1. As a result, this present proceeding, which was waiting the outcome of the earlier section 184 application, has been resurrected. A fresh application has been lodged under section 184, which is, in turn, waiting the outcome of the current proceeding.

1. There are two key issues we must determine. They relate to:
   • The planning merits of the proposal.
   • The weight that should be placed on the existence of the section 173 agreement in deciding whether the permit should be granted.
2. The council says that the proposal should be rejected on planning merits. The first three of its grounds of refusal are that:
   1. Inadequate off-street parking has been provided.
   2. The scale and built form will have a detrimental impact on the amenity of the area.
   3. The location and use of the loading dock facilities will have a detrimental impact on the amenity of Fairholm Grove and nearby residential properties.
3. The council also says the existence of the agreement should lead us to refuse to grant the permit. Its fourth ground for refusal is:
   1. The proposal fails to comply with the requirements of the Section 173 Agreement which applies to the site.
4. For reasons that we will set out in detail later, we have decided that on planning merits, a permit should be granted. The critical issue is to determine how the section 173 agreement should affect our decision. We will deal with this issue now.

THE SECTION 173 AGREEMENT

What does the section 173 agreement provide for?

1. The section 173 agreement was entered on 5 March 1995 and is registered on the title to the subject land. A detailed history of the agreement and events leading to its execution is set out in Deputy President McNamara's decision.[3] In essence, the agreement was part of the settlement of a bitter, protracted, legal and planning dispute about development at Camberwell Junction during the 1980's and early 1990's. It enabled development of the existing supermarket and discount department store on the subject land and otherwise limits its use and development.
2. It is not necessary to set out in detail all the contents of the agreement. It was common ground between the council and applicant that the only ongoing obligation of relevance under the agreement is clause 7.7. Clause 7.7 is a covenant of the owner that it will -

7.7 not develop and/or use the Subject Land at any time for any purpose other than as a supermarket with a maximum of 4,740 square metres Gross Lettable Floor Area and a discount department store with a maximum of 7,250 square metres Gross Lettable Floor Area:

1. The council conceded that the obligation in clause 7.1 to commence construction of stage one of the development in accordance with the Development Design Requirements set out in schedule one of the agreement has been complied with and this obligation has been discharged. The obligation to complete construction in clause 7.2 has also been discharged. The council conceded that there was no ongoing obligation to maintain the building in accordance with the Development Design Requirements in schedule one in terms of height, loading bay, carparking or otherwise. There is nothing in the agreement to prevent a future application for planning permit not in accordance with the Development Design Requirements of schedule one. The only ongoing obligation is under clause 7.7.

1. It is common ground that the proposal, if built, would breach clause 7.7. However, we do not consider that the grant of a permit for the proposal would, in itself, be a breach of the agreement. It is only if the permit is acted upon that a breach of the agreement will occur. We therefore reject the contention that the permit should be refused on the basis that it (the permit) will be in breach of the agreement.

1. Section 60(1A)(i) of the Act requires that any agreement made pursuant to section 173 affecting the land the subject of the application should be considered before deciding on an application. It is also something the Tribunal must have regard to under section 84B(2)(h). The question is what weight should be placed on the agreement when it is considered.
2. Nothing in the Planning and Environment Act 1987 specifically directs that section 173 agreements should be attributed great weight necessarily. There is nothing in the Act to attribute any specific weight to them. However, some Tribunal decisions have said that we must automatically give agreements great weight. In our view, this misreads the Act. Weight is something to be determined by the circumstances of the case: it is not something that is predetermined.
3. The council referred us to various cases where the Tribunal has emphasised the special nature of section 173 agreements as being part of the suite of complementary planning controls and tools under the Planning and Environment Act 1987 that are available to regulate the use and development of land, or to otherwise achieve a planning objective.[4]
4. The role of section 173 agreements and their place in Victoria's planning system are not in dispute. We agree with the comments of Deputy President Dwyer in New Dimension Homes Victoria Pty Ltd v Frankston CC[5] where he said:

[19] As I indicated in John Pernal Pty Ltd v Mornington Peninsula Shire Council, the test for the removal of a section 173 agreement (and the jurisdiction of this Tribunal under s 184 of the Planning and Environment Act 1987) is more limited than a simple planning "merits" review. The very character of a section 173 agreement is its ability to be registered on the title to land over an extended period as an effective covenant to bind future successors in title to its obligations, and to achieve more broadly based planning objectives. In order to remove land from the operation of a section 173 agreement, in the absence of the consent of all parties to the agreement, an applicant must demonstrate more than a change of planning circumstances as might justify an amendment to a planning permit or a case for rezoning of land.

1. This means that when an application is made to amend an agreement under section 184(3) of the Act to remove land from the agreement, the Tribunal needs to be particularly careful before approving the amendment not to undermine the important public character of a section 173 agreement as being a long term planning instrument in relation to the use or development of land, or the achievement of a broader planning outcome specified in the agreement.[6] However, a distinction can be drawn between applications to amend agreements to remove land from their effect and granting permits for land that is subject to an agreement.
2. When granting a permit, the requirement under the Act is to have regard to any section 173 agreement. There is no obligation to refuse to grant the permit if the use or development would contravene an agreement in the same way as there is a requirement to refuse to grant a permit if the use or development would contravene a registered restrictive covenant.[7]
3. Nevertheless, some Tribunal decisions appear to suggest that neither a responsible authority nor the Tribunal should direct the issue of a permit where it is contrary to a section 173 agreement affecting the subject land and that to do so is a material mistake of law.[8] With respect, this proposition is wrong. The existence of a section 173 agreement is not determinative.
4. Equally, we consider it would be wrong to say that the existence of a section 173 agreement, which would be breached by a use or development under a permit, automatically requires a very cautious approach to be taken unless there is a strong argument that the circumstances make the agreement redundant.[9]
5. In our view, the correct approach is that the weight to be place on any section 173 agreement will depend on the facts and circumstances of each case when deciding whether to grant a permit for a proposal that would contravene the agreement. The nature of the agreement and the obligations it imposes, when the agreement was entered, the planning objective which the agreement seeks to implement, or whether the agreement is redundant are simply some of the matters that may be relevant when having regard to any agreement. It is not possible to be definitive about the sorts of matters that may be relevant anymore than it is possible to say that the mere existence of an agreement is determinative. The existence of an agreement is but one fact among many that must be considered under section 60 by the responsible authority and under section 84B by the Tribunal.

Should the agreement preclude the grant of a permit?

1. Despite strong argument by the council to the contrary, in the present case we are not persuaded that the existence of the section 173 agreement is a sufficient reason to refuse to grant a permit. Our conclusion is based on the following factors.
2. There was a clear intention when the Sixty-Fifth Eternity Pty Ltd appeal in the Supreme Court was adjourned to enable this permit application to be determined on its planning merits and, if a permit is granted, that this permit be the basis for enlivening a fresh application under section 184(3) to amend the agreement. This would then enable arguments about whether it is inappropriate for the agreement to continue to apply to the land to be considered on their merits. It would defeat this intention if the opportunity was to be cut off by refusing to grant the permit on the basis of the agreement. This would represent a 'Catch 22' situation.
3. The agreement was entered in 1995 to resolve a particular legal and planning dispute. It was acknowledged by the council and Mr Hobson at the hearing that it is not likely that an agreement of this nature would be entered today. There would probably be something quite different. Thus, it could be said that the agreement is a product of its time.
4. It is not appropriate in the context of this proceeding to speculate about whether that means the agreement is redundant or for some other reason it is inappropriate that the agreement should continue to apply to the land and the owner. This is a determination that must be made under section 184(4) of the Act in the context of an application under section 184(3).
5. However, before making any application under section 184(3), there is a prerequisite that the parties to the agreement cannot agree that the agreement should be amended. The council has indicated that it would not agree, but we consider that if a permit is granted, the council should have an opportunity to further consider its position.
6. The planning officer's report in respect of this permit application took the view that the planning merits of the proposal were acceptable and should be supported and that a new agreement should be required, which would remove council's obligations about the substation and lock in the new use and development parameters of the proposal. In addition, we note that council may now consider it would be appropriate to otherwise amend the agreement to delete those obligations that have been discharged, which appear to comprise the bulk of the agreement.
7. Only the council could agree to amend the agreement in this way under section 178. The Tribunal's power to amend an agreement under section 184(3) is limited to removing land from the application of the agreement. The Tribunal has no power, for example, to amend the agreement by deleting or modifying conditions in the agreement. If the council and the applicant cannot agree to amend the agreement under section 178 or end it under section 177, then the application, which the applicant has already made under section 184(3)[10], provides an opportunity to address whether it is inappropriate that the agreement should continue to apply to this land.
8. The grant of a permit does not mean that the application under section 184(3) is a fait accompli, as submitted by the council. The outcome is not certain because different considerations will apply to an application to amend the agreement to those that apply in considering whether to grant a permit. Examples of the types of considerations that may be relevant were considered by the Tribunal in the recent case of Sheradar Pty Ltd v Casey CC[11]. On this point the Tribunal said:

[69] There is no definitive test to determine when it will be inappropriate that an agreement should continue to apply to land. Clearly though, from the words of section 184(4)(b), the Tribunal must have regard to any relevant permit. In this context, I consider it will also be relevant to have regard to the following factors:

• When the permit was granted.
• What consideration the responsible authority (under section 60(1A)(i)) and the Tribunal (under section 84B(2)(h)) gave to the agreement when deciding to grant the permit.
• How does the permit affect obligations under the agreement or vice versa?

[70] Looking beyond any relevant permit, it is relevant to consider:

• The age of the agreement and the context and circumstances surrounding the entry of the agreement.
• What were the original intent and obligations of the agreement?
• Whether circumstances have changed since the agreement was entered.
• Has the land and the owner had benefit from the agreement or do they continue to enjoy benefit from the agreement?
• What is the relationship between the benefits to the land and the owner of the agreement and any ongoing responsibilities or obligations under the agreement?
• What benefit would there be in maintaining the agreement?
• Should the land and/or the owner continue to accept the obligations under the agreement?

1. We disagree with the proposition put by the council that if we grant a permit, then it must be a very relevant factor in considering an application under section 184(3). In such circumstances, the council said, it becomes very difficult, having granted a permit for a proposal that would be contrary to the section 173 agreement, to then conclude that it would not be inappropriate to remove the land from the agreement. The council further submitted that if an agreement is redundant or superseded then it may be appropriate to grant a permit and the likelihood is that a section 184(3) application would succeed. But if the agreement is not redundant and is not superseded then it is not appropriate to grant the permit.
2. We consider that the question of whether the agreement is redundant or superseded is best left to consideration in the context of an application to amend the agreement under section 184(3). If a permit is granted for the land, it will clearly be a relevant permit, but it will not be determinative. We consider that it is appropriate for there to be a two-step process. We do not consider that the grant of a permit will necessarily lead to a conclusion that it is inappropriate that the agreement should continue to apply to the land of the owner as the council fears. As the Tribunal said in Sheradar Pty Ltd v Casey CC:

[153] Even though the Tribunal determined to grant a permit, which the Council continues to consider is contrary to the section 173 agreement, this does not mean that the Tribunal decision is determinative of whether or not the section 173 agreement should be ended or amended, or whether the Council is obliged to agree to end or amend the agreement. In the planning permit proceeding, the Tribunal did not have the power to direct the removal of the agreement or to require the Council to end or amend the agreement. The requirement in the Act to have regard to the agreement means that it was open to the Tribunal to decide not to grant the permit because of the existence of the agreement, although it was not bound to do so. Equally, it was open to the Tribunal to grant a permit, which it did in the present case, but to determine that the permit would not come into effect until the agreement was removed. This left the merits of removing the agreement to be resolved by a separate process, either by agreement under sections 177 or 178 of the Act, or by an application under section 184. When the parties cannot agree to end or amend an agreement under sections 177 or 178, there is a limited opportunity to apply to amend the agreement under section 184(3). In the present case, such an application has been made and has been successful. This does not mean however, that the Council's refusal to agree to end or amend the agreement was improper.

1. For these reasons, we have therefore reached the conclusion that notwithstanding the existence of the section 173 agreement, a permit should still be granted for this proposal. However, we consider that a condition should be included in the permit that the permit will not come into force or effect until the section 173 agreement is removed from the land or amended so that there is no conflict between what the permit allows and the agreement.
2. Such a condition accords with principles of orderly and proper planning to ensure that permits are not granted, or at least do not come into effect, until any agreement, which might conflict with what the permit allows, is amended or removed from the land. It safeguards the integrity of the agreement until the fate of the agreement is determined, either by agreement between the applicant and the council or by means of the section 184(3) proceeding. It also means that in the event there is no change to the agreement, then the permit will not come into operation. It ensures that the fate of the agreement must be determined before the proposal can proceed.

1. Putting aside the issue of the section 173 agreement and its relevance to the consideration of the merits of the application, the council and the objectors are opposed to the grant of a permit because of concerns they have with quite specific, detailed aspects of the proposal.
2. The council is concerned that inadequate off street car parking is provided. The council also submits that the building's scale and form will have a detrimental affect on the amenity of the area, while the operation of the loading bay will have an adverse affect on the operation, safety and amenity of Fairholm Grove.
3. The objectors generally support the council's submissions on these points. Mrs Rogers, who appeared for the Camberwell Community Centre, expresses specific concerns about the operation of the loading bay, and its impact on the safety of users of the community centre, the amenity and operational features of the centre[12].
4. Prior to undertaking an assessment of the issues raised against this proposal, it is important to emphasise that the consideration of these issues needs to be undertaken within the context of the following planning scheme provisions and policies applying to this site and locality:
   • The site is zoned Business 1 under the Boroondara Planning Scheme. The purpose of the zone is to implement State and local planning policy and to encourage the intensive development of business centres for retailing and other complementary commercial, entertainment and community uses.
   • A permit is not required in the Business 1 zone to use land for a shop. There is no limitation on the floor space for a shop specified in the schedule to the zone.
   • The site forms part of a principal activity centre under the State Planning Policy Framework. These centres are encouraged to continue to act as the focus for business, increased investment and major growth[13].
   • Local planning policy acknowledges the significance of the Camberwell Junction Shopping Centre, encourages new developments that complement, and consolidates the centre's retail role[14]. The site forms part of the centre's retail core as evidenced by its Business 1 zoning and confirmed by the council's 1993 and 2008 Structure Plans.
5. These matters are not in dispute. Neither the council nor the objectors presented any submissions that have persuaded us that the development of this site and its use for retail purposes is not supported by the planning scheme.

1. With respect to the provision of car parking, the council submits that the provision of 34 spaces for the additional 2218 m2 retail floor space represents a significant undersupply. In support of this submission, the council relies on:
   • the parking rates included in the table to clause 52.06 of the planning scheme which require parking to be provided at a rate of 8 spaces per 100 m2 (177 spaces) unless varied by the grant of a planning permit; and
   • the council's local policy at clause 22.03 which would require a provision of 89 spaces[15].
2. The council does not agree with the expert evidence led by the applicant that a credit of 16 spaces (being the surplus spaces over and above that required by the Section 173 agreement for the existing development) can be attached to this proposal. The council submits that the calculation of the parking requirement should be based on the additional floor space proposed rather than on the total of the existing and the additional floor space. The council regards the local policy as the most reliable measure of parking provision given that it reflects localised circumstances and the achievement of local objectives.
3. The council and the objectors submit that an under-provision of parking will have the dual impact of prejudicing the viability and functioning of the Camberwell Junction centre, as well as contributing to overflow parking in surrounding residential streets, adversely affecting the amenity of those streets.
4. There are a number of alternative methods available for the calculation of car parking requirements. The council relies on its local policy and to a lesser extent clause 52.06 of the planning scheme, both of which specify different parking rates. The section 173 agreement imposes a different parking rate again. Mr Walsh in his evidence referred to and relied on a parking rate of 3.5 spaces per 100 m2 leasable floor area recommended by an Advisory Committee appointed by the Minister for Planning in 2007 to review planning scheme parking requirements[16]. The Government has not enacted the recommendations of the Advisory Committee. Notwithstanding this, Mr Walsh calculated that the proposed development would generate a demand for 78 spaces based on the recommended Advisory Committee rate. There is therefore a shortfall of 28 spaces assuming the credit of 16 spaces from the existing development is included. Mr Walsh calculated that the existing and proposed development on the land will be serviced by 883 parking spaces at a rate of 5.93 spaces per 100 m2.
5. Mr Walsh undertook an empirical assessment of the existing supply of parking within the centre, and of the utilisation of that parking, in order to determine whether the shortfall of parking spaces could be accommodated within with the existing supply of publicly available parking in the centre. Based on that empirical assessment, he concluded that surplus capacity exists within the centre as a whole and that, even at peak times, the shortfall of parking associated with this proposal will be comfortably accommodated.
6. Mr Walsh's evidence was not disputed by contrary expert evidence. We also note that council's officers assessment of the application led them to conclude that they were satisfied with the quantum of car parking proposed[17].
7. We acknowledge that there is a legitimate disagreement between the council and the applicant about which parking rate is most appropriate and how the parking requirement should be calculated. In this case, the difference between the applicant and the council is not of such significance as to warrant the provision of additional parking, even if we were to agree with the council's approach. In the context of a principal activity centre location, well served by public transport, the provision of parking should at least in part reflect broad planning policy objectives that discourage excessive use of private vehicles and provide encouragement for the use of public transport, walk and cycle travel modes. We are satisfied that adequate car parking is available to meet the demand generated by the additional retail floor space associated with this proposal. We are also satisfied that the proposed provision of parking will make a reasonable contribution to the publicly available parking in this centre.
8. Concerns were also expressed about the loss of the most conveniently accessible parking spaces and their replacement with less convenient parking. We do not share those concerns. The location, design and configuration of the car park are acceptable.

1. A loading area is proposed to be located on the eastern side of the building, accessed off Fairholm Grove. The facilities comply with the requirements of Clause 52.07 of the planning scheme in terms of its area and configuration.
2. The loading area has been designed to accommodate a heavy rigid vehicle (12.5 m)[18] which will be required to reverse into the loading area from Fairholm Grove.
3. The council and the objectors expressed concerns about the disruption to traffic flow, and decreased traffic and pedestrian safety associated with the use of the loading area. Adverse amenity impacts associated with the use of reverse beepers on trucks was also identified.
4. The access to the proposed loading facilities is not an optimal outcome for this site, but we are satisfied that it is acceptable. We have reached this conclusion because the adverse impacts of the reverse manoeuvre for delivery vehicles are capable of being minimised through the application of management procedures which regulate the use of the loading area. Permit conditions we have imposed limit the hours during which deliveries can be made, and the size of the delivery vehicles.
5. In terms of assessing the amenity impacts associated with the loading bay, its is significant that there are no residential uses located directly opposite the loading bay on the eastern side of Fairholm Grove.
6. While the frequency of deliveries is dependant upon the needs of the ultimate end user, it was Mr Walsh's evidence that this is unlikely to exceed 10 per day, and is more likely to be about 3 to 4 per day. This frequency of delivery will not cause unreasonable disruption to traffic flows in Fairholm Grove.
7. The provision of the loading bay in Fairholm Grove will necessitate the removal or at least the realignment of road line markings in Fairholm Grove. Camberwell Community Centre Inc is concerned that this will be detrimental to pedestrian movements across Fairholm Grove because the existing markings provide a pedestrian refuge in the centre of the road. The issue of line marking in Fairholm Grove will need to be revisited by the Council as part of its ongoing traffic management responsibility for the centre. Provision for pedestrian access across Fairholm Grove is most appropriately considered at that time. Of itself, it is not a reason for refusing to grant a permit.

1. That part of the site that is proposed to be developed constitutes the southern end of a site comprising a supermarket and discount department store and associated car parking. The site slopes from the north to the south and there is undercroft parking, partly exposed to the public domain at the southern end of the existing development. A series of ramps provide pedestrian access from Station Street to the elevated shops. The southern end of the site contains car parking at ground level with one upper level deck.
2. The council and objectors submit that the existing condition of the site contributes to a sense of "openness" to the centre and that the gap left at the southern end of the site allows for views into and from the residential area beyond, to the east. It is their submission that closing this gap by the construction of the proposed building adversely affects the amenity of the residential area, and deprives the centre of one of its valued features. They submit that there is at best limited support in the council's structure plans and the planning scheme generally for this part of the site to be developed.
3. We disagree that there is little policy support for this site to be developed to a scale and in a manner proposed in this application. We have outlined previously the zoning and policy provisions of the planning scheme that must form the basis of any assessment of this proposal's built form characteristics. We agree with the evidence of both Mr Sheppard and Mr Biasci that the existing condition of the site represents an underutilisation of a significant site in the retail core of a principal activity centre.
4. We also agree with Mr Sheppard's evidence that in its existing condition the site detracts from the safety, attractiveness and social experience of this centre.
5. We acknowledge that the two structure plans for the activity centre provide little specific guidance for the future development of this site. Both structure plans however include the site within the centre's retail core, and the 2008 plan identifies preferred outcomes for the façade design of any future development of the southern end of the site. These outcomes refer to an active ground floor frontage to Station Street, an attractive frontage with an articulated façade along the access road and Fairholm Grove, and a 3m landscape setback to Fairholm Grove.
6. The proposed development achieves an appropriate built form response to both its physical and strategic context. The height of the building is at least consistent with that of the existing buildings on the site and in the site's immediate environs. The "Buildings Plan" in the 2008 Structure Plan identifies a 3 storey (11 m) and a 2 storey (9 m) height limit for buildings to the north, east and south of the review site. The proposed building height ranges from 8 m at the northern interface with the existing Safeway and Target building, to 9.7 m at the southern interface with the access road.
7. We agree with Mr Sheppard that the proposed building "sits comfortably within the range of existing building heights in the vicinity of the site".
8. Mr Sheppard provided a detailed description of the proposed building's setbacks, articulation, its activation of the access road frontage and opportunities for the planting of mature trees along that frontage. Further landscaping along the Fairholm Grove frontage is also proposed. We agree with Mr Sheppard's positive assessment of the proposed building's contribution to the amenity and functioning of this centre.
9. With respect to submissions that the proposed building would adversely affect the amenity of the residential area to the east, it is significant that, as we have stated above, the eastern side of Fairholm Grove opposite the review site is occupied by non residential uses (including the Camberwell Community Centre and to the south, an at grade car park). Residential uses commence to the north of the community centre.
10. Having regard to the existing condition of the site, the nature of the uses on the eastern side of Fairholm Grove, the zoning of the land and its location within a principal activity centre, we are satisfied that from a built form perspective, there are no unacceptable amenity impacts on the residential area to the east.

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 issued.
2. At the conclusion of the hearing, we provided the council with the opportunity to circulate amended draft permit conditions. The other parties were provided with the opportunity to comment on these conditions. We have received submissions from the permit applicant, the Boroondara Residents Action Group, and Paul Hobson.
3. In deciding the conditions to be included on the permit we have had regard to the "without prejudice" conditions provided to the Tribunal by the council and the submissions and evidence of the parties in addition to the matters which arise from our reasons.
4. We have included two alternatives in the condition relating to removal of the land from the section 173 agreement in line with our reasons. In addition, we have included a provision to require that the permit for the existing development on the land[19] is amended (or cancelled) so that there is no conflict between that permit and this. A further condition has been included to require a new agreement, in the event that the council does not agree to amend the existing section 173 agreement without recourse to the Tribunal pursuant to the section 184(3) application, to limit the use or development of the land to that allowed by this permit. This is intended to avoid the opportunity from arising whereby the applicant succeeds in amending the existing agreement to remove the permit land from the application of the agreement, and then applies for a further permit for a more intensive development.

• Construction of a building and construction and carrying out of works.
• Reduction in the provision of car parking spaces
• Display of advertising

1. Before the development starts, amended plans must be submitted to and endorsed by the Responsible Authority. The plans must be drawn to scale with dimensions and three (3) copies provided. When the plans are endorsed they will then form part of the permit. The plans must be substantially in accordance with the plans marked SK2IA, SK14G, SKI6H, SK17C, SKI8G, SKI9F prepared by Flint Architects, but modified to show:

1. modification of the rooftop car parking in accordance with Annexure 3 to the witness statement for Mr Jason Walsh dated 17 May 2011; 2. all car parking spaces abutting a solid wall to be a minimum of 2.9 metres in width or marked as "small cars only";

1. provision of a bus shelter in Station Street to the satisfaction of the responsible authority;

1. any changes required by the Waste Management Plan in accordance with this permit; 2. any changes required by the Landscape Plan in accordance with this permit; 3. a schedule of materials, finishes and colours (materials used for the roof shall be non-reflective); 4. the location of any external plant and equipment and any screening of such equipment.

1. The layout of the site and the size, levels, design and location of buildings and works shown on the endorsed plans must not be modified for any reason without the prior written consent of the Responsible Authority.

1. The amenity of the area must not be adversely affected by the use or development as a result of:

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

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

1. All roadworks in Fairholm Grove must be at the cost of the owner and to the satisfaction of the Responsible Authority.

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. All security alarms or similar devices installed on the land must be of a silent type in accordance with any current standards published by Standards Australia International Ltd and must be connected to a registered security service.

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.

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. No plant, equipment, services or architectural features other than those shown on the endorsed plan are permitted above the roof level of the building/s without the prior written consent of the Responsible Authority.

1. Other than those shown on the endorsed plan, no air-conditioning or cooling units, condensers and the like are to be located on roofs, external walls or on walkways without the prior written consent of the Responsible Authority.

1. All bins and receptacles used for the collection and storage of solid waste, recyclables and other wastes must be kept in a designated area, to the satisfaction of the Responsible Authority. This storage area must be:

1. Properly paved and drained to a legal point of discharge; 2. Screened from view with a suitably designed enclosure;

1. Maintained in a clean and tidy condition free from offensive odours

1. Delivery of goods and collection of waste must be conducted so as not to cause any unreasonable disturbance to nearby residential properties and may only take place during the following times:
   • Monday to Friday: 7:00am to 3:00pm
   • Saturday & Public Holidays: 9:00am to 3:00pm
   • Sunday: No collection allowed
2. Delivery and Waste Collection vehicles with a length greater than 12.5m must not service the site.
3. Delivery and waste collection vehicles shall only reverse into the loading bay and must not reverse out of the site.
4. No delivery or waste collection vehicle shall be parked in Fairholm Grove for any period longer than 5 minutes while under the management instruction, or control of the occupiers or owners of the site and such vehicle shall not be left idling.
5. No trucks delivering goods or collecting waste are to enter or exit Fairholm Grove via the section of Prospect Hill Road east of Fairholm Grove.

1. A waste management plan must be prepared to the satisfaction of the Responsible Authority. Once endorsed, such plan of and endorsement by must be implemented to the satisfaction of the Responsible Authority. The plan must provide the following details of a regular private waste (including recyclables) collection service for the subject land including:

1. the type/s and number of waste bins; 2. screening of bins;

1. frequency of waste collection; 2. delivery of bins to waste collection points and retrieval of bins once collected

1. Prior to the commencement of any site works a construction management plan must be submitted to and endorsed by the Responsible Authority. No works are permitted to occur until the Plan has been endorsed by the Responsible Authority. Once endorsed, the construction management plan will form part of the permit and must be implemented to the satisfaction of the Responsible Authority. The plan must provide details of the following:

1. Hours for construction activity in accordance with any other condition of this permit; 2. Measures to control noise, dust, water and sediment laden runoff;

1. The location and design of a vehicle washdown bay for construction vehicles on the site;

1. 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 basement carpark on the land must be made available for use by subconstructors/tradespersons upon completion of such areas, without delay; 2. Measures to ensure that sub-contractors/tradespersons operating on the site are aware of the contents of the construction management plan; 3. Contact details of key construction site staff; 4. The location of any site sheds and the like; and 5. Any other relevant matters.

1. All works including earthworks, demolition and construction activity associated with the approved development must take place only during the following hours, except with the prior written consent of the Responsible Authority:
   • Monday to Friday: 7:00am to 5:00pm
   • Saturday: 9:00am to 5:00pm
   • Sunday & Public Holidays: No construction

1. Before the use starts or any building is occupied, the area/s set aside for car parking, access lanes and driveways shown on the endorsed plans must be:

1. Constructed; 2. Formed to such levels and properly drained so that they can be used in accordance with the endorsed plans;

1. Line marked to indicate each car space; 2. Clearly marked to show the direction of traffic along the access lanes and driveways; and 3. Drained 4. Monitored by camera surveillance 24 hours per day

1. a Car spaces, access lanes and driveways shown on the endorsed plan must not be used for any other purpose, to the satisfaction of the Responsible Authority.
   1. Except with the express written consent of the responsible authority, no fees shall be charged for use of the carparking by members of the public.

1. Staff car parking associated with the retail use must be made available on the rooftop to the satisfaction of the Responsible Authority.

1. A landscape plan must be submitted to and endorsed by the Responsible Authority. The plan must be drawn to scale with dimensions and three (3) copies provided. When endorsed, the plan will form part of the permit.

1. A survey (including botanical names) of all existing trees to be retained and of those to be removed. The intended status of the trees shown on the landscape plan must be consistent with that depicted on the development layout plan;
2. Details of the surface finish of all pathways, paved areas and accessways;

1. A planting schedule of all proposed trees, shrubs and ground covers including botanical names, common names, pot sizes, sizes at maturity and the quantities of each plant;

1. Planting required by any other condition of this permit; and
2. Landscaping and planting within all open areas of the site.

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

1. All landscaping works shown on the endorsed landscape plan/s must be maintained and any dead, diseased or damaged plants replaced, all to the satisfaction of the Responsible Authority.

1. The land must be drained to the satisfaction of the Responsible Authority and all drainage works must be completed prior to the occupation of the building.

1. Any new vehicle crossover or modification to an existing vehicle crossover, must be constructed in accordance with council's standard details. No such works are permitted to commence unless a Supervision Permit is first obtained from the Responsible Authority.

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. The location, layout, dimensions, structures and features of the approved sign(s) (including the design, colours, materials, degree of illumination, wording and sign type) shown on the endorsed plans must not be altered without the prior written consent of the Responsible Authority.

1. All signs must be constructed and maintained to the satisfaction of the Responsible Authority.

1. No flashing, intermittent or changing colour light is permitted to be displayed, except with the prior written consent of the Responsible Authority.

1. External sign lighting must be designed, baffled and located to the satisfaction of the Responsible Authority to prevent any adverse impact on adjoining land.

1. The intensity of lighting associated with the illumination of the advertising sign(s) must be limited so as not to cause glare or be a distraction to motorists in adjoining streets or cause a loss of amenity in the surrounding area to the satisfaction of the Responsible Authority.

1. Public access to the pedestrian ramps, open plaza and carpark areas is to made available 24 hours a day except with the written consent of the Responsible Authority.

Conditions relating to section 173 agreement and planning permit B0R9941

1. This permit will not come into force or effect until either**:**

1. the section 173 agreement entered into on 5 March 1995 ("the existing 173 Agreement") between the Responsible Authority and Fabcot Pty Ltd and recorded against the title to the subject land is amended to remove that part of the subject land to which this permit applies ("the permit land") from the continued operation of the existing 173 Agreement; 2. the owner enters into a new section 173 agreement with the Responsible Authority with respect to the permit land which prohibits any use or development of the permit land otherwise than in accordance with this permit; and

1. planning permit B0R9941 is amended, or alternatively cancelled, so that it does not apply to the permit land.

1. the section 173 agreement entered into on 5 March 1995 between the Responsible Authority and Fabcot Pty Ltd and recorded against the title to the subject land is amended so that the use and development allowed by this permit is not contrary to the 173 agreement; and
2. planning permit B0R9941 is amended, or alternatively cancelled, so that it does not apply to that part of the subject land to which this permit applies ("the permit land").

1. This Permit will expire if:
   1. The development does not start within four (4) years of the issue date of this Permit: or
   2. The development is not completed within six (6) years of the issue date of this Permit.

The Responsible Authority may extend the times referred to if a request is made in writing before the Permit expires or within the three (3) months afterwards.

[1] Sixty-Fifth Eternity Pty Ltd v Boroondara CC [2010] VCAT 310

[2] In reaching this conclusion, Deputy President McNamara relied upon the dicta of Morris, J in Solid Investments Australia Pty Ltd v Greater Geelong CC [2004] VCAT 2356, where he said:

[58] ...there is no reason why the permit or subdivision or requirement that is "relevant" must be a permit or requirement in respect of the subject land itself. It may be that it is inappropriate that an agreement should continue to apply to particular land because a permit has been granted in relation to neighbouring land

[3] [2009] VCAT 2314 at [1]- [47].

[4] Wodonga CC v Kiene (Red Dot) [2009]VCAT 81 at [32]. See also Van der Heyden v Mansfield SC [2003]VCAT 102 at[24]; Solid Investments Australia Pty Ltd v The Greater Geelong CC [2004]VCAT 2356 at [43]-[45]; Kameel Pty Ltd v Casey CC [2005]VSC 23 at [25]

[6] Wodonga CC v Kiene (Red Dot) [2009] VCAT 81 at [35]

[7] Section 61(4) of the Planning and Environment Act 1987

[8] Beluli v Brimbank CC [2004] VCAT 164 at [10]

[9] Papp v Casey CC [2006] VCAT 1845; Milana v Hobsons Bay CC [2008] VCAT 514

[11] [2011] VCAT 1414

[12] The loading bay is proposed to be located at street level with access off Fairholm Grove, opposite the Camberwell Community Centre. Delivery vehicles will be required to reverse into the loading bay, and exit in a forward direction.

[15] Table 2 to Clause 22.03 specifies a parking rate of 4 spaces per 100 m2 leasable area for a shop and 5 spaces per 100 m2 leasable area for a supermarket and department store.

[16] Review of Parking Provisions in the Victoria Planning Provisions, Advisory Committee Report, August 2007. 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

[17] Report to the Urban Planning Special Committee, Boroondara 20/08/07. The plans considered by the Council at that time were different to the plans currently before us, but the changes to the plans are not significant, especially with regard to the provision of car parking.

[18] We did receive submissions to the effect that the loading area was designed for semi trailers. This is not correct.