Victorian Civil and Administrative Tribunal|2014-06-30

The Applicant agreed to a condition on the permit requiring the shop to be used in conjunction with the office and warehouse, thus avoiding the potential outcome of a stand-alone shop. The Applicant also suggested that the description of the site be narrowed, so as to ensure that the entirety of the site at 442-444 Warrigal Road, Chadstone cannot draw any benefit from this permit for a shop. I will implement both of these suggestions, that were ultimately agreed to between the parties.

I see no need to apply a condition to this permit that would see the permission to use the land for a shop to expire in 15 years. I am required to assess the adequacy of this proposal according to the Kingston Planning Scheme as I have found it, and for the reasons stated I find that the proposed use is supported. I do not consider it to be fair or reasonable, or to facilitate the economic development of land, to allow the Council a further opportunity to resist the proposed shop once it has further reviewed its policies for its activity centres and other commercial precincts. 2. Other changes to the conditions as drafted by Council were agreed to between the parties, and I will make changes that reflect those agreements to the conditions contained in Appendix 1 to this decision.

For the forgoing reasons the decision of the Responsible Authority will be set aside.

That part of the land at 442-444 Warrigal Road, Heatherton identified on the endorsed plans as being used for the purpose of a shop, office and warehouse.

The use of the land for a shop and the display of two business identification panel signs in accordance with the endorsed plans.

The extent of the shop use as shown on the endorsed plans must not be altered without the prior written consent of the Responsible Authority.
The location, details and specifications of the signage as shown on the endorsed plans must not be altered without the written consent of the Responsible Authority.
The shop hereby permitted shall only operate in conjunction with the office and warehouse depicted on the endorsed plans, to the satisfaction of the Responsible Authority.
Not less than 57 car parking spaces must be kept available for the use of premises (as shop, warehouse and office) to the satisfaction of the Responsible Authority, unless with further written agreement from the Responsible Authority.
Loading and unloading areas to be to be used only for these purposes.
The signage must not include any animation, electronic component or be internally illuminated.
The signage lighting must be designed, baffled and located to prevent any adverse effect on adjoining properties or roads to the satisfaction of the Responsible Authority.
Unless otherwise extended in writing by the Responsible Authority, this permit, as it relates to signage, expires 15 years from the date of issue, at which time the signage and any supporting structures must be removed and the site made good to the satisfaction of the Responsible Authority.
This permit will expire if one of the following circumstances applies:
1. The use is not started within two years of the issued date of this permit.
2. The use is discontinued for a period of two years.

In accordance with Section 69 of the Planning and Environment Act 1987, an application may be submitted to the responsible authority for an extension of the periods referred to in this condition.

[1] I have considered all submissions presented by the parties although I do not recite all of the contents in these reasons.

[4] Except for relatively minor amendments to Clause 22.18 - Materials Recycling as part of Amendment C129 to the Kingston Planning Scheme on 19 December 2013.

[8] Obviously those that are Section 1 uses are more firmly encouraged than those that are Section 2 uses.

Wittner Pty Ltd v Kingston CC [2014] VCAT 789 (30 June 2014)

Walker Corporation Pty Ltd v Wyndham CC [2007] VCAT 1396; Kentucky Fried Chicken Pty Ltd v Gantidis [1979] HCA 20; (1979) 140 CLR 675; Bunnings Pty Ltd v Surf Coast SC & Ors [2011] VCAT 690.

Wittner Pty Ltd v Kingston CC [2014] VCAT 789

At a glance

Court

Decision date

Source

Judgment (13 paragraphs)

Parties

Cases Cited (3)

Wittner Pty Ltd v Kingston CC [2014] VCAT 789 (30 June 2014)