1. On 27 November 2024 a fourth extension for a one year extension of time to commence and complete the development (the current proceeding). On 23 April 2025, council advised that it would have refused to extend the permit.

1. In considering the request, both parties referred me to the extension of time principles referred to in Kantor v Murrindindi Shire Council (1997)[2] ('Kantor'). I was also referred to AMV Homes Pty Ltd v Moreland CC (Includes Summary) (Red Dot)[3] for the purpose of highlighting that the Kantor 'tests' are not mandatory nor exhaustive, there may be other relevant considerations and each case needs to be decided on its own facts and circumstances. The Kantor principles provide:
   • Whether there has been a change of planning policy.
   • Whether the land owner is seeking to warehouse the permit.
   • Any intervening circumstances which bear upon grant or refusal of the extension request.
   • The lapse of time between the permit and the request.
   • Whether the time limit imposed was adequate.
   • The economic burden imposed on the land owner by the permit.
   • The probability of a permit issuing should a fresh application be made.
2. I had planning evidence from Mr D'Amico and acoustic evidence from Mr Growcott.
3. In summary, but not limited to, the applicant submitted that in considering whether the Permit should be extended, I should consider the 'suite' of factors to be taken into account and not focus on just one or two issues. It was submitted that an extension should be granted as the applicant has not 'sat on its hands' as it has:
   • Applied for an amendment for a caretaker's house. The time taken for a decision delayed further work being undertaken on this Permit.
   • Lodged a landscape plan for approval, under this Permit.
   • Procured building insurance and an asset protection permit.
   • Engaged a builder to undertake preparatory works which included, site levelling, site clearing of vegetation, re-installed a fence and other such works.
4. The applicant further noted that any concern regarding amenity to the residential development to the north can be addressed by condition 16 of the Permit and the fact that the development will be required to comply with the provisions of the Environment Protection Act 2017 ('EPA Act').
5. Council submitted that the Permit should not be extended because:
   • Since the grant of the planning Permit more than 5 years ago, no works have commenced under the Permit.
   • The Permit is not complex and therefore there has been sufficient time to commence development.
   • Since the issue of the Permit, the surrounding physical context has materially changed, creating considerable uncertainty about the likelihood of a permit being granted on the same terms if a fresh application was made.
   • Amenity impacts on the new dwellings to the north have not been adequately addressed in the context of the development approved under the Permit because those dwellings did not exist when the Permit was granted.
6. I have decided to refuse to extend the permit. My reasons follow.

1. In making my decision, I have had regard to the submissions, the evidence, the Kantor principles and other matters identified by the parties. Both parties made submissions about each of the factors identified in Kantor as well as other matters they consider pertinent to the consideration of this extension of time.
2. There is agreement by the parties that it does not appear that the applicant is seeking to warehouse the Permit and there has been no substantial change in planning policy or planning controls since the grant of the Permit. I agree with these submissions and therefore make no further comment regarding these principles.
3. I also make the finding that in considering if the time limit originally imposed was adequate, in ordinary circumstances, minus the COVID-19 factor, the original time was adequate. Given the permit was issued at the end of 2019 and COVID-19 commenced early 2020, it is reasonable that the planning permit was granted an extension in both 2021 and again at the end of 2022. I find these extensions account for time 'lost' due to COVID-19.
4. The applicant submitted that there would be a financial burden imposed on the applicant with respect to re-engaging consultants to prepare updated reports, plans, application fees, etc if the Permit extension was refused. Council submitted that the applicant did not provide any evidence that the economic burden cast by the Permit was beyond what would ordinarily be incurred when one undertakes a development such as the proposed. I acknowledge that refusing to grant the Permit will result in some costs associated with the lodgement of a new application, but I do not consider this is a reason to approve the extension. It is one of the factors to be considered.
5. I have focussed on my reasons for refusing to extend the Permit, namely the change in the physical circumstances to the north (the residential development) and the fact that whilst it may be likely that a permit might issue for a similar development, it is my assessment that it would be a 'very different permit' with updated conditions to reflect the new residential development to the north.

The change in physical circumstances being the residential development to the north at 209 Chapel Road, Keysborough.

1. My key reason for refusing to extend the permit is because of the change in the physical circumstances of the land to the north and the fact that the current Permit does not adequately address the amenity issues. The Permit includes the following conditions:

[4] The car wash must only operate between 7:.00am -- 10:.00pm. > > [16] The amenity of the area must not be detrimentally effected by the use on the land, through the: > > 16.1. Transport of materials, goods or commodities to or from the land. > > 16.2. Appearance of any building, works or materials. > > 16.3. Emission of noise, artificial light, vibration, smell, fumes, smoke, vapour, steam, soot, ash, dust, waste water, waste products, grit or oil. > > 16.4. Presence of vermin.

2. Council considered that the amenity impacts on the new dwellings to the north have not been adequately assessed in the context of the development approved under the Permit, because those dwellings did not exist when the Permit was granted. It was further submitted that in the context of a fresh application, consideration of off-site amenity impacts would be different to that considered in 2019 and it is not improbable that new amenity considerations would be raised by adjoining landowners. Residents to the north have not had an opportunity to consider the proposal approved under the Permit. In summary, council is concerned that the car wash could cause unreasonable amenity impacts on the surrounding residential properties, particularly 113 and 115 Calibre Retreat which directly abut the land.
3. The applicant submitted that the potential impact on the adjoining residential properties has been addressed by the current Permit and the Permit does not result in any unreasonable amenity impacts on the properties to the north. It was further put that a permit for the car wash would likely be granted today.
4. Mr Growcott provided an acoustic assessment of the approved car wash. He conducted acoustic testing to determine ambient background noise levels and then made an assessment of the predicted noise levels. He concluded that 'noise emissions associated with the proposal can comply with relevant Noise Protocol limits during the proposed operating hours'. He noted the existence of the 3 metre boundary fence shared with the property to the north, the plant would be located within an enclosure and submitted that it was his understanding that the development to the north had reached an agreement with the loading dock associated with the supermarket relating to acceptable noise levels (he did not offer any evidence of this agreement).
5. The concern I have, however, is the assumptions and specifications Mr Growcott's conclusions are based on. Mr Growcott submitted that he understood the construction of the wash enclosure would include:

Wash Enclosure Entry/Exit Doors

The entry/exit doors will achieve not less than Rw20. This will be achieved by either an acoustically rated 'fast' door, or by installing two rows of roller shutter doors in series to the entry and exit of the enclosure. The roller doors will be non-perforated and well fitted to the opening to minimise noise leakage around the door perimeter.

Wash Enclosure Roof

The roof for the wash enclosure will include 0.48mm thick metal sheet externally in combination with an internal suspended cement sheet ceiling. The cavity will be not less than 92mm deep and will include 75mm x 14kg/m3 fibrous insulation. There must be no gaps between panels or around the perimeter of the roof, and the overall system will achieve an ≥Rw40 performance.

Wash Enclosure Walls

The external walls of the enclosure will be constructed using blockwork or the like. The blockwork must be built with full depth mortar and with no gaps. The external wall construction will achieve an ≥Rw45 performance.

Plant Room

The walls and roof of the plant room will be constructed as for the remainder of the wash enclosure. Any external doors to the room will be 38-40mm solid core timber fitted with perimeter acoustic seals.

Operating Limitations

The facility will operate in accordance with the Planning Permit between 7:00am and 10:00pm. The operating sequence of the wash process which emits noise will only occur during times when all façade sections are closed.

The above construction and operating limitations have formed the basis for the assessment.

1. Mr Growcott made further assumptions regarding the number of vehicles per hour and that waste collection would occur between the hours of 7.00am to 10.00pm.
2. Mr Growcott agreed that if any of the assumptions change the conclusions may also change. He also agreed that the approved Permit and endorsed plans do not require the car wash to be constructed in accordance with his specifications.
3. As noted above, the applicant lodged a third extension of time on 1 February 2024. Council refused this third extension on 27 June 2024 for the key reasons that there has been a substantial change to the context of the site through the development of the adjoining land to the north for residential properties which was not considered under the original assessment for the proposal and unreasonable amenity impacts to these residential properties would occur which would mitigate against the issue of a permit. As part of the planning application process, the applicant submitted an acoustic report dated 19 April 2024 prepared by Enfield Acoustics Noise Vibration. Like Mr Growcott, this report also concluded that to assist the proposal in complying with relevant Noise provisions, acoustic mitigating and control measures are required including a "fixed roof over extending 3.5 metres high wall", and "Roof/ceiling construction must be designed to achieve an acoustic performance rating of Rw45", as well as the car wash must be installed with automatic entry/exit door closing mechanisms that can be programmed.
4. I have referred to this 2024 Enfield acoustic report and conclusions as it highlights that the applicant has been aware that there are potential issues with the change in circumstances of the land to the north and the car wash use.
5. Mr D'Amico also considered the impact on the amenity to the residential properties. He submitted that at the time of the granting of the Permit, there was a sensitive use to the north (a single dwelling) so the 'residential' use has been considered as part of the consideration of the Permit. He further submitted that even if the Permit does not include conditions requiring building specifications of Mr Growcott, it includes an amenity condition (16) and there is a separate legislation of the EPA Act to comply with.
6. In response to questions, Mr D'Amico acknowledged that if an application was lodged today, it is likely it would be approved but the conditions may be very different.
7. I am persuaded by council that the change in the circumstances of the residents to the north leads me to refuse to extend the permit. I was referred to a decision McKay v Golden Plains SC[4] where Senior Member Byard made the observation:

[24] It is clear enough that, if it is obvious that the new permit would be refused, that will normally be an important consideration in favour of not extending the existing permit. However, the same situation does not arise if there is doubt as to whether the new permit would be granted, and if so whether it would be on the same terms. If there is doubt, the appropriate thing is to refuse the extension so that the applicant can apply again and have the proposal assessed on the basis of the current situation, including the current law, current planning policies and the current situation in relation to the land and locality. It is not enough that there might be a reasonable prospect of an identical permit being granted. If there is doubt, then the public interest requires that the new application should be made and determined appropriately. For this reason too, I would refuse this extension. (Tribunal underlining).

8. I am not satisfied with the approach of the applicant, that any potential amenity concern can be dealt with either through the EPA Act or via condition 16. Condition 16 is adequate in terms of a general amenity condition but it does not reflect the specifications of the evidence of Mr Growcott.
9. The Permit in its current form issued in 2019, does not address the change in circumstances, the residential use to the north. I find this is a significant change in circumstances. The Permit does not reflect the changes required by two acoustic experts. The Permit does not include the construction specifications as detailed by Mr Growcott. Whilst the applicant may submit that it is intended to construct the car wash using the specifications, there is no requirement to do so.
10. Whilst it is likely that a permit may be granted for a car wash, the conditions are likely to be very different. In a fresh application, the conditions may reflect the changes required by Mr Growcott, they may address the matter of waste collection, and the hours of operation may change. A fresh application will require an assessment of policies at clauses 13 'Environmental Risks and Amenity', clause 13.07 - 1S 'Land use compatibility', 15 'Built environment and Heritage', 21.05 'Built Form' and 22.04 'Urban Design in Activity and Neighbourhood Centres'.

1. The Tribunal must balance all considerations to determine whether it is fair and reasonable to extend the permit. In this case, I have decided to refuse to extend the permit because:
   1. I am not persuaded the development is overly complex that requires extra time to commence.
   2. There has been a substantive change to the circumstances of the land to the north.
   3. Whilst a permit may issue if a fresh application is lodged, it is very likely that it will be a very different permit.
2. For the reasons given above, I have decided not the extend the permit.

[1] The submissions and evidence of the parties, any supporting exhibits given at the hearing and the statements of grounds filed have all been considered in the determination of the proceeding. In accordance with the practice of the Tribunal, not all of this material will be cited or referred to in these reasons.

[2] [1997] VicSC 167; 18 AATR 285.

[3] [2015] VCAT 1699.

[4] [2005] VCAT 1273.