Silverton Group Pty Ltd v Boroondara CC & Ors [2011] VCAT 374

1. The decision of the responsible authority in relation to permit application no. PP09/00955 is set aside[1].
2. A permit is granted in relation to land at 188 Whitehorse Road and 19, 21 & 23 Jersey Road, Balwyn. The permit will allow use and development of the land for shop and supermarket and 155 dwellings in four (4) buildings, alteration to access on a Road Zone Category 1 and a reduction in the car parking requirements in accordance with the endorsed plans and subject to the conditions contained in Appendix A to these reasons.

Mr Chris Townshend SC of Counsel instructed by Hoeys Lawyers.

Ms Anita Viswanathan and Mr Herman Lai, town planners

Ms Eliza Bergin, solicitor of the Victorian Government Solicitor's Office

In person. Ms Fletcher also appeared for Ben, Maureen and Ian Sorahan.

Mr Lowrie. Mr Lowrie also appeared for Messrs/ Mesdames Fiona Cranwell, Peggy Fitchett, Asha Reddaway, E G Eastgate, Jean M McColl, N W Smart, Aime and Bruno Metsar, Elena Toppi, Lyn Boothby, Greg Toogood, Michael and Lenny Ha, Janet Taylor, Maria Clarke, B L Schoffelen, Dr David Ellett, B T Sangalang, Kaye Berry, Susan Vero, Peter Barson, Marnie and Michael O'Brien and Christine Swan.

1. The developer sought permission to build a supermarket, one shop and 173 apartments in four buildings ranging between three levels to seven and a half levels on a large L-shaped property at the western end of the Balwyn shopping centre which is categorised as a Large Neighbourhood Activity Centre.
2. A 2009 Tribunal decision[2] on this land directed that a permit issue for a supermarket with basement car parking and two levels of offices above. This decision also found the site enjoyed existing use rights for parking at the rear of 19 & 21 Jersey Street. The case before us proposes a supermarket of a similar size[3] and basement parking for the supermarket.
3. As Boroondara City Council failed to make a decision within time limits, the developer reviewed its refusal to the Tribunal, with neighbouring objectors joining in the hearing in opposition to the proposal. The Tribunal issued an interim decision with respect to this permit application on 25 November 2010[4].
4. As set out in our interim decision, we found that this site has strong policy support in the Boroondara Planning Scheme for maximising residential density in a location with excellent access to public transport, within the Balwyn Activity Centre and in proximity to a wide range of services and facilities. The proposal creates a synergy between increased housing and the activity centre. The local structure plan adopted by Boroondara City Council seeks a higher built form that will change the character and streetscape of the Balwyn Activity Centre. The permitted supermarket component also formed part of the background facts, as did a permit for a four storey office building with café/restaurant at ground level on the abutting land to the west.
5. Despite this general support for the proposal, we found that it did not ensure an appropriate standard of amenity for future residents and would cause unreasonable impacts on the amenity of existing residents. Unacceptable aspects of the proposal included the seven and a half storey height of Building 2 to Jersey Street, submerged dwellings and the constrained landscaping opportunities adjacent to residential land.
6. Our interim decision afforded the developer the opportunity to revise the plans and address a number of matters that we set out in paragraph 114 of the interim decision[5].
7. In reaching a final determination, we have considered all supplementary material and submissions filed with our leave, although we do not recite all of the contents. We have also considered the submissions presented during the earlier phase of these proceedings and at the reconvened hearing on 2 March 2011.

What material was received in response to the interim decision?

1. In response to our directions, a set of revised plans, written list of changes and written reports relating to landscaping and tree protection were filed and served by the developer.
2. A submission was received from Boroondara City Council dated 27 January 2011 identifying a number of concerns relating to the revised plans and requesting a further hearing.
3. VicRoads made a submission dated 12 January 2011 advising that the amended plans satisfy their requirements and requesting inclusion of specified conditions on any permit issued. Ms Bergin representing the Department of Transport also advised at the reconvened hearing her client's satisfaction with the amending plans as affected her client's interest.

1. Key changes made in the revised material filed by the Applicant for Review include:

1. Building 2 reduced to a maximum of five and half storeys; 2. Deletion of the submerged element of Building 3;

1. Amended plans and Landscape plans showing a partial basement setback to 17 Jersey Street sufficient to provide for canopy planting in deep soil;

1. Amended Landscape plans to maximise the landscaping in natural soil to the south boundary; 2. A Landscape Establishment Management Plan explaining the detail in the establishment of the plantation and planter boxes, including correct soil type, construction method, drainage systems, moisture sensors devices, and automatic drip irrigation systems; 3. A Landscape Maintenance Management Plan setting out ongoing maintenance that includes details of owner's corporation access to boundary landscape areas to ensure ongoing maintenance; 4. Extruding the architectural entry element to Building 1 up the entire elevation of the podium (4 storeys); 5. Balconies with a minimum area of 6 square metres; 6. A physical impediment preventing right hand turns into Jersey Street from the loading bay; 7. A physical impediment preventing right hand turns into the supermarket from Whitehorse Road.
2. The Tribunal needs to assess whether the amending plans fully address our recommendations.

1. Mr Rantino for the Responsible Authority divided the issues of concern into a number of categories:
   1. Identifying a change of policy that the Tribunal should consider before a final decision issues;
   2. Supermarket traffic circulation as a result of the consent position arrived at on the first day between VicRoads, Palace Cinemas, the council, the developer and the Department of Transport;
   3. Whether the amending plans fully address the recommendations and requirements of the interim decision;
   4. Matters of detail that can be addressed by permit conditions and on which both the permit applicant and council agree.

1. Mr Rantino properly brought to our attention the gazettal of Amendment VC75 which occurred on 16 December 2010 after the issue of our Interim Decision. This amendment altered clause 16 of the State Policy Planning Framework relating to housing by deleting the encouragement for intense housing along tram lines as well as a reference to Melbourne @ 5 Million.
2. We do not agree with Council's submission that the gazettal of Amendment VC75 changes the policy position to a degree that would alter our view on the proposal.
3. Firstly, we acknowledge the changes to the Scheme under Amendment VC75 but consider there is still significant support in the Scheme for increased housing intensity on the review site. This includes the following strategy at clause 16.01-2:

Encourage higher density housing development on sites that are well located in relation to activity centres, employment corridors and public transport

Encourage a diversity of housing types at higher densities in and around activity centres.

1. Secondly, Amendment VC75 has not changed local policy that supports higher density development in and around commercial centres and increased housing diversity in the municipality.

1. When this hearing commenced on 6 October 2010, the issue of the access into the supermarket from Whitehorse Road was discussed at some length. The Palace Cinema, VicRoads and the Department of Transport objected to the developer's proposal to relocate a signalised pedestrian crossing and to allow a right turn entry into the supermarket from Whitehorse Road. The supermarket enjoyed an existing planning permit which constrained access from Whitehorse Road to left hand turn in only as illustrated on plan by GTA Consultants PL dated 30 July 2008.
2. The Responsible Authority, the developer, Palace Cinema, VicRoads and the Department of Transport consented to maintain the existing location of the signalised pedestrian crossing and the left hand turn in only arrangements as permitted under the existing supermarket planning permit and GTA Consultants PL plan dated 30 July 2008.
3. The Tribunal adopted their consent position on the basis that if there were any alteration of this position, VicRoads and the Department of Transport would be recalled to the hearing to deal with any challenge to this consent position. There was no such challenge during the course of submissions and cross-examination.
4. In a right of reply, Mr Leuner who substituted for Mr Lowrie on the final day of the hearing, tried to open the issue of supermarket traffic circulation. The purpose of a right of reply is to give parties the opportunity to address new information that arose after they had made their presentation or their cross-examination. Mr Leuner did not make a submission nor cross-examine. Mr Lowrie made submissions on behalf of the persons he represented but did not cross-examine the developer's traffic engineer on these issues.
5. If we had considered the existing approval of the supermarket traffic circulation as pivotal to our decision making, we would have adjourned the hearing to re-introduce these matters. However, given the existing permit that allows identical access to a supermarket and office development on this site, and the strong policy imperative to keep traffic moving on main roads, we supported the consent position. This consent position is now reflected in the amending plans.
6. At this reconvened hearing, Mr Rantino sought to reopen the implications of the consent 'left hand turn in only' position, i.e. that it may cause circulation issues and cumulative traffic impacts for residents in Jersey Street and the residential hinterland. The supermarket ingress arrangements do not arise as a result of our recommendations as they were agreed to on the first day of the hearing and have not been required by the Tribunal. The Tribunal did however take into account, in reaching its decision, the impacts arising out of this consent position, as we discussed at the reconvened hearing on 2 March.
7. It was a critical component of our interim decision that commercial vehicles for the supermarket, despite the location of the loading bay in a Business 2 zone, not be allowed to do a right hand turn into Jersey Street and circulate into the residential hinterland beyond.
8. We accepted the evidence that traffic generated by the residential component of this development could be accommodated through the residential hinterland.
9. The left hand turn in only restriction to the supermarket will change traffic circulation patterns in the area. We were not persuaded by the evidence that this would result in an unreasonable increase in traffic in the residential hinterland associated with the supermarket use. It would be no different a situation than exists under the current supermarket permit.
10. In making our interim decision we did consider residents' concerns with customers entering Jersey Street to execute u-turns back into Whitehorse Road to do a left turn manoeuvre into the supermarket car park in Whitehorse Road. We reached the view that if this manoeuvre were to result in traffic circulation problems in the future, council and VicRoads could undertake remedial measures.

Do the amending plans fully address our recommendations?

1. We are satisfied that the amending plans generally respond to the matters of concern raised in our interim decision with some outstanding matters capable of being addressed by permit conditions.
2. We record the following findings in relation to the amending plans:
   1. The reduction in height of Building 2 to a maximum of five and half storeys achieves an acceptable transition between the three storey height of Building 3 and the single and double storey development elsewhere in Jersey Street. We do not agree with Council that it creates a 'top heavy' appearance or that deletion of a further level is required.
   2. Deletion of the sub-floor level of Building 3 successfully addresses our concerns about the poor amenity outcome for those units in terms of inadequate outlook and poor access to light.
   3. The provision of deeper planter boxes to maximise the landscaping in natural soil to the south boundary which abut Business 2 zoned land is a marked improvement on the lodged application.
   4. There are however two important recommendations that have not been complied with, which we now address.

Landscaping to the southern boundary abutting 17 Jersey Street

Amended plans and Landscape plans showing a basement setback to 17 Jersey Street sufficient to provide for canopy planting in deep soil.

1. The amending plans do not fully achieve this requirement and we agree with council's submission that this is unsatisfactory. Part of the subject site at 19 & 21 Jersey Street and the neighbour at 17 Jersey Street are in a Residential 1 zone. The five and a half-storey building on 23 Jersey Street and part of 21 Jersey Street and the seven-storey building on 188 Whitehorse Road will be prominent from the Jersey Street hinterland and require filtered views.
2. Three-storey Building 3 and its two-storey basement has been setback 2m from the boundary with 17 Jersey Street for a distance of 33.66m which will allow for planting in deep soil and the successful establishment of weeping lily pilys to comfortably reach an 8-metre height.
3. However of the remaining 12.39m (of the 46.05m long common boundary with 17 Jersey Street) only the lower ground level is setback 2m with an approximate soil depth of 4.3m. This will not provide the landscaping opportunities we seek for this sensitive interface between the residentially zoned portion of the review site and adjoining residential land which affects the Lowries, the Has and the residents of 17 Jersey Street.
4. At the reconvened hearing, options to comply with our recommendation to supply the 2-metre setback allowing for canopy planting in deep soil were explored. We are satisfied that the lower level basement (B2) can be setback 2 metres with a consequential loss of two car spaces associated with the residential component of the development. This does not concern us as there is an oversupply of residential parking according to Rescode standards. We note that the development is now for 155 dwellings instead of the original 173 dwellings which were before us originally and this reduces the amount of car parking required.
5. A 2-metre setback for the basement parking (B1) associated with the supermarket to comply with our recommendation will result in a net loss of four (4) car spaces for the supermarket[6] and shop[7], reducing the total number of 113 car spaces shown on the plans to 109. We accept that calculation of the car parking ratio was based on a supermarket floor space that included a large airlock. The airlock does not need to be included in the supermarket floor space under the planning scheme. Excluding this airlock from the calculation, but applying the same ratio of 4:100m2 as per our interim decision, the required number is brought down to 106 car spaces for the supermarket and 4 for the shop (unaltered), i.e. a total of 110 spaces.
6. A 2-metre setback along the entire boundary of 17 Jersey Street can therefore be achieved with only the loss of one supermarket car space which in our opinion is an inconsequential loss and an acceptable outcome. We will impose conditions to achieve this outcome.

Landscaping to the southern boundary abutting the Business 2 zone

1. Our interim decision also required the same treatment to the remaining interface to the southern boundary adjacent to 2, 4 & 6 Grant Avenue (which abut a Business 2 zone) if possible:

Amended plans and Landscape plans showing a basement setback to 17 Jersey Street sufficient to provide for canopy planting in deep soil, and if possible, the same treatment at the remaining interface with dwellings to the south.

1. Mr Townshend explained that this was not possible without compromising the number of car spaces required for the supermarket and shop. He called it a 'deal breaker'. Discussion ensued concerning placing some supermarket staff parking contained in the Business 2 zone into the basement residential car park which lies in the Residential 1 zone and has an excess of car spaces. But this was quickly dismissed as the Residential 1 zone is prohibited for shop parking, irrespective of the limited existing use rights found by Senior Member Byard in the 2009 Silverton decision[8].
2. However, we anticipated in our Interim Decision that it may not be possible to achieve deep soil planting along the entire interface with the Residential 1 zone, so we asked for:

If the reduced car parking provision does not allow a reduced basement size adjacent to 2, 4 & 6 Grant Avenue, amended Landscape plans to maximise the landscaping in natural soil to the south and western boundaries.

1. We are satisfied that the amending plans maximise the landscaping in natural soil to the south by increasing the depth of the planter box from 1.6 metres to approximately 4.3 metres. The planting opportunities in this depth of soil will allow for effective canopy landscaping that will filter views to the subject site and its buildings over time.

Landscaping to the western boundary abutting the Business 2 zone

1. Without going into detail in the decision, we were hopeful that the same outcome could be achieved for the western boundary.
2. The amending plans do not increase the landscaping opportunities to the west although discussions illustrated an opportunity to increase the perimeter landscaping in the south west corner of the site by moving the fire escape stairs a minimum of two metes north of the southern boundary. This will have the benefit of providing deep soil planting in this corner for a large canopy tree with spread that will benefit the outlook from 3 Bevan Street and 6 Grant Avenue.
3. We are satisfied that the Landscape Establishment Management Plan and the Landscape Maintenance Management Plan required by conditions 114 (e) and (f) demonstrate that Aussie Southern Lily Pilys and Weeping Lily Pilys will screen this interface together with climbing figs, ivys and jasmines hanging over the easement wall. Provided this landscaped setback remains in the Owners Corporation ownership and maintenance regime it can be successfully established as well as maintained.
4. We consider it essential for perimeter landscaping adjacent to residentially zoned land to be under Owners Corporation control to ensure ongoing and uniform maintenance.

1. Some minor matters relating to screening of balconies and windows, consistency between plans and elevations, details of type of screening, signage, car park control devices and traffic control devices and other matters still need to be improved. We agree with council that these matters can be addressed by permit conditions.
2. There was disagreement between the Responsible Authority and the developer on the 10.00pm time limit for supermarket loading and unloading on weekdays. Although we acknowledge the existing supermarket permit allows for supermarket loading and unloading to occur until 10.00pm weekdays, we think there may be adverse amenity impacts to the future residents of the development arising from this late night activity beneath and next to them. We therefore agree with the Responsible Authority that an 8.00pm weekday time limit is appropriate.

1. We identified the potential to address the unacceptable aspects of this development through amending plans. The amending plans submitted have addressed the shortcomings we identified, or can be modified to do so via permit conditions.
2. As we said in our Decision Summary on 25 November 2010, the site has strong policy support for increased residential density, there is an existing permit for a supermarket in a four level building, and we think the amending plans achieve the appropriate balance between accommodating additional housing on this well located site in an activity centre and achieving a built form and urban design outcome that responds to its site context, to its sensitive rear hinterland and to the emerging character of the area as envisaged in council's structure plan for this activity centre.
3. Following consideration of the amending plans and the submissions made at the hearing held on 2 March 2011, we have decided to allow the application for review subject to conditions.

188 Whitehorse Road and 19, 21 & 23 Jersey Road, Balwyn

Use and development of the land for shop and supermarket and 155 dwellings in four (4) buildings, alteration to access on a Road Zone Category 1 and a reduction in the car parking requirements in accordance with the endorsed plans and subject to the following conditions.

1. Before the commencement of the development, amended 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 must generally accord with the plans by Hayball P/L Project No. 1568, Sheets SK_02, SK_03b, SK_04, SK_05, SK_06, SK_07, SK_08, SK_09, SK_10, SK_11, SK_12, SK_14, SK_15, SK_16, SK_17, SK_22 and SK_23 all Revision 3 and all dated 20 December 2010 but modified to show:

1. All perimeter landscaping abutting the southern and western boundaries in common ownership (of the Owner's Corporation) and not in the private ownership of abutting dwellings.
2. The staircase on the south-west corner of the development relocated so that it is moved a minimum of two metres to the north of the southern boundary.

1. The screening to the southern end of the balconies of the apartments located in the south west corner shown on SK 07 & SK 08 be made consistent with the elevation plans and for apartments 1.2.20 and 1.3.20 the screening be part wrapped around so as to prevent views to the south east.

1. The screening of south facing windows of apartments 1.2.21, 1.2.20, 1.3.21 and 1.3.20 to comply with clause 55 of the Boroondara Planning Scheme.
2. The screening of west facing balconies and windows of apartments 1.2.21 and 1.3.21 to comply with clause 55 of the Boroondara Planning Scheme.
3. The provision of disabled access to the retail premises to the satisfaction of the Responsible Authority.
4. A schedule of external materials and finishes (incorporating colour samples) to the satisfaction of the Responsible Authority.

5. Details of all proposed screening demonstrating compliance with Clause 55 of the Boroondara Planning Scheme.

7. Details of the proposed screening of the rooftop plant and equipment with the screening to be 500mm above the highest point of the plant and equipment.

1. On Plans SK_03b Rev 3 and SK_02 Rev 3 extend the two metre setback along the eastern end of the southern boundary towards the west to align with the entire title boundary of 17 Jersey Street;

1. Amend the car park layouts as a consequence of the above condition so that:
   1. On Plan SK_02 Rev 3 there is no more than a net loss of two car spaces; and
   2. On Plan SK_03b Rev 3 there is no more than a net loss of four car spaces.

1. Details of the location and type of car park control devices required throughout the basement levels.
2. A sign at the entrance of the site facing Jersey Street advising that delivery trucks must enter the site in a forward direction.
3. The provision of traffic devices to guide delivery trucks into position on the turntable.
4. A sign at the supermarket loading area exit prohibiting vehicles leaving the site from turning right into Jersey Street.
5. A swept path diagram prepared by a suitably qualified traffic engineer demonstrating that the maximum size permitted vehicles can safely and conveniently enter and exit the supermarket loading area without traversing the splitter island.
6. Notation or colour coding of the basement car parks showing allocation of car parking spaces between the residential apartments, residential visitor, retail customers and retail staff.
7. Each apartment must have at least one car space allocated to it other than the three bedroom apartments which must have at least two car spaces allocated to them.
8. All tandem car spaces must be allocated to the one apartment.

1. Concurrent with the endorsement of the plans referred to in Condition 1 of this permit, a landscape plan prepared by a landscape architect or suitably qualified and experienced person or firm must be submitted to the satisfaction of the Responsible Authority. The landscape plan must be generally in accordance with landscape plan no. 10-195 LV1 Rev A dated 16 December 2010, Section Plan no. 10-195 TP VCAT dated December 2010 and the Establishment Specification for Roof Terrace Planters dated 17 December 2010 all prepared by John Patrick Pty Ltd but updated to include:
   1. Details of the soil depth and volumes of each of the planter box types;
   2. Commentary on the general water needs of the landscaping sufficient to show that the irrigation system is satisfactory.
   3. A canopy tree inserted into the space in the south-west corner created by relocating the staircase a minimum of two metres to the north of the southern boundary.

When the landscape plan is to the satisfaction of the Responsible Authority it will be endorsed and will form part of this Permit.

1. All perimeter landscaping abutting the southern and western boundaries must remain in common ownership (of the Owner's Corporation) and must not be included in the private ownership of abutting dwellings.

1. Landscaping as shown on the endorsed landscape plan must be carried out and completed to the satisfaction of the Responsible Authority prior to the occupation of the development.

1. A Tree Management Plan for the protection of the street trees in Jersey Street must be submitted to the satisfaction of the Responsible Authority and once approved will be endorsed and will form part of this permit. The Tree Management Plan must be generally in accordance with the Tree Management Plan prepared by John Patrick Pty Ltd dated December 2010 but modified to include:
   1. 1.7 metre high fence (minimum height) around the trees is to be provided in lieu of 1.2 metres;
   2. A minimum 300mm deep layer of coarse woodchip on the ground within the fenced area;
   3. Specification that all pruning is to be done by or under the supervision of Council's arborist at the expense of the permit holder.
   4. Item 3 of section 3.5 be amended to include the words "and Council's arborist at the expense of the permit holder" at the end of the first sentence.

1. A Landscape Maintenance Management Plan must be submitted to the satisfaction of the Responsible Authority to apply to boundary landscaping and other planting in common areas and once approved will be endorsed and will form part of this permit. The Plan must generally be in accordance with the Landscape Maintenance Management Plan prepared by John Patrick Pty Ltd dated 17 December 2010 but amended to include a protocol for gaining access for maintenance purposes to perimeter landscaping in common ownership abutting the southern and western boundaries and to other planting in common areas.

1. The use and development as shown on the endorsed plans must not be altered without the written consent of the responsible authority.

1. No car parking associated with the shop or supermarket can occur in the residential car park accessed off Jersey Road.

1. All buildings and works must be maintained in good order and appearance to the satisfaction of the Responsible Authority.

Conditions required by the Director of Public Transport

1. The left in only access arrangement as shown on GTA Consultants plan dated 30 July 2008 must not be altered without the consent of the Director of Public Transport.
2. Prior to the occupation of the development appropriate traffic management signs must be installed at the Whitehorse Road entry to enforce the "left in left / right out" access configuration to the satisfaction of the Director of Public Transport at the full cost to the permit holder.
3. The permit holder must take all reasonable steps to ensure that disruption to tram operation along Whitehorse Road is kept to a minimum during the construction of the development. Foreseen disruptions to tram operations during construction and mitigation measures must be communicated to Yarra Trams and the Director of Public Transport fourteen days (14) prior.
4. The permit holder must ensure that all track and tram overhead and supporting infrastructure is not damaged or that works do not cause unplanned disruption to operations. Any damage to public transport infrastructure must be rectified to the satisfaction of the Director of Public Transport at the full cost to the permit holder.
5. Prior to the commencement of the occupation of the residential part of the development a Green Travel Plan (GTP) must be prepared by a suitably qualified person to the satisfaction of the Director of Public Transport. The GTP must:
   1. Describe the location in the context of alternative modes of transport and objectives for the GTP.
   2. Outline GTP measures for the residential development including:

(ii) Possible incentives (i.e. provision of Met Cards within the rental / ownership of apartment etc);

1. Once approved the Green Travel Plan is to form part of the endorsed plans under the planning permit or any ongoing Management Plan for the site to ensure the plan continues to be implemented to the satisfaction of the Responsible Authority.

1. Prior to the issue of a Statement of Compliance, the Owner shall enter into and comply with an agreement with Melbourne Water Corporation for the acceptance of surface and storm water from the subject land directly or indirectly into Melbourne Water's drainage systems and waterways, the provision of drainage works and other matters in accordance with the statutory powers of Melbourne Water Corporation.
2. No polluted and / or sediment laden runoff is to be discharged directly or indirectly into Melbourne Water's drains or watercourses.
3. Prior to Certification, the Plan of Subdivision must be referred to Melbourne Water, in accordance with Section 8 of the Subdivision Act 1988.

1. The owner of the subject land must enter into an agreement with Yarra Valley Water for the provision of water supply.
2. The owner of the land must enter into an agreement with Yarra Valley Water for the provision of sewerage.

1. Prior to the commencement of the permitted development, the applicant must pay VicRoads the full cost for the following infrastructure safety improvements deemed necessary as a result of the proposed development:
   • (a) Extension of the 40kph strip shopping centre speed zone to Austin Street, in order to minimise the risk to shoppers and motorists on Whitehorse Road as a result of the crossover being in the "acceleration zone".

• (b) Conversion of the pedestrian signals outside the supermarket to a PUFFIN crossing.

2. Prior to the commencement of the permitted development, a functional layout plan must be submitted to VicRoads and the Responsible Authority for approval, generally in accordance with Drawing No. SK_04 Revision 3 Title: LG by Hayball Pty Ltd dated 20 December 2010, but modified to include infrastructure improvement works required under Condition 1 and to show the following:
   1. The proposed Whitehorse Road vehicular crossover to be a left in/left out and right out access, with the right out movement controlled with signal linking to the existing pedestrian operated signals to the east, and designed to relevant standards, guidelines and appropriate signage to the satisfaction of VicRoads.

2. Any other works associated with the upgrade of the access on Whitehorse Road requested by VicRoads and the Responsible Authority.

3. Subsequent to the approval of the detailed functional layout plan and prior to the commencement of any roadworks in Whitehorse Road, the applicant must prepare a Road Safety Audit that reviews the detailed construction plans. The Road Safety Audit must be prepared by an independent VicRoads pre-qualified road safety auditor and prepared in accordance with Austroads - Road Safety Audit Guidelines (2009). Any identified issues must be addressed to VicRoads' satisfaction.
4. All necessary approvals shall be obtained from the relevant authorities for the removal/relocation of infrastructure.
5. Redundant crossovers must be removed and the footpath, nature strip and kerbing reinstated to the satisfaction of the Responsible Authority.
6. Prior to the occupation or use of the permitted development, all works as required by VicRoads conditions must be completed to the satisfaction of, and at no cost to, VicRoads. This includes all road works, drainage, road safety devices, service relocations, signals, drainage works, pavement marking, signage, surveillance, and other associated works that may arise as a result of the proposed access to Whitehorse Road.

1. Prior to the commencement of the development, a Waste Management Plan must be submitted to the Responsible Authority for approval. Such Plan must provide details of a regular private garbage and recyclables collection service, including information regarding the type of refuse bin/s, type/size of trucks, means of accessing bins and frequency of refuse collection, to the satisfaction of the Responsible Authority. Once approved, such Plan must be implemented and complied with at all times to the satisfaction of the Responsible Authority.

1. Collection of waste must be conducted so as not to cause any disturbance to nearby residential properties and may only occur between the hours of 7:00am to 8:00pm Monday to Friday or 9:00am to 8:00pm on Saturdays, Sundays and public holidays to the satisfaction of the Responsible Authority.

1. Prior to the commencement of construction of the building hereby approved either:
   1. A certificate of environmental audit must be issued for the land in accordance with Part IXD of the Environment Protection Act 1970; or
   2. An environmental auditor appointed under the Environment Protection Act 1970 must make a statement in accordance with Part IXD of that Act that the environmental conditions of the land are suitable for a residential use.

2. Before the construction of the building hereby approved commences, a copy of the certificate of environmental audit and/or statement, and the complete audit report and audit area plan must be submitted to the Responsible Authority.
3. The development and use allowed by this permit must comply with the directions and conditions of any statement of environmental audit issued for the land.
4. Prior to the occupation of the dwellings, a letter must be submitted to the Responsible Authority by an Environmental Auditor accredited with the EPA, to advise that all construction and remediation works necessary and required by an environmental audit or statement have been carried out.
5. Any handling and disposal of contaminated site soil must be in accordance with the requirements of any statement of environmental audit issued for the land, the requirements of the Environment Protection Authority and the Environment Protection Act 1970.

1. Before a building permit is issued, an Environmentally Sustainable Design Report which is to the satisfaction of the Responsible Authority must be prepared by a suitably qualified expert and submitted to the Responsible Authority. The report must address the ESD principles proposed for the site including but not limited to, energy efficiency, water, waste and building materials. Once approved, the report will be endorsed to form part of the permit.

1. All signs, mirrors and line marking must be maintained in good order and appearance to the satisfaction of the Responsible Authority.

1. All loading and unloading of vehicles for the retail premises must be carried out within the boundaries of the land and must be conducted in a manner which does not cause any interference with the circulation and parking of vehicles on the land, to the satisfaction of the Responsible Authority.

1. Delivery vehicles must not exceed 12.5m in length.
2. Loading and unloading of vehicles for the supermarket is only permitted to occur at the following times:

Monday to Friday (except public holidays): 7:00am to 8:00pm

Saturdays, Sundays & Public Holidays: 9:00am to 8:00pm

Construction and use of car parking spaces and access ways

1. The areas set aside for parking of vehicles, together with the associated access lanes as delineated on the endorsed plans must:
   • (a) Be provided and completed to the satisfaction of the Responsible Authority prior to the commencement of the use hereby permitted;
   • (b) Thereafter maintained to the satisfaction of the Responsible Authority;
   • (c) Be made available for such use at all times and not used for any other purpose;
   • (d) Be properly formed and lit to such levels that it can be used in accordance with the endorsed plans; and
   • (e) Be drained and sealed with an all weather seal coat.

2. All new vehicular crossings must be constructed in accordance with Council's standard vehicular crossing specification.

1. Alarms associated with the commercial premises must be directly connected to a security service and must not produce noise beyond the premises.

1. All outdoor lighting must be designed, baffled and located to prevent light from the site causing any detriment to the locality, to the satisfaction of the Responsible Authority.

1. The amenity of the area must not be detrimentally affected by the use or development, through:
   • (a) The transport of materials, goods or commodities to or from the land;
   • (b) The appearance of any buildings, works or materials;
   • (c) The emission of noise, artificial light, vibration, smell, fumes, smoke, vapour, steam, soot, ash, dust, waste water, waste products, grit or oil; or
   • (d) The presence of vermin.

1. All pipes (except down-pipes) fixtures, fittings and vents servicing any building on the site must be concealed in service ducts or otherwise hidden from external view to the satisfaction of the Responsible Authority.

1. Provision must be made of the site for letter boxes and receptacles for papers to the satisfaction of the Responsible Authority.

1. Noise from the premises must not exceed limits prescribed by the State Environment Protection Policy (Control of Noise from Commerce, Industry and Trade) No. N-1, to the satisfaction of the Responsible Authority.
2. Noise from the premises must not exceed limits prescribed under State Environment Protection Policy (Control of Music Noise from Public Premises) N-2, to the satisfaction of the Responsible Authority.

1. Prior to the commencement of any site works whatsoever (including demolition and excavation), the applicant must submit a Construction Management Plan to the Responsible Authority for approval. No works (including demolition and excavation) are permitted to occur until the Plan has been approved in writing by the Responsible Authority. Once approved, the Construction Management Plan will be endorsed to form part of this permit and must be implemented to the satisfaction of the Responsible Authority. The Plan must be to the satisfaction of the Responsible Authority and must provide detail of the following:
   • (a) that all vehicles involved in construction of the development must access and egress Jersey Street and Whitehorse Road via Whitehorse Road only;
   • (b) Hours for construction activity in accordance with any other condition of this permit;
   • (c) Measures to control noise, dust, water and sediment laden runoff;
   • (d) The location and design of a vehicle wash down bay for construction vehicles on the site;
   • (e) The location of parking areas for construction and sub-contractors' vehicles on the site, to ensure that vehicles associated with construction activity cause minimum disruption to surrounding premises and traffic flows. Any car park on the land must be made available for use by sub-constructors/tradespersons upon completion of such areas, without delay;
   • (f) Measures to ensure that sub-contractors/tradespersons operating on the site are aware of the contents of the Construction Management Plan;
   • (g) Contact details of key construction site staff;
   • (h) The location of any site sheds and the like;
   • (i) Hotline telephone contact details for the Construction Manager;
   • (j) Measures to minimise road closures;
   • (k) Advance notice to be given of road closures to nearby properties;
   • (l) Measures to minimise Jersey Street usage by large construction vehicles where possible and to avoid parking of construction and sub-contractors' vehicles in the residential hinterland behind the title boundary of 19-23 Jersey Street;
   • (m) Any other matters, including the requirements of VicRoads and Yarra Trams or their successors.

1. All works including earthworks, demolition and construction activity associated with the approved development is to be limited to the following hours, unless with the prior written consent of the Responsible Authority:

1. During the construction phase of the development, the following conditions must be met:
   • (a) Only clean rainwater may be discharged to the stormwater drainage system;
   • (b) Stormwater drainage system protection measures must be installed as required to ensure that no solid waste, sediment, sand, soil, clay or stones from the premises enters the stormwater drainage system;
   • (c) Vehicle borne material from the premises must not accumulate on the roads abutting the site;
   • (d) All machinery and equipment must be cleaned (if required) on site and not on adjacent footpaths or roads;
   • (e) All litter (including items such as concrete bags, food packaging and plastic strapping) must be disposed of responsibly; and
   • (f) All site operations must comply with the Environment Protection (Residential Noise) Regulations 1997.

Reticulated electricity to be provided underground

1. Reticulated electricity must be provided underground to the subject land and all buildings on the land, to the satisfaction of the Responsible Authority.

1. Any vehicles accessing the site via Jersey Street must enter and exit the site in a forward direction.

1. The walls on the boundary of adjoining properties must be cleaned and finished in a manner to the satisfaction of the Responsible Authority.

Future allocation of bicycle parking facilities

1. Any future subdivision of the land must ensure that the bicycle parking facilities for residential visitors, retail staff and retail visitors to the building are located within common property.

1. Any future subdivision of the land must ensure that the car parking spaces for residential visitors are located within common property.

(a) The development does not start within two (2) years from the date of this Permit; or

(b) The development is not completed within four (4) years of the date of this Permit; or

(c) The use does not start within two (2) years of the date of completion of the development.

The Responsible Authority may extend the time referred to if a request is made in writing before this Permit expires or within three (3) months after the expiry date.

[1] In accordance with Section 4 (2) (d) of the Victorian Civil and Administrative Tribunal Act 1998 a failure to make a decision is deemed to be a decision to refuse the application.

[2] Silverton Group Pty Ltd v Boroondara CC [2009] VCAT 791 (30 April 2009), Byard SM & Bensz M.

[3]2,727.9m2 now proposed instead of 2,500m2.

[4] Silverton Group Pty Ltd v Boroondara CC & Ors [2010] VCAT 1889.

[5] Silverton Group Pty Ltd v Boroondara CC & Ors [2010] VCAT 1889.

[8] Silverton Group Pty Ltd v Boroondara CC [2009] VCAT 791