enable efficient operation of car parking areas both on- and off-site;

1. the means by which the direction of traffic and pedestrian flows to and from car parking areas will be controlled both on- and off-site;

1. measures to preclude staff parking in designated patron car parking areas; 2. staffing and other measures to ensure the orderly departure and arrival of patrons especially any large groups departing at closing time; 3. servicing of the drainage and maintenance of car parking areas.

The Traffic and Parking Management Plan may be amended from time to time with the prior written consent of the Responsible Authority.

1. The land must be used in accordance with the approved Traffic and Parking Management Plan.

1. The standard of material and works must be in accordance with Council's Standard Specifications for Roadworks and to the satisfaction of the Responsible Authority.
2. Prior to the commencement of the use of the development, all roadworks must be completed in accordance with endorsed plans to the satisfaction of Council.
3. The traffic signals on Lyall Road shown on the endorsed plans must be operational prior to the commencement of the use of the development.
4. Vehicular crossings must be constructed/altered and widened to the road to suit the proposed driveways to the satisfaction of the Responsible Authority and any existing crossing or crossing opening must be removed and replaced with footpath, nature strip, and kerb and channel to the satisfaction of the Responsible Authority.
5. Prior to the commencement of the use of the development, areas set aside for the parking of vehicles and access lanes as shown on the endorsed plans must be:

1. Constructed; 2. properly formed to such levels that they can be used in accordance with the plans;

1. line-marked to indicate each car space and all access lanes; and 2. clearly marked to show the direction of traffic along access lanes and driveways, to the satisfaction of the Responsible Authority.
2. Car spaces, access lanes and driveways must be kept available for these purposes at all times.
3. All car parking spaces must be designed to ensure forwards movement only of vehicles both entering, and leaving, the development.

1. Deliveries to and from the site (including waste collection) must only take place between:

1. 6.00 am and 9.00 pm Monday to Friday; 2. 7.00 am and 5.00 pm Saturday; and,

1. 9.00 am and 5.00 pm Sunday or public holiday.
2. Deliveries to and from the site by semi trailers must only take place between 7.00 am and 10 am and after 10.00 pm on any day.

1. Prior to the commencement of the licensed use on the land a Liquor Licence Management Plan must be submitted to and approved by the Responsible Authority. The Liquor Licence Management Plan must address the management and security arrangements for the licensed premise and, as a minimum, specifically address the following matters:
   • general amenity including control of noise, lighting, deliveries/unloading of vehicles;
   • operational matters including security, litter control, CCTV security cameras, reporting and surveillance;
   • staff training in the responsible service of alcohol and commitment to Casey Liquor Licensing Accord 2006;
   • provision of smoking and litter receptacles in the external alfresco dining and outdoor smoking areas; and
   • measures to promote a safe and pleasant environment for patrons and staff and to prevent and control anti-social behaviour.

When approved, the Liquor Licence Management Plan will be endorsed and form part of this permit. The approved Liquor Licence Management Plan may be amended at any time, with the prior written consent of the Responsible Authority. The Licensee and proprietor of the licensed premises must comply with the approved Liquor Licence Management Plan to the satisfaction of the Responsible Authority.

1. The Licensee must meet with Council officers (and representatives of the Victor Police, if considered necessary) on a regular basis (at least every quarter) to discus issues which have arisen in relation to compliance with the Liquor Licensing Audits
2. The licensed use as shown on the endorsed plans must not be altered without the written consent of Responsible Authority.
3. No alcohol is to be consumed outside the nominated area permitted for alcohol consumption shown on the endorsed plans.
4. The sale and consumption of alcohol within the restaurant and function room area of the hotel shall be restricted to the following hours:

1. Sunday - 9.00 am to 11.00 pm; 2. Good Friday and Anzac Day - 12.00 noon to 11.00 pm;

1. any other day - 7.00 am to 1.00 am the following day.

1. Prior to the commencement of development, the applicant must submit a Waste Management Plan showing all bin storage and collection areas and a description of how waste will be conveyed to the bins and ensuring there is adequate safe access for the collection trucks. The plan must also detail who will be responsible for cleaning and maintenance of all bins and compounds and any other issues associated with the management of waste for the use and development.

1. Prior to the commencement of the development a drainage design for the land, including longitudinal sections and pit schedule showing all relevant services affecting the 675mm diameter outfall drain pipe in the drainage and sewerage easement traversing across the site from the east side of Lyall Road to Melbourne Water main drain on the north side of the subject site, must be provided to the satisfaction of the responsible authority. This plan must demonstrate how the municipal pipe and easement will be diverted to link Melbourne Water's drain;
2. Detailed drainage construction plans for the diversion pipe must be provided to the satisfaction of the responsible authority.
3. The plans required to be submitted, pursuant to conditions 52 and 53 must be accompanied by written evidence of necessary approvals granted by the relevant authorities whose assets are located within the road reserve on Lyall Road along the route proposed for the re-alignment of the 675mm outfall drain pipe.
4. The easement, in favour of the council, which is shown traversing Lot 1 on Title Plan 528807U between Lyall Road and the drainage easement in favour of Melbourne Water must not be removed until after the plans, referred to in conditions52 and 53 have been endorsed by the responsible authority
5. Detailed plans to show how the building is protected from the flood flow path must be provided to the satisfaction of the responsible authority. ;
6. Provision of a gross pollutant trap to control run-off from the car park and the development must be provided to the satisfaction of the responsible authority.
7. Storm water must not be discharged from the site other than by means of an underground pipe drain discharged to an approved outlet to the satisfaction of the Responsible Authority.
8. Polluted drainage must not be discharged beyond the boundaries of the land, or into a watercourse or easement drain, but must be treated and/or absorbed on the land to the satisfaction of the Responsible Authority.
9. Appropriate sediment control measures must be undertaken during construction to ensure that the development site is adequately managed in such a way that no mud, dirt, sand, soil, clay or stones are washed into or allowed to enter the stormwater drainage system.
10. The stormwater drainage system on the site must be designed such that stormwater runoff exiting the land meets the current best practice performance objectives for a stormwater quality, as contained in the Urban Stormwater Best Practice Environmental Management Guidelines (Victorian Stormwater Committee, 1999) to the satisfaction of the responsible authority.

1. Prior to the commencement of the development a site specific Construction Management Plan must be submitted to and approved by the Responsible Authority. The plan must be to the satisfaction of the Responsible Authority. No alterations to the plan may occur without the prior written consent of the Responsible Authority. All works must be undertaken in accordance with the approved plan to the satisfaction of the Responsible Authority. In preparing the Site EMP, the applicant must use the environmental protection measures as set out in EPA's publication 480 "Environmental Management Guidelines for Major Construction Sites" unless he/she can demonstrate that alternative techniques can fulfill the specified site requirements.
2. During construction of the development, a truck wheel-wash must be installed and used so vehicles leaving the site do not deposit mud or other materials on roadways to the satisfaction of the Responsible Authority.

1. This permit will expire if one of the following circumstances applies:
   1. The development is not started within five years of the date of this permit.
   2. The development is not completed within seven years from the date of this permit.

The Responsible Authority may extend the time if a request is made in writing before the permit expires or within three months afterwards.

[6] Berwick Village Commercial Centre Strategy, Adopted by the Council 5 March 2002. The document has not been formally incorporated into the Casey Planning Scheme but it has been adopted by the Council and under Section 60(1a)(g) of the Planning and Environment Act 1987, it is a document we may consider.

[7] Lyall Road is in a Road Zone Category 2.

[8] The Council's heritage study includes the following statement of significance for the building:

Originally known as the Border Hotel and licensed to its founder Robert Bain in 1857, the Berwick Inn has regional significance in its associations with the early history of the district. It was an important public meeting place, the scene of the first Police Court and Bet-wick District Road Board meetings and a major staging past on the Gippsland gold rush route. The main structural features of the corner building and 1877 additions are remarkably intact externally.

These sections of the building are rare examples of Victorian architecture on the main street and demonstrate innovative design, adapting to the unusual corner site, and creating a prominent landmark in the Berwick High Street precinct. Historically, an important meeting place, the Berwick Inn has continuing social value.

[9] Mr Gobbo referred us to a number of relevant cases in which the rate adopted by the Tribunal ranged from 3.2 spaces per 100 m2 to 4.3 spaces per 100 m2.

[10] Net floor area is defined at Clause 72 as:

The total floor area of all floors of all buildings on a site. It includes half the width of any party wall and the full width of all other walls. It does not include the area of stairs, loading bays, accessways, or car parking areas, or any area occupied by machinery required for air conditioning, heating, power supply, or lifts.