For the reasons set out above, we will set aside the decision made by the Responsible Authority and direct a permit be issued subject to conditions. We find the proposal represents an acceptable outcome in terms of the policies and provisions of the Hume Planning Scheme subject to some changes to allow the retention and/or protection of additional grassy woodland and indigenous trees that would enhance the internal amenity and character on-site, the relationship to the surrounding area, and achieve biodiversity benefits. That will result in the loss of five retirement units.
[2]
The permit will allow the use and development of the land for a retirement village (95 units) and access to a Road 1 Zone in accordance with the endorsed plans.
[3]
Before the use and/or development starts, plans to the satisfaction of the responsible authority must be submitted to and approved by the responsible authority. When approved, the plans will be endorsed and will then form part of the permit. The plans must be drawn to scale with dimensions and three copies must be provided. The plans must show:
(a) Delete retirement units 13, 14, 15, 80 and 90.
(b) The landscape area within the site, abutting the common boundary with No. 18 Mayfin Court, increased to allow for additional new canopy tree planting.
(c) A landscape plan.
(d) Details of arrangements for waste management and bin collection.
(e) Details of all boundary and other fencing.
(f) Bollards at the end of Mayfin Court restricting vehicle access to the site.
(g) The inundation easement contained on Lot 1 on PS073246.
(h) The height and type of fencing enclosing the secluded private open space of the individual units to be no higher than 1.8 metres.
(i) The requirements of the CFA in Condition 26 (a) of this permit.
(j) A 2.4 metre high solid treated pine acoustic fence along the entire length of the west title boundary and to wrap around for 15 metres of the south title boundary of 18 Mayfin Court. The remainder of the south title boundary is to remain as existing fencing.
(k) A row of indigenous screen trees to be planted along the entire length of the south and west title boundaries of the site where abutting 18 Mayfin Court. The screen trees are to be planted at a height of 300mm with a minimum height at maturity of 3 metres.
(l) Bollards at the end of Pinot Place where abutting the road and adjacent to 13 Mayfin Court.
(m) The landscaping and perimeter fencing along Mayfin Court to be indicated as being undertaken prior to the commencement of the development.
(n) Designated Conservation areas and individual trees to be retained.
(o) Tree Protection Zones for trees marked as being retained including those adjacent to all accessways or which have a drip line within 10 metres of any proposed building.
(p) Provide a staging plan that must include (but is not limited to) the order in which the development is to be staged, including accessways, landscaping and car parking facilities.
The layout of the site and/or the size of the proposed or existing buildings and works and/or the internal layout and use of the buildings as shown on the endorsed plans/s shall not be altered or modified except with the written consent of the Responsible Authority.
Prior to the commencement of the use, the owner of the subject land must, at no cost to the Responsible Authority, enter into and execute (in a form satisfactory to the Responsible Authority), an agreement with the Responsible Authority pursuant to Section 173 of the Planning and Environment Act 1987. This agreement must provide for:
(a) The land must only be used for persons with an age of 55 years and over.
(b) Provision of access to the internal access road available for use by Council's collection vehicles and/or appointed contractors at all times.
(c) The exemption of Council from any contribution to the maintenance of private roads which may arise from Council's use of those roads for carrying out of services such as rubbish collection.
(d) The permanent preservation and management of the trees and patches of native vegetation to be retained.
Before the development starts, the owner of the land must submit a construction management plan to the Responsible Authority. The construction management plan must provide details of:
(a) how construction vehicle traffic and vehicles attending the land will be managed during the construction period of the project to ensure that there is no unreasonable disruption to the residents and other users of the roads abutting the site; and
(b) measures to avoid disturbance to adjacent conservation areas and trees to be retained as nominated on the endorsed plans;
(c) the layout of, construction zones, storage areas for materials, vehicles and site management areas which must be wholly outside the tree protection zones and conservation areas;
(d) measures to minimise emission of dust and deposit of dirt and waste onto adjoining roads.
Once approved the construction management plan is to be to the satisfaction of the Responsible Authority and must be implemented for the duration of the development of the land.
The use or development permitted by this permit must not, in the opinion of the Responsible Authority, adversely affect the amenity of the locality.
Outdoor lighting must be designed, baffled and located to the satisfaction of the Responsible Authority such that no direct light is emitted outside the boundaries of the subject land.
All external materials, finishes and paint colours are to be to the satisfaction of the Responsible Authority.
The development permitted by this permit must not be commenced until a satisfactory landscape plan for the whole of the subject land is submitted to and approved by the Responsible Authority. Such plan must show the area(s) set aside for landscaping and in accordance with Council's guidelines and include a schedule of all proposed trees, shrubs and groundcover (including size of maturity and botanical names, which must be indigenous species of local provenance), and when approved an endorsed copy must form part of this permit.
Prior to occupation of the development, all landscaping works must be carried out in accordance with the endorsed landscaping plan and endorsed staging plan.
The landscape area(s) shown on the endorsed plan(s) must be planted and maintained to the satisfaction of the Responsible Authority and once landscaped must not be used for any other purpose. Maintenance must include the removal of weeds and the replacement of any dead plants in accordance with the endorsed landscape planting schedule.
Areas set aside for the parking of vehicles together with the aisles and access lanes must be properly formed to such levels that they can be utilised in accordance with the endorsed plan(s) and must be drained and provided with an all-weather seal coat. The areas must be constructed, drained and provided and maintained in a continuously useable condition to the satisfaction of the Responsible Authority.
Areas set aside for the parking and movement of vehicles as shown on the endorsed plan(s) must be made available for such use and must not be used for any other purpose.
A concrete kerb of a minimum height of 150mm or such other form of barrier as the Responsible Authority may approve, of sufficient height to prevent the passage of vehicles, must be provided where necessary to prevent vehicles causing damage to landscape areas, to prevent vehicle access other than where driveways are provided and to prevent vehicles projecting beyond the boundaries of the subject land.
In areas set aside for parking, kerbs or barriers or other means of protection must be installed to the satisfaction of the Responsible Authority so as to prevent damage by vehicles to the fence.
Vehicle access to and from the subject land from any roadway or service lane must be by way of a vehicle crossing constructed in accordance with Council's Vehicle Crossing Specifications to suit the proposed driveway(s) and the vehicles that will use the crossing(s). The location, design and construction of the vehicle crossing(s) must be approved by the Responsible Authority after first obtaining a road opening permit from Council and approval for the clearance of native vegetation on the roadside (if required).
Any existing unused vehicle crossing(s) not required as part of the development hereby permitted must be removed and replaced with kerb and channel, footpath and nature strip to the satisfaction of the Responsible Authority.
The requirements of Council's Traffic and Civil Design Department are as follows:
(a) A Stormwater discharge permit is required from Council.
(b) Plans must be submitted to Council's Traffic and Civil Design department for Drainage Investigation (fee of $400 applies, which includes permit to discharge into Council's drain). This will determine if on-site detention system, upgrading of Council's existing drainage pipes or new drainage pipes are required by the owners/developers.
(c) A "Storm Water Drainage Strategy" for the whole site, including any external flows up to the Q100 flows that pass through the site (incorporating any future developments) shall be prepared and submitted to Council's Traffic and Civil Design department for approval and must take into account other permit conditions as relevant. The strategy should incorporate stormwater management design in accordance with environmental best practice (Refer to "Urban Stormwater Best Practice Environmental Management Guidelines" prepared by the Stormwater Committee).
(d) On approval of the Storm Water Drainage Strategy, both external and internal drainage plans must be submitted to Council's Traffic and Civil Design department for approval incorporating the following:
(i) All drainage discharge through and along the side of the site to be placed under ground to a discharge point approved by Council.
(ii) Provision of litter control at stormwater inlet points within the car park and paving areas. All stormwater pits to be Channel Grated or Grated as per Council's Standard Dwg SD 210/215 or SD225 respectively.
(iii) Stormwater from all paved areas must be drained to the underground stormwater system.
(iv) The owner/developer is responsible for all associated design and construction costs required to provide drainage infrastructure for the site.
(v) Any cut or fill must not interfere with the natural overland stormwater flow or designated conservation areas.
(vi) No polluted and/or sediment laden runoff is to be discharged directly or indirectly into Council's drains or watercourses during and after development.
(vii) All drainage infrastructure required external to the site shall be subject to Council's design checking and supervision fees.
(e) The floodway easement must be shaped to ensure that all overland flows are contained within the easement and all works are not to interfere with any existing tree root systems. The floor levels of all units are to be above the 1 in 100 year flood water level.
(f) All access connections to the existing roadways must be designed and constructed to Hume City Council's standards and requirements.
(g) A "Consent to Dig in the Road Reserve" Permit must be obtained from Council for all works carried within the road reserve. (VicRoads approval is required for all works within the Riddell Road, road reserve.
[4]
(n) The existing redundant vehicle crossings are to be removed. The kerb and channel and nature strip to be reinstated.
No external sound amplification equipment or loudspeakers are to be used for the purpose of announcements, broadcasts, playing of music or similar purposes except in the case of an emergency.
Prior to the commencement of the development, engineering plans to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the plans will be endorsed and will then form part of the permit. The plans must show full construction details on that part of the common property accessway that is to be used by vehicles providing waste management services. The common property accessway must be constructed to accommodate a vehicle of up to 22 tonnes.
Management of the Community Centre must ensure the weekly placement of bins within the bin collection zone along the main internal access road and their return to the units within 24 hours of collection.
Tactile paving must be provided at all footpath crossings and facility access points to the satisfaction of the Responsible Authority.
The requirements of Council's City Environment Department are:
(a) Prior to construction commencing all trees nominated for retention on the endorsed plan shall be marked with the corresponding number on the endorsed plan. The numbering shall not be removed until at least 6 months after construction has been completed;
(b) Prior to the commencement of works, the designated conservation areas and trees to be retained are to be fenced to the satisfaction of the Responsible Authority.
(c) A pre-commencement meeting is required with Council's City Environment and Landscape Planners before fencing works begin and to identify the location of maintenance access points to the Conservation Corridor. The fence is to be constructed a minimum of 3 metres from the drip line of the trees on the roadside verge. Access points to have wooden swing gates or similar and clearly designated 'No Entry Zone'.
(d) No machinery or equipment is to be stored within the tree protection zones. No soil is to be stock piled within 10 metres of tree protection zones.
(e) No infrastructure, including footpaths, phone cables, power supply, drain or sewerage is to be constructed beneath trees marked for retention, including trees within the conservation corridor and trees proposed for retention within the development. All infrastructure/ services should run under the road or through the curb on the opposite side to vegetation.
(f) No soil is to be stockpiled within 30 metres of the conservation corridor. Temporary silt fencing is to be installed and regularly maintained for the length of the north-south boundary of the conservation corridor. No contaminated waters are to be directed to the conservation areas, this is to include sediment laden and polluted overland flow.
(g) Any tree damaged or removed from within the tree protection zones should be documented and will need to be appropriately offset. Any additional trees identified for deliberate removal within a tree protection zone on site after construction begins, should only be removed after consultation with Hume City Council's Environment Department.
(h) Prior to the commencement of works, a Conservation Management Plan must be submitted and approved by the Responsible Authority. The Plan must consider the designated Conservation Areas and the retained trees. The Conservation Management Plan must outline strategies and actions for the survival of the remnant Trees and the Grassy Woodland areas. It must address natural regeneration, planting techniques, watering regimes, fire response, ecological burning and weed suppression over the 10 year maintenance period. The vegetation must be managed in accordance with the endorsed Conservation Management Plan to the satisfaction of the responsible authority.
(i) All fill introduced to the site must be weed and pathogen free. Stockpiles should not be located within 4 metres of the site boundary or within 10 metres of trees marked for retention. All stockpiles should be surrounded by silt fencing and should be seeded with sterile rye if planned to be stored for more than 3 months. A tarp or similar should cover any stockpile that is allowed to dry out.
The requirements of VicRoads are as follows:
(a) Vehicular movements to and from Riddell Road must be made in a forward direction.
(b) A functional layout plan shall be submitted to and approved by VicRoads, prior to any works on site; this includes any required works on Riddell Road for the management of access to/from the development.
(c) All works within the Declared road must be performed at no cost to VicRoads.
(d) Worksite traffic management practices must be in accordance with the Australian Standard A.S 1742.3 -2002 "Manual of uniform traffic control devices - Part 3: Traffic control devices for works on roads".
(e) A traffic management plan shall be submitted to and consented by VicRoads prior to any construction works being performed in the road reserve.
[5]
The requirements of the CFA are as follows:
(a) Before the development commences, amended plans to the satisfaction of CFA must be submitted for approval by CFA and the responsible authority. When approved, the plans will be endorsed and then form part of the permit. The plans must be drawn to scale with dimensions. The plans must be generally in accordance with the plans submitted with the application but modified to show:
(i) Operable hydrants, above or below ground. Hydrants must be shown with a maximum distance between a hydrant and the rear of a building envelope (or in the absence of the building envelope, the rear of the lot) of 120m and hydrants must be no more than 200m apart.
(ii) Constructed roads with a minimum trafficable width of 7.3m if parking unrestricted, or 5.4m if parking prohibited on one side of road or 3.5m if parking prohibited on both sides of road.
(iii) Constructed roads more than 60m in length from the nearest intersection must have a turning circle with a minimum radius of 8m (including roll-over kerbs if they are provided) T or Y heads of dimensions specified by the CFA may be used as alternatives.
[6]
(iv) Operable hydrants, above or below ground must be provided to the satisfaction of CFA.
(v) The maximum distance between these hydrants and the rear of all building envelopes (or in the absence of the building envelope, the rear of all lots) must be 120m and hydrants must be no more than 200m apart.
(vi) Hydrants must be identified as specified in 'Identification of Street Hydrants for Fire fighting purposes' available under publications on the Country Fire Authority web site (www.cfa.vic.gov.au).
[7]
(vii) Roads must be constructed to a standard so that they are accessible in all weather conditions and capable of accommodating a vehicle of 15 tonnes for the trafficable road width.
(viii) The average grade must be no more than 1 in 7 (14.4%)(8.1 degrees) with a maximum of no more than 1 in 5 (20%)(11.3 degrees) for no more than 50 metres. Dips must have no more than a 1 in 8 (12%) (7.1 degree) entry and exit angle.
[8]
This permit will expire if one of the following circumstances applies:
(a) The development and use are not commenced within two years of the date of this permit.
(b) The development is not completed within four years of the date of this permit.
[9]
The Responsible Authority may extend periods referred to if a request is made in writing before the permit expires, or within three months afterwards.
[2] Mr McIlrath amended the Council's grounds at the hearing.
[12]
[3] Including additional submissions filed after the hearing with our leave relating to permit conditions.
[13]
[4] We inspected the site and locality on Friday 6 June 2008.
[14]
[5] As described in the application material by Biosis Research and a very detailed report by Homewood Consulting. The yellow gum species is listed as vulnerable in Victoria. The grassy woodland is of high to very high conservation significance.
[15]
[6] The provisions of Clauses 11, 12, 14, 15.09, 15.12, 18.02, 18.06, 19.03, 21 (Municipal Strategic Statement), 22.07 (Aged Accommodation and Services) and Clause 65 (general decision guidelines) have been taken into account by the Tribunal. We were also referred to the Council's Sunbury Strategy Plan 2006 and Hume Natural Heritage Strategy 2006, both adopted by the Council. There is no specific neighbourhood character study or policy for this part of Sunbury.
[16]
[7] We have accepted that position although we are mindful that the interpretation adopted has wider implications for the operation of Clause 52.17 as a whole and particularly the extent to which any development with building(s) will trigger a planning permit.
[17]
[8] VicRoads offered no objection to the proposal subject to conditions.
[18]
[9] To this extent that this raises questions of law, there was no objection by any party to the Tribunal as constituted deciding the question(s).
[19]
[10] Shalit v Jackson Clement Burrows Architects Pty Ltd [2002] VCS 528.
[20]
[11] As noted, the Council submitted the qualification in the Clause relating to "minimum extent" could be accommodated by permit conditions to ensure trees close to retirement units or accessways could be protected and retained.
[21]
[12] Shalit v Jackson Clement Burrows Architects Pty Ltd [2002] VCS 528, DM &SO Pisotek v Manningham City Council [2006] VCAT 2374.
[22]
[13] Victorian National Parks Association Inc v Iluka Resources Limited [2004] VCAT 20. Our approach is consistent with how the VPP Practice Notes address the consideration of flooding - "Clause 65 of the planning scheme extends the consideration of flood issues to all planning permit applications regardless of whether the site is affected by a flood zone or overlay".
[23]
[14] It is common ground between the parties that this purpose is relevant as a retirement village is a residential-based use.
[24]
[15] The Hume Natural Heritage Strategy 2006 makes reference to its intended application of the Framework and net gain assessments (eg. at pages 40 and 94) but that does not over-ride the provisions of the Scheme or provide a basis for us to direct net gain/off-sets. If the land was affected by a suitable Overlay, then the outcome may have been different.
[25]
[16] We have not referred to policies relating to species identified in the Flora Fauna Guarantee Act 1988 as this applies to public land. Similarly, we have not referred to other directions relating to public land as these are not relevant to the matters before us.
[26]
[18] Page 4 of planning report prepared by Collie Pty Ltd dated July 2007.
[27]
[19] Arboricultural Report by Homewood Consulting 17 February 2006 for Australian Property Custodian Holdings Pty Ltd.
Parties
Applicant/Plaintiff:
Urban Alliance Corporation
Respondent/Defendant:
Hume CC [2008] VCAT 1328
Legislation Cited (2)
Environment Act 1987
Fauna Guarantee_ Act 1988
Cases Cited (1)
Urban Alliance Corporation v Hume CC [2008] VCAT 1328 (4 July 2008)
(h) Prior to the commencement of the use permitted by this permit, the existing type AUR right turn treatment at the intersection of Riddell Road and Spavin Drive is to be upgraded to a type CHR to the approval of VicRoads.
(i) The AUR right turn treatment proposed into the site on Riddell Road must be upgraded to provide a type CHR right turn treatment into the proposed access. A functional layout plan must be provided to the satisfaction of Council and VicRoads. All work costs are to be borne by the applicant.
(j) Prior to the commencement of the development, the owner/developer must provide a pedestrian footpath to Council's standard along all of the boundaries of the retirement village site including the Sunbury Private Hospital frontage, without encroachment on to any designated conservation areas (including beneath the canopy of trees to be retained). A connecting footpath is required to the existing bus stop and shelter on Riddell Road. The footpath is to be provided to the satisfaction of the Responsible Authority and at the owner/developer's cost.
(k) All visitor carspaces are to be linemarked and clearly signed.
(l) All proposed access points within the road reserve must be a minimum of 5 metres wide and provide culverts and end walls where required.
(m) A Consent to Dig in the Road Reserve Permit for a vehicle crossing is required from Council. Any service relocations to the approval of the Service Authority and at the owner/developer's cost.