VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
ADMINISTRATIVE DIVISION
PLANNING AND ENVIRONMENT LIST
VCAT REFERENCE NO. P3933/2011
PERMIT APPLICATION NO. YR-2011/647
CATCHWORDS
Section 77 of the Planning and Environment Act 1987; Yarra Ranges Planning Scheme; Business 1 Zone;
Abuts Main Road Zone 1; Convenience restaurant; Character of the commercial centre and town;
Distinction between use and development; Appearance, design and materials of the building; Access, traffic,
parking and deliveries; Signage; Illumination; Noise; Litter; Patron management and safety; Acoustic fence;
Landscaping; Conditions on a development permit
APPLICANT FOR REVIEW
McDonald’s Australia Limited
RESPONSIBLE AUTHORITY
Yarra Ranges Shire Council
REFERRAL AUTHORITY
Vic Roads Metropolitan South East Region
RESPONDENTS
Tecoma Village Action Group, E Ward and Ors
(See Appendix A)
SUBJECT LAND
1529, 1529A, 1531 and 1533 Burwood Highway,
Tecoma
WHERE HELD
Melbourne
BEFORE
G Rundell, Presiding Member
Megan Carew, Member
HEARING TYPE
Hearing
DATE OF HEARING
6–13 August, 3 and 4 September 2012
DATE OF ORDER
10 October 2012
CITATION
ORDER
1
Pursuant to section 60 of the Victorian Civil and Administrative Tribunal Act
1998 Enrico Cobsacco, Janine Watson, George, Lesley and Craig
Bankowski, Andrew Munn, Mo Cromer, DS and DJ Edwards, Kate O’Reilly,
Christine Scanlon, Seona Black and S Lazarus are joined as parties to this
proceeding.
2
Pursuant to section 127 of the Victorian Civil and Administrative Tribunal
Act 1998 the application is amended by including within the permission
sought:
Alterations to the access to a Road Zone Category 1, and
Creation of easements
3
The decision of the responsible authority in relation to permit application no.
YR-2011/647 is set aside.
4
A permit is granted in relation to land at 1529, 1529A, 1531 and 1533
Burwood Highway, Tecoma. The permit will allow

Buildings and works for a convenience restaurant

Creation, variation and removal of easements

Displaying business identification and internally illuminated signage

Removal of vegetation

Alteration of access to a Road Zone Category 1
generally in accordance with the endorsed plans and subject to the
conditions contained in Appendix B to these reasons.
G Rundell
Presiding Member
VCAT Reference No. P3933/2011
M Carew
Member
Page 2 of 56
APPEARANCES
For Applicant
Mr Chris Townshend SC and Ms Emily Porter
Barrister, instructed by Norton Rose.
They called the following witnesses:

Mr Stuart McGurn, town planning consultant,
ERM Consultants

Ms Liz Hui, acoustic engineer, Marshall Day

Mr Darren Atkinson, landscape architect, Urbis
Consulting Pty Ltd

Mr Stephen Hunt, traffic engineer, Cardno
Consulting Pty Ltd

Mr Tim de Young, traffic engineer, GTA
Consultants
Evidence prepared by Mr Rob Galbraith, arborist, was
accepted as read and he was not required to present his
evidence.
For Responsible Authority
Ms Mimi Marcus, Solicitor, Maddocks Lawyers
For Referral Authority
Did not attend
For Respondents
David Jewell represented the Tecoma Village Action
Group.
He called the following witness:

Dr Barry Clark, optical scientist
Mr Tim Radisich, town planning consultant,
represented Susan Breskvar, Alan Zanolla, David
Walsh, Scott Kircher, Mike Brown, Lyn Eggington,
Richard Gipps, Margie Ames, Marita Hanigan and Jeff
Dickinson.
David Hall, Michelle Jones, Carolyn Ebdon, Kaz
McKay, Rosalind Marulanda, Jenny Saulwick,
Kathleen Bosworth, Mathew Lucas, Mark Haviland,
Claire Ferres Miles, Zoe Glen-Norman, July Woolf,
Davey Heller, Louis Smith, Barbara Smith, Jamie
Walvisch, Joy Serwylo, Brian Gibbs, Karl Williams,
Erwin Jahn, Roz Yeung, Anne Elizabeth, Stuart
Thompson, Anita Dealy, Timothy Richards West for
Tecoma Primary School, Melissa Koch for Tecoma
Preschool, all in person.
VCAT Reference No. P3933/2011
Page 3 of 56
INFORMATION
Description of Proposal
To construct a convenience restaurant that would
comprise 56 internal seats, 28 seats on an external
terrace and 6 seats (on benches) in a play area. It
would provide parking for 26 vehicles and provide 4
bicycle parking spaces. It would also have a ‘drive
through’ service area with two customer ordering
devices and capacity for 12 vehicles.
The building would be single storey to Burwood
Highway and two storeys at the north (rear) elevation.
The drive through service area would be located on
the ground level at the rear of the building. The
restaurant would also have an outdoor play area and
outdoor terrace.
The restaurant would operate for 24 hours each day.
Permission is also sought to modify the easements on
the land, for signage (32 signs, 11 of which would be
illuminated), alteration to the access to Burwood
Highway and the removal of three native trees.
The building would have a height of 5.5 metres to
Burwood Highway and 7 to 8.7 metres at its north
facing elevation. The building would have a frontage
of 25 metres to Burwood Highway.
Materials would include Hardie ExoTec façade panels
with various paint finishes, concrete blockwork,
stackstone cladding, aluminium door and window
frames and zincalume metal roof.
Nature of Proceeding
Application under section 77 of the Planning and
Environment Act 1987
Zone and Overlays
Business 1 Zone
Abuts a Road Zone Category 1
Permit Requirements
Clause 34.01–4 (buildings and works in a B1Z)
Clause 52.02 (removal of easements)
Clause 52.05 (advertising signage in a B1Z)
Clause 52.29 (modification of access to a Road Zone
Category 1)
Clause 53.01 – (buildings and works and removal of
vegetation)
VCAT Reference No. P3933/2011
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Key Scheme policies and
provisions
Clauses 10.04, 11.01, 12, 13, 14, 15.01, 15.02, 16.01,
17, 18.02, 19, 21.03, 21.04, 21.05, 21.06, 21.07, 22.01,
34.01, 52.02, 52.05, 52.06, 52.07, 52.29, 53.01, 55 and
65
Land Description
The review site is located on the north side of
Burwood Highway, approximately 17 metres west of
Sandells Road. The site comprises three titles. In total
the site is generally “L” shaped. It has a frontage to
Burwood Highway of 41.91 metres, a depth of 83.2
metres and an area of 3,681 square metres.
The land falls approximately 8 metres from Burwood
Highway towards the north. It also falls from east to
west. The site has various easements in regard to
access shared with adjoining properties.
The site is occupied by two commercial buildings used
as a cafe and a restaurant. The site is at the western
end of the Tecoma commercial centre.
Land to the west is occupied by 5 commercial
businesses including offices and a restaurant. Land
abutting to the north and east is vacant. Dwellings abut
to the northeast.
Land on the south side of Burwood Highway opposite
the site is occupied by a medical centre, petrol station,
primary school, preschool and four dwellings.
Tribunal Inspection
We inspected the site and its environs on 4, 18 and 23
August 2012. The parties did not accompany the
inspections.
Cases Referred To
Freeman Tecoma Pty Ltd v Yarra Ranges SC [2009]
VCAT 2457
VCAT Reference No. P3933/2011
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REASONS1
WHAT IS THIS PROCEEDING ABOUT?
1
Tecoma is located approximately one hour’s drive to the east of central
Melbourne. One drives through Melbourne’s gently undulating eastern
suburbs to Ferntree Gully. East of Ferntree Gully, the road climbs into the
foothills of the Dandenong Ranges to Tecoma. Between Ferntree Gully and
Tecoma, the Burwood Highway passes through an urban area containing
houses, shops and various commercial businesses. The road is bordered by
the Belgrave suburban train line. Although the area contains buildings and
roads and the like, the streetscape changes and one sees a hilly terrain
covered with trees. The landscape is different to the more robust, suburban
areas west of Ferntree Gully.
2
The commercial centre of Tecoma comprises over 20 businesses. These
include cafes and fast food outlets, a petrol station, some businesses serving
passing tourists and other businesses mainly serving local residents. A
primary school, a preschool, several medical/health clinics and a church
make up the commercial centre.
3
The commercial centre is within a highly scenic setting. To the north, over
the roofs of the shops, are the tree covered hills of the Dandenong Ranges
National Park. The area to the south of the town centre falls to a valley. An
extensive tree canopy forms a backdrop to the commercial centre. The area
surrounding the town contains many dwellings, however only filtered views
of this built form can be seen through the tree canopy.
4
It is a quiet town with a strong community spirit and a commitment to
conserving the environment. The lights in the commercial precinct largely
go off around 10.00pm. People wanting bright lights in the evening drive
down the hills to Melbourne’s eastern suburbs or travel further east to
Belgrave.
5
Tecoma is home for its residents, but it is on the way to other places in the
Dandenong Ranges. Further east are well known tourism destinations
including the towns of Emerald and Cockatoo, and tourism attractions such
as Puffing Billy, Grants Park, Ricketts Sanctuary and iconic small towns,
restaurants and art/craft galleries.
6
The review site is presently occupied by two buildings that are used for a
café and restaurant. Car parking for these businesses is presently located to
the rear of the buildings, accessed from Burwood Highway along a
driveway shared with No.1527 Burwood Highway to the west. Access is
also provided from Sandells Road across the rear of Nos.1533 and 1535
Burwood Highway.
1
We have considered all submissions presented by the parties although we do not recite all of the
contents in these reasons.
VCAT Reference No. P3933/2011
Page 6 of 56
7
In June 2011 McDonald’s Australia Limited applied to Yarra Ranges Shire
Council for a planning permit to develop a convenience restaurant in
Tecoma. It would replace the two buildings on the land. It would operate all
day, every day of the week. Public notification was given and over 1,300
objections were lodged with Council. The responsible authority determined
to refuse the proposal. The Notice of Refusal sets out fifteen grounds that
include failure to achieve landscaping objectives, the design response,
traffic and parking concerns and adverse amenity impacts on neighbours.
8
McDonald’s Australia Limited has requested the Tribunal to review
Council’s decision. Over three hundred and twenty (320) statements of
grounds have been lodged with the Tribunal in support of the Council’s
decision. The grounds relied upon by residents include a global fast food
company would be inconsistent with the tourism ‘offer’ or ‘brand’ of the
Dandenong Ranges. The building would be too large and inconsistent with
Tecoma’s character. The proposal would cause a wide range of adverse
offsite impacts including noise, illumination from the advertising, litter,
food preparation odours, antisocial behaviours and public safety, adverse
impacts on health, and adverse impacts on native fauna. Furthermore, the
traffic generated by this proposal would make worse the existing traffic
congestion on Burwood Highway at peak times.
9
McDonald’s Australia rejects many of these grounds and submits that
Tecoma is well located to accommodate this development. It is located on a
declared main road. As no planning permission is required to use the site
for a convenience restaurant, it submits that many of the objectors’ concerns
are not relevant to the planning permission sought. They submit the
building is well designed, would fit well into the streetscape, and would be
highly consistent with the present development on the land. The proposed
landscaping would rejuvenate a site that is tired and ready for renewal. The
proposal would meet relevant standards in respect of access, car parking,
disability parking and loading.
10
The key issues that we must determine in this matter are:
11

What are the matters before the Tribunal in this review?

What guidance is provided by the planning policy framework?

Would the height, massing and appearance of the development fit into
the Tecoma commercial centre?

What signage is appropriate?

Would the access, parking (including disability parking) and loading
arrangements be satisfactory?

Would the development impose adverse amenity impacts on its
neighbours and the wider commercial centre?
We must decide whether a permit should be granted and, if so, what
conditions should be applied. Having considered all submissions and
VCAT Reference No. P3933/2011
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evidence presented with regard to the applicable policies and provisions of
the Yarra Ranges Planning Scheme, we have decided to set aside the
decision of the responsible authority and grant a permit. Our reasons
follow.
REVIEW OF KEY ISSUES
What are the matters before the Tribunal in this review?
12
This matter has generated considerable community interest and opposition.
The objections lodged with Council and the Tribunal raise many matters
that were amplified in the many submissions from the parties at the hearing.
Before turning to the merits of the application before us, we set out the
matters that we have to decide in this review.
13
The Tribunal is required to apply the Planning and Environment Act 1987
and the Yarra Ranges Planning Scheme at the time it makes its decision. It
must apply the law correctly and it cannot make decisions based on matters
outside or inconsistent with the law.
14
The review site is within a Business 1 zone under the Yarra Ranges
Planning Scheme (‘the scheme’). A McDonald’s restaurant is defined in the
Scheme as a convenience restaurant, which is defined as:
Land used to prepare and sell food and drink for immediate
consumption, where substantial provision is made for consumption
both on and off the premises2.
15
A food and drink premises (which includes a convenience restaurant) is
included in Section 1 of the table to clause 34.01 (Business 1 zone). No
planning permit is required to use the land for that purpose. Hence, any
convenience restaurant, including McDonald’s Australia, could operate
from the existing buildings (or any other building within the Tecoma
business centre zoned Business 1), without planning permission. A food
and drink premises does not require planning permission to operate for
extended hours.
16
Planning permission is required under clause 34.01-4 to develop the land.
Hence, planning permission is required for the new building, its signage, its
car parking and lighting. Planning permission is also required to remove
native trees and to modify the access to Burwood Highway. The Scheme
also sets out design requirements for car and bicycle parking, any loading
bay and signage.
17
We note that no Overlays apply to the review site. Hence the Scheme does
not provide particular guidance or requirements in regard to heritage, design
requirements or vegetation, beyond the matters identified under the
Business 1 Zone and in general policies.
2
Clause 74
VCAT Reference No. P3933/2011
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18
What do we have to determine in this review? We need to assess whether
the form and appearance of the proposed building fits into the Tecoma
streetscape. We need to determine if the traffic and access arrangements,
car and bicycle parking, and loading arrangements are appropriate. We also
need to consider if the proposed lighting, landscaping and signage would be
appropriate. We need to ensure that the proposed buildings and works do
not adversely affect the amenity of the adjoining and nearby dwellings, the
school, preschool and other businesses.
19
The objections and submissions raised many concerns that we cannot
consider as they relate to the use of the land, which does not require our
permission. These included the health effects of ‘fast food’, economic
competition between the existing and the proposed food outlets, and the
balance of trade between businesses serving the local community and
tourists. The role of the Tecoma commercial centre within the hierarchy of
centres in the Dandenong Ranges was also a matter of concern. Likewise, it
was submitted that a global fast food company would not fit into the
particular culture of the Hills.
20
We also heard many submissions regarding the behaviour of patrons and
the possible prevalence of litter generated by the use of the land. These
matters cannot be determinative in this matter as they relate to the use of the
land. We propose to address these matters through permit conditions.
21
Other matters raised in submissions are also outside our discretion. A
number of submitters put to us that the existing buildings have heritage
value and should not be demolished. As noted above, we are guided by the
Planning Scheme. No Heritage Overlay applies to the land, hence the
buildings have no particular status or significance in the Scheme. No
planning approval is required to demolish the buildings. We cannot give
any weight to these submissions.
22
Resident objectors also submitted that the convenience restaurant would
attract additional people to the region. It was submitted that on days of high
bushfire danger, this would be contrary to the objectives of planning and
clause 65 decision guidelines that require planning to create safe places.
23
We note that whilst the whole of the Dandenong Ranges is recognised in
policy to be a place of high bushfire danger, no relevant overlay applies to
the review site. There are no planning restrictions or design requirements on
this site. The site is not highlighted as being any more susceptible to fire
danger than the remainder of Tecoma, Upper Ferntree Gully or Belgrave.
We also note that the use is as of right and a convenience restaurant of
similar size could operate from the existing buildings on the site without
planning approval. Given the prevailing planning framework that applies to
this land and the Tecoma commercial centre generally, we consider the
appropriate way to address fire risk is by ensuring that measures are in
place to manage staff and patrons on high fire risk periods. We do not
consider fire risk is a basis to reject this proposal, given that the land is
VCAT Reference No. P3933/2011
Page 9 of 56
within a Business 1 zone and an established commercial centre. We also
note that this matter will be further addressed as part of the building
approval stages of development.
24
Submitters also opined that we should give weight to the large number of
objections and Statements of Grounds. The school and preschool submitted
that parents are considering not enrolling their children if the development
proceeds. It was submitted that this evidence of public concern and
opposition constitutes a social impact in the context of s.60 of the Planning
and Environment Act 1987.
25
We acknowledge there is considerable opposition to this proposal. We read
all the statement of grounds submitted to the Tribunal. We heard the
submissions from the community advocates. All were articulate, heartfelt
and sincere. All were carefully prepared and well presented. Indeed the
permit applicant commented that McDonald’s restaurants in a Residential 1
Zone, where a permit is required for both use and development, are not
usually subject to the level of scrutiny of this proposal.
26
However, the Tribunal has consistently found that planning decisions are
not to be based on the numbers of objections. Our decision must be based
on the planning merits of the planning arguments and the evidence for and
against this proposal. We must be guided by the policies and requirements
of the Scheme.
27
A large number of submissions opposing a development do not constitute
evidence of adverse social or economic impacts. Such impacts would need
to be identified through independent empirical study(s) using credible social
scientific methodologies. They would need to identify adverse impacts on
particular groups in the community and show that the impacts clearly arise
from the development. It would need to demonstrate that the impacts would
arise only if the development proceeds, and that the impacts would be
significant. Such material would need to be presented to a hearing as
evidence from an expert and therefore be subject to cross-examination by
all parties. No such evidence was presented to us. We therefore
acknowledge the community concerns, but cannot agree with propositions
that the number of objections is sufficient demonstration that this proposal
would have adverse social or economic impacts.
28
Most development proposals before the Tribunal and any Council have
multiple design solutions. Clause 65 of the Scheme requires that a
development be ‘acceptable’. It is not the Tribunal’s role to require that a
design be perfect or excellent before it can be approved. It is not our role to
redesign this or any other proposal to achieve the very best design. We must
assess whether its appearance and operational aspects are acceptable guided
by the site’s context and the relevant planning policy.
29
We summarise this section by confirming that under the scheme a
convenience restaurant, including McDonald’s could commence operations
without planning permission in any existing building within Tecoma’s
VCAT Reference No. P3933/2011
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commercial centre. The use of the land for this purpose is not before us. Our
discretion is limited to the design and appearance of the building and its
associated works, its possible amenity impacts on its neighbours, and any
impacts on the adjoining road network.
30
We now turn to our assessment of these matters, beginning with the
proposed buildings and works.
What guidance is provided by the planning policy framework?
31
In this section we assess the compliance of the proposal with the State and
local planning policies in the Scheme.
32
The State planning policy framework generally encourages Melbourne to
become a more compact city by accommodating approximately half of its
forecast new households within the established metropolitan area, and to
reduce the proportion of new households that are to be accommodated in
new suburbs on its fringes. It is intended that Melbourne’s urban expansion
into areas that are presently non urban is to be limited. A more compact
metropolitan area would make better use of the physical and community
infrastructure already available in urban areas, particularly public transport
and provide a wider range of housing to meet changing housing needs.
33
Activity centres are identified as the preferred locations for more intensive
commercial and residential development. Intensive use and development is
encouraged to locate into activity centres so they can be highly accessible
and to facilitate synergies amongst businesses. Commercial developments
outside activity centres, including ribbon development along highways, are
generally discouraged.
34
Policy encourages the environment, including remnant vegetation,
waterways and significant landscapes, to be protected from inappropriate
development. Land uses along main roads should be managed so
development does not interfere or detract from the efficient operation of the
main road network.
35
We also have to consider the local planning policy framework, the Upper
Yarra Valley and Dandenong Ranges Regional Strategy Plan 1996 and
Council’s Vision 2020 Community Plan. We find the following policy
directions to be relevant:

The region is highly important for Victoria and nationally.

The beauty of its landscapes and intrinsic value of its vegetation are
the region’s outstanding features and these should be maintained.

Yarra Ranges has both urban and rural roles. Tecoma is included in
the Foothills Residential Area that is characterised as a residential area
comprising larger lots with an extensive tree canopy. These areas are
distinguished from the Shire’s rural areas.
VCAT Reference No. P3933/2011
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36

Commercial centres are the preferred locations for retail and business
activities, particularly restaurants. Commercial centres should provide
a range of retail and business facilities that meet the needs of local
residents and tourists visiting the municipality.

Signage should achieve identification of businesses and not detract
from the streetscape.

Restaurants should be designed to protect the amenity of residents and
the environmental qualities of an area.
We are satisfied that this proposal is generally consistent with the entirety
of the State and local planning policy framework. We find that it complies
with the following specific policy directions:

The development before us is a modest sized convenience restaurant
located in a Business 1 Zone and within an established activity centre.

It is to be located within the ‘urban corridor’ between Ferntree Gully
and Belgrave identified in the policy framework rather than the rural
areas.

It will contribute to the range of services available within an
established activity centre. It will also contribute to the consolidation
of established centres. It will provide convenience services to both
local residents and visitors to the area.

It would not contribute to ribbon development along major highways,
or propose a standalone restaurant within an area of scenic beauty.

It will enable some synergies to arise with other businesses in Tecoma
(and the wider region) that would be to their mutual benefit, hence
supporting economic outcomes identified in clause 17.

It would provide employment opportunities for local people,
particularly young people.

It would provide a new building of modern contemporary design.
Would the height, massing and appearance of the development fit into the
Tecoma commercial centre?
37
In this section we assess the building’s fit into Tecoma’s commercial
streetscape. We also assess the proposed landscaping, fencing and signage.
38
We begin by examining the planning policy framework to identify its urban
design directions. We note that the State planning policy framework
strongly encourages new built form to be based on a careful analysis of its
context. A new development should be respectful of its context and make a
positive contribution to the place and the public realm. Replication and
mimicry are not encouraged; the new should be distinguishable from the old
and make its own contribution to the place. Policy discourages a building to
pretend that it is from another period.
VCAT Reference No. P3933/2011
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39
Clause 21.06 as it relates to commercial centres encourages proper siting
and layout to achieve well designed and integrated development. Strategies
include:

Encourage the siting and design of development to respond to the
characteristics of the site and the surrounding area.

Design new development to be compatible with the established
character and built form or with surrounding commercial
development.

Minimise the intrusion of traffic associated with the centre into
adjoining streets.
40
The setbacks, height, site coverage, design and scale of proposed
commercial development should respond to the prevailing built form of the
centre. It should protect the amenity of adjoining dwellings by appropriate
building design, setbacks and landscaping3. A new building should also
provide landscaping that fits with the prevailing landscaping in the centre4.
41
Tecoma is defined within Council’s Vision 2020 Community Plan as a
street based activity centre. Their preferred character is:
Street based activity centres will be distinctive for their fine grain built
form, with ground floor activity fronting traditional streets and
pedestrian activity concentrated along these streets. A backdrop of
vegetation will be visible behind the centre and views of the
surrounding hills will be seen from numerous vantage points in public
places.
42
The document includes design guidelines relating to matters such as
weather protection, continuous frontages, glazing, materials and fine grain
facades. We note that this document is outside the Scheme and it has very
limited weight in this matter.
43
We think that the general context of planning policy, the absence of
planning overlays that specify design requirements, and the site’s location
at the edge of the commercial centre on a large lot provides considerable
flexibility to design a building that is different and stands apart from the
fine grain commercial core.
44
Mr Williams and other submitters pressed us to conclude that Tecoma has a
particular character and ambience that distinguishes it from the established
suburbs to the west of Ferntree Gully. The crucial difference put to us is the
presence of the treed canopy in long distant views of the nearby hills, and
the extensive tree canopy through the nearby residential suburb that abuts
the Tecoma commercial centre.
45
We concur with Mr Williams that the residential areas surrounding the
Tecoma commercial centre have a character distinctly different to most of
3
4
Clause 21.06
Clause 21.07
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suburban Melbourne. In our view, this character is not the one to guide our
assessment of this proposal. It is the character of the commercial centre
along Burwood Highway that is the context into which this development
should respectfully respond and fit.
46
Our assessment of the centre’s context and prevailing form is that it
comprises buildings that are single storey to Burwood Highway and one
and two storeys at their rear. The front facades are generally built to the
front title boundary. Roofs are pitched. Car parking is provided to the rear
of the properties. Whilst the frontages of each business may be relatively
small, the centre comprises blocks of solid built form that extend unbroken
from one street corner to the next. There is considerable advertising, much
of it eclectic in form and style. Materials and colours are ‘earthy’ greens
and browns. Weather protection is provided by verandahs over most of the
footpath, supported by posts. There is limited landscaping and street
furniture along the footpath. The prevailing built form is modest in style
and architectural merit.
47
The responsible authority accepted in its submissions that the proposed
height of the convenience restaurant would be acceptable and the canopies
would provide weather protection and modulation to the front façade. Mr
Radisich concurred and opined that it would comprise ‘a good standard of
architecture’.
48
However, the responsible authority and many residents considered that the
scale, massing and design of the development fail to fit its context. The
residents submitted that the design fails to respect the character of the
centre, as detailed in Ms Dealy’s submission. They were critical of the
width of the frontage, the flat roof, blank walls on the side elevations, the
materials and its orientation to the rear.
49
We are not persuaded that the massing, height and form of the building
would be so out of character with the commercial centre to be incongruous
or uncomfortable. We find that the proposed building is respectful of the
prevailing built form, without resorting to replication and mimicry. We
consider that whilst it would have a relatively wide frontage of 25 metres to
Burwood Highway, this would be acceptable, as the centre comprises
blocks of continuous built form much longer than this one building. The
front façade of this building would have sufficient articulation and variance
to avoid it being seen as a box. We consider that its mass would be further
articulated by a palette of various materials, colours and glazing. It is also
at the edge of the commercial centre and hence does not intrude into or
break up the fine grain frontages seen within the commercial core. It stands
separate from the commercial core, and is within an area that contains
relatively robust buildings. It has sufficient features for it to be part of the
commercial core, but it can be distinguished from it.
50
The building has been sited close to the street frontage to activate the street.
A small setback facilitates pedestrian access at grades suitable for people
VCAT Reference No. P3933/2011
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with limited mobility. These setbacks are consistent with the existing
buildings on the land and at No.1527 Burwood Highway to the west. The
proposed setback provides some landscaping opportunities to enhance the
public realm. The setback and the entry and glazing in the front façade
allow surveillance between the street and the building’s interior, promoting
a sense of safety and connection. This would be enhanced by the location of
the play area to the building’s east side, with views to the street.
51
The site coverage would be no greater than the existing buildings and is
very low for a commercial site. The location of car parking to the rear is
consistent with other developments within the centre and with planning
policy.
52
We agree with submissions that the façade to Burwood Highway can be
further improved to strengthen its integration with the established core and
to better respond to local policy.
53
The proposed planters impede a visual connection between the public realm
and the entry to McDonald’s. We think they should be removed as far as
possible, and the 3 metre setback designed with paving and materials that
would visually integrate that area with the public footpath.
54
We generally support the proposed canopy which comprises three distinct
sections at slightly different heights. This variance in the horizontal lines
reflects the rise in the land along the frontage and emphasises the entry to
the convenience restaurant. We think its separation into three sections also
prevents the canopy being an unduly imposing structure in the streetscape.
However we think that it is too large and it should be modified. We concur
with the residents that with a width of 5.5 metres it is excessive and
dominant. We think that its width to a south facing façade is likely to make
that entry dark and uninviting. We propose that the canopy be reduced to a
width of 3 metres and it should comprise a more muted colour consistent
with the ochres, browns or greens of the Hills.
55
We note that the canopy is to be supported by columns spaced at 3 metre
intervals. We support this built form as it provides a visual link to the
commercial core. The vertical columns should be emphasised through
colour and style so they balance the width of the building by providing
dominant vertical lines to the street. The fine spacing of the columns would
also provide another reference to the commercial centre to the east.
56
The proposed glazing in the south elevation would be a smaller proportion
of its façade than in the frontages east of Sandells Road. We accept that this
reflects the internal design of public amenities and storage areas. The
storage facilities are integrated with the unloading and food preparation
areas and there is little scope to change these. We also think there is limited
scope to relocate the public amenities, as any changes would compromise
the integration of the dining area, the McCafe area and the outdoor terrace.
We are unable to identify opportunities for additional glazing in the south
façade without requiring a substantial reconfiguration of the internal floor
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plan, which we consider would be unreasonable to achieve a relatively
limited improvement.
57
Removing the planters, providing paving integrated with the public footpath
and reducing the canopy will better integrate the south façade with the street
and lessen the perception that it is a standalone building disconnected from
the ‘main street’.
58
With regard to the blank side elevations, we consider that such an outcome
is inevitable. A building that has to provide loading and storage areas, as
well as staff training and staff change areas will necessarily have blank
facades. These will usually be to a side or rear elevation. Whilst we would
prefer the loading and terrace areas be swapped, so the edge to the driveway
is more active, we consider this to be impractical due to the operation of the
storage/delivery areas.
59
Nevertheless, we concur with Mr McGurn and the residents that the west
elevation can be improved with the application of alternate materials such
as timber that would break up its uniformity and visual bulk.
60
We think in time the blank wall to the east will eventually be obscured by a
building on the presently vacant adjoining lot and this elevation will not
form part of the public realm. Until this happens the proposed landscaping
and outdoor terrace and play area activate this elevation and make it
acceptable.
61
The building was criticised for having a flat roof, as this would be different
from the triangular, pitched roofs in the commercial centre. We consider
that requiring this building to have a pitched roof, or a roof with a row of
smaller pitched forms would constitute mimicry that does a disservice to the
prevailing Tecoma commercial core and this development. It would not
make it blend in or better integrated. We consider it would be recognised as
being an imitation, and it would be rightly criticised. We think its simple,
rectilinear forms provide visual references to the commercial core, but also
allow it to be identified as a new, different place.
62
We also note that the flat roof is appropriate to retain views from Burwood
Highway to the National Park and the treed hills that provide the backdrop
to the town. We think a low, flat built form that retains these iconic views is
more important than replicating the built form of the existing shops,
particularly as they have no recognised architectural significance.
63
Some submitters considered that at 8.8 metres the height of the north (rear)
facade would be excessive as it would be considerably greater than the rear
elevation of the existing buildings with their pitched roofs.
64
We are satisfied that the north façade would have limited visual presence to
the areas to its north. The building would be between 32 metres and 66
metres from adjoining dwellings. Views by the immediate neighbours of the
north elevation would be screened by the proposed acoustic fence and the
existing and proposed landscaping. With regard to views from dwellinsg
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more distant from the site, we consider that the existing dense tree canopy
in the properties and street reserves to the north will substantially screen
views of the proposed building. We consider it would have little visibility
from properties to its north, particularly from Sandells Road, Alec Street or
Sophia Grove. The north façade is also articulated and variable and hence
would be perceived as a series of built forms rather than one sheer,
unbroken façade.
65
We think it will be a minimal and small presence when viewed from the
public realm and within the car park. However, we think that the vertical
blades coloured yellow would be unduly prominent and the colour should
be more muted.
66
We concur with the residents that some additional glazing could be
included at the western end of the north elevation. We consider the
additional glazing could be provided above the internal stairs. Such glazing
would also improve the internal amenity of the stairwell, food preparation
areas and food collection booth.
67
Overall we think that this building would have sufficient design cues to be a
respectful fit into the streetscape of the commercial centre. With some
further modifications to the Burwood Highway façade and limited changes
to the west and north elevations, we find that its built form would fit well
into the streetscape and that it generally complies with planning policy.
Would the landscaping and fencing be a suitable interface to dwellings?
68
Mr Galbraith reviewed the existing vegetation. He found that much of the
existing vegetation has limited retention value. The Acacia melanoxylon
(Blackwoods) on the east and north boundaries can be retained. The Liquid
Amber in the centre of the site is in poor health, but he concluded that it
could be retained.
69
A Landscape Concept Plan has been prepared for the development. It
accords with Mr Galbraith’s recommendations and proposes to retain most
of the Blackwoods and the Liquid Amber tree.
70
The Liquid Amber is located in the primary pedestrian pathway between the
car park and the stairs to the restaurant. It would be subject to extensive foot
traffic and would have seating close to the trunk.
71
We are concerned that the Liquid Amber is in poor health and the tree root
zone would be subject to substantial wear and compression. We
acknowledge that in the short term it is preferable to retain a tree that is tall
and has some presence within the site. However, we think that it is
preferable that high quality landscaping be implemented that will serve the
development and community for some time.
72
Consequently we think it is preferable that the Liquid Amber be replaced
with a native canopy tree that will prosper in this robust environment and
also complement the landscaping generally seen in the centre and in the
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abutting residential precinct to the north. We are also concerned that the
tree root zone be fully protected and the pedestrian traffic be guided to
prevent people walking across that area.
73
The Blackwoods on the northern and eastern boundaries would be retained
and complemented by additional Blackwoods and Lightwoods. These
would grow to 12 metres and 5 metres respectively, which we consider
would provide adequate screening from views to the north. A Eucalyptus
Meliodora is to be located at the northeast corner of the site adjacent to
No.2/89 Sandells Road and this would also provide additional screening
from the north.
74
Landscaping along the boundary to Dwelling 2/89 Sandells Road would
comprise Lightwoods within a 2 metre wide garden bed. The landscaping
would be adjacent to a 2.4 metre fence. The base of the fence would be
approximately 0.5 metre below the level of the car parking bays.
75
We are satisfied that the landscaping adjacent to No.2/89 Sandells Road
would provide considerable screening of views from that adjoining
dwelling. It would also screen views of the fence from the car park. We
regard the landscaping along this boundary as satisfactory.
76
The Landscape Concept Plan also proposes an ‘avenue’ of seven Melia
azederach ‘elite (White Cedars) along the drive through queue. These
would be planted at a height of 2.5 metres and grow to approximately 10
metres height. They would be complemented by ground level grasses.
77
The drive through and the car park would be a robust environment. The
trees will be close to passing vehicles. We are not confident that relatively
large trees would be successful. It is our view that the landscaping plan
should include trees and medium height vegetation that would have a tall
and slender canopy to minimise damage from passing vehicles. They also
need to be proven to prosper in narrow garden beds.
78
Tree 2 is shown on the landscape plan as being retained and complemented
by two eucalyptus radiata. We note that the arborist categorised it as being
in poor condition and recommended that it be removed. We think that the
approved landscape plan should include a replacement for tree 2.
79
Ms Elizabeth raised through cross examination of Mr Armstrong whether
some of the proposed landscape species would be invasive weeds that could
spread into environmentally sensitive areas. The invasion and spread of
weeds is a serious issue in this region, and the proposed landscaping should
not contribute to this problem. In cross examination, Mr Armstrong
emphasised that the species selected in the landscape concept plan have
been discussed with the responsible authority and carefully chosen. He
opined none of the proposed species would be weed species.
80
We are generally satisfied with the Landscape Concept Plan. We think it
appropriate to adopt the usual planning process whereby approval in general
is provided, and detailed outstanding matters identified in our decision can
VCAT Reference No. P3933/2011
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be addressed through the approval of amended plans to the satisfaction of
the responsible authority. We will include a permit condition to specifically
require the responsible authority to assess the retention or replacement of
the Liquid Amber and tree 2, the inclusion only of species that pose no
threat of weed invasion, and to review the species adjacent to the drive
through area.
Would the signage be acceptable?
81
It is proposed to erect 31 signs with a total area of 47.7 square metres. A
permit is required for the signage as it exceeds a total area of 8 square
metres.
82
The responsible authority and the respondents opined that the number of
signs and their total area would be excessive. They relied on the evidence of
Dr Clark that the signage would generate excessive illumination that would
adversely affect the amenity of adjoining and nearby residents. They also
opined that the signage would make the convenience restaurant highly
visible at night from dwellings in the surrounding residential areas.
83
The residents proposed that the signage could be made more acceptable by
the deletion of the larger signs, particularly the flagpoles and banners, the
large sign on the north façade, the welcome signage at the entry on the
western side and the west facing ‘McDonald’s’. The permit applicant noted
that it had no objection to the north facing wall sign being switched off after
10.00pm.
84
We are guided by the Scheme and by the signage presently within the
commercial centre. The site is within a Business 1 zone and the decision
guidelines we must apply are set out in clause 52.05. In our view signage in
a Business 1 zone is expected to have robust presence and to be seen. It is to
do more than merely identify and direct people. This arises from the
Business 1 zone being one of ‘minimal limitation’5 and the purpose of
signage in such an area is:
to provide for identification and promotion signs and signs that add
vitality and colour to business areas6.
85
5
6
Tecoma’s commercial centre, including the review site presently has a
relatively high level of signage, including many signs above the verandahs
of the shops. There is an existing sign (approximately 5 metres by 3 metres)
at the entry to the car park. The petrol station opposite has an illuminated
pole sign and other signage. Much of the existing signage throughout the
commercial centre is eclectic in style and colours, not illuminated and aged.
From a streetscape viewpoint, the existing signage within the commercial
centre does not provide particular cues or design principles that necessarily
guide the size, scale or extent of signage appropriate for the review site.
Clause 52.05-7
Clause 52.05-7
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86
We consider the proposed signage in two parts, the presentation to
Burwood Highway, and the signage within the car park and drive through.
87
We think in general the proposed signage to Burwood Highway is of high
quality. It is stylish, contemporary and muted. We think much of the
signage is relatively understated in size, relative to the height and massing
of the elevations.
88
With regard to the decision guidelines at clause 52.05 we find that the
signage to Burwood Highway is acceptable as it:

Would be consistent with and make a positive contribution to the
character of the commercial centre.

Would have no impacts or be prominent in important views and vistas
from the commercial centre to the backdrop of the hills.

Would be proportional and modest given the size of the facades on
which it is to be located.

Would not have any adverse impacts on road safety.
89
We consider that much of the signage at the rear of the building would have
little impact on the Burwood Highway streetscape or traffic safety. We
therefore review the signage at the rear of the building in terms of whether
it possibly causes adverse amenity impacts on adjoining and nearby
properties.
90
We think the acoustic fence and the proposed landscaping would screen
much of the signage from the nearby dwellings. With regard to the decision
guidelines of clause 52.05 we think the signage within the car park is
largely acceptable as it:
91

Is necessary to facilitate the safe and efficient operations of the car
park and drive through facility.

Would be modest in terms of the area of the car park within which it is
to be located.

With appropriate baffling, it would not be excessively illuminated so
that it would adversely impact on adjoining properties due to
screening provided by the acoustic fence and the landscaping.
Notwithstanding the above general support for the proposed signage, we
concur with the residents that the number of signs should be reduced. There
is some duplication of the larger signs and we think the number of signs
exceeds the signage generally provided for other commercial premises in
Tecoma. We think the following signage should be deleted as it largely
duplicates other signs and would add to the extent of night illumination.
The signs that we will require to be deleted are:

S13 – flagpoles and banners (should be replaced by landscaping).

S9D – 2.3metre by 0.7 metre directional sign (could be replaced by
smaller non illuminated directional sign).
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
Delete either 9A or 9B (2.3 metres by 0.7 metre) at entry to the access
aisle to Burwood Highway as these signs duplicate.

Replace Sign S2B on the west elevation with S4B.

Delete S4B from the blade on the west elevation.
92
We consider the dimensions and content of sign S4A to be appropriate,
however, we consider its colour to be overly prominent. We consider a
more muted colour should be employed. Given the height, size and
illumination of the large north facing ‘McDonald’s’ sign, we concur with
the residents that it would generate a strong illumination into the adjoining
residential areas, and we will direct that the illumination be turned off
between 10.00pm and 7.00am.
93
With these modifications we consider the proposed signage would comply
with the decision guidelines of the Scheme, make a positive contribution to
the streetscape and not adversely impact the site’s neighbours.
Would the access, parking and loading arrangements be satisfactory?
94
In this section of our reasons we assess the arrangements for vehicle and
pedestrian access, parking, disabled parking, loading, internal circulation
and bicycle parking. We also consider the integration of the review site with
the access and car parking on adjoining commercial sites.
Would adequate car parking be provided?
95
We turn firstly to the provision of car parking. The convenience restaurant
would provide 56 seats within the dining room, 28 seats in a terrace and 6
seats in the playground (we were advised these would be benches rather
than chairs at a table), a total of 90 seats. Clause 52.06 of the Scheme
requires this use to provide 0.3 parking spaces per patron. The application
plans show parking for 28 vehicles. The Landscape Concept Plan shows
parking for 26 vehicles.
96
Mr Hunt submitted that the parking rate should be applied only to the
internal seats, generating a demand for 17 spaces. Mr de Young applied the
rate to indoor and external seating, but not the 6 seats associated with the
play area. He concluded that the restaurant should provide 25 spaces.
97
Both traffic experts opined that the external terrace seating would be likely
to be used on more pleasant days, and the number of people inside the
restaurant would be correspondingly lower. Hence the actual seating
capacity used to estimate car parking should be closer to 56 seats. Mr Hunt
also opined that parking surveys of McDonald’s restaurants indicate they
generate a parking demand of 0.15 to 0.3 car parking spaces per internal
seat. Taking the most conservative (highest) demand that the indoor and the
terrace areas are both fully occupied, both traffic experts opined that the
provision of 26 spaces satisfies the requirements of clause 52.06, and would
VCAT Reference No. P3933/2011
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be consistent with recorded parking demands at other McDonald’s
restaurants.
98
We accept the applicant’s propositions that the seats in the play area would
be occupied by people already in the restaurant and would be unlikely to
increase the overall demand for car parking spaces. We are also satisfied
that the provision of 26 car parking spaces meets the requirements of clause
52.06 of the Scheme. We find that no planning permission is required to
waive or reduce the provision of car parking.
99
We also accept the evidence of the traffic experts and the responsible
authority that the layout of the internal aisles and car parking spaces
complies with clause 52.06 of the Scheme, and no permission is required to
vary the design requirements set out in the Scheme. We address the
acceptability of the parking arrangements due to the site’s slope below.
Would the proposed disabled parking space be acceptable?
100 A parking space for disabled motorists is to be provided at the southwest
end of the site, adjacent to the site’s entry from Burwood Highway. It
would be located adjacent to the north wall of the loading bay.
101 Resident submitters were highly critical of the location and design of this
parking space. They opined it would be on a slope that would make it
difficult for people with a disability to access their vehicles. Its location
close to the site’s entry would make entering and leaving the space
dangerous as sightlines would be inadequate.
102 The permit applicant and the traffic experts opined that this location is the
best option on the site and that it complies with the Scheme and relevant
Australian Standards. Importantly it provides convenient access to the
restaurant via the path in the 3 metre front setback. Placing the disabled
parking space at the north end of the site would require a disabled person(s)
to navigate their way up the driveway, or would require lifts or substantial
ramps to be included in the rear landscape areas.
103 Revised plans and cross sections were tabled for information towards the
completion of the hearing. These plans show the proposed slope of the
disabled parking space. It would have a change of grade of 100mm from the
north to the south side of the space. The adjoining area into which people
would get in and out of vehicles would have a change of grade of another
100mm. We think that this is satisfactory on this site.
104 We concur with residents that reversing from the space into the access aisle
would be difficult as sightlines would be obscured by the loading bay wall.
Whilst the bay is offset from the wall by 0.5 metre, we agree it would be
difficult to see an oncoming northbound vehicle. We think that a splay in
the loading bay wall should be provided. We have no difficulty with
sightlines to Burwood Highway as a driver would have clear views of
vehicles entering the site.
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105 We concur with the residents that locating a disabled parking bay on
Burwood Highway would not be satisfactory due to the traffic volumes,
speed and the narrow width of lanes.
106 We find that whilst the proposed location of the disabled car parking space
is less than ideal, it is acceptable as required by the Scheme7. In our view it
will be level and proximate to an entry to the restaurant via a level pathway.
It will also be removed from the more congested areas of the car park,
particularly the intersection of the drive through and egress aisle. Its
relocation to the northern part of the site would require excessive ramps to
provide entry to the restaurant. These would have adverse urban design and
landscaping outcomes. It would also place the disabled person in the more
congested part of the car park. On balance we are satisfied with the location
and design of the disabled car parking space, subject to the provision of
appropriate levels and a splay to improve sightlines. These will be required
through permit conditions.
Pedestrian and vehicle circulation within the site
Would the vehicle circulation arrangements be acceptable?
107 The responsible authority and many of the respondents considered that the
internal drive through arrangements would be unsatisfactory. They were
also highly critical of the lack of separation of pedestrians and vehicles.
108 With regard to the internal vehicle circulation, a vehicle would travel the
full length of the site, complete a ‘U’ turn to join the drive through queue or
to access car parking spaces. A customer in the drive through line would
drive southward for much of the review site to the food order and food
collection booths. In so doing, the route crosses the main east-west egress
route to Sandells Road. In combination with the slope, it makes for a
potentially complex arrangement.
109 We think most drivers would complete the ‘U’ loop through the northern
part of the site and avoid the intersection. It provides access to most of the
parking and to the drive through. Inevitably a few drivers will divert
through the intersection to leave the site via Sandells Road. This is likely to
create an infrequent but significant potential conflict point with drivers in
the drive through. We think the potential conflict would be high as we
envisage that a relatively high proportion of visitors will not be familiar
with the site, and/or will be focussed on navigating the drive through and
ordering food. The slope of the site adds to the difficulties.
110 We think several options are available to diminish the potential conflict.
Line marking with a chevron, rumble strips or a raised pavement would
alert drivers that this is a potential conflict point. Signage to give priority to
the access aisle ahead of the drive through is necessary. We think possible
7
Clause 65
VCAT Reference No. P3933/2011
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conflicts at the intersection of the east-west aisle to Sandells Road and the
drive through are likely to be rare as most people will want to travel along
the full loop. we also think it will be a low speed environment, and people
will be able to avoid accidents. We think that with suitable warning devices,
the intersection would be made safe.
111 A longer term option would be to close the east-west access road adjacent
to the drive through so all drivers are required to use the ‘U’ loop through
the car park. The access aisle at this point could be used for additional
landscaping, carefully installed so it does not minimise the reversing
manoeuvres to the loading bay. We acknowledge that this would be
contrary to the easements and hence raise it as a suggestion for further
consideration rather than imposing it and making complex arrangements
between landowners more intricate.
Would the development be safe and convenient for pedestrians?
112 Many respondents were concerned with potential conflict between the
pedestrians and vehicles in the car park and in the access aisle adjacent to
the loading bay. They submitted that dedicated pedestrian footpaths are
required.
113 Mr Hunt and Mr de Young opined that shared pedestrian and vehicle
movement areas are common in commercial car parks, including larger
supermarkets and convenience restaurants. They opined that dedicated
pedestrian paths would be unusual. We concur with the traffic engineers’
advice that this is a relatively small car park and it is common for cars and
pedestrians to share the car park in convenience restaurants without
dedicated footpaths. We note from the Nearmap photographs of eight
McDonald’s restaurants provided by the permit applicant at the hearing that
dedicated pedestrian paths are not provided, even on sites that appear more
cramped or complex than this.
114 The two significant vehicle-pedestrian conflict points would arise when
people cross the east-west access aisle on their way to the stairs to the
outdoor terrace, and when people walk adjacent to the loading bay. We note
from the Nearmap photographs that other McDonald’s car parks have
extensive chevron line marking to guide pedestrians through their car parks
to building entries and to alert motorists of those pedestrian movements.
We think that line marking should be provided where pedestrians have to
cross over the east-west car aisle to access the stairs to the outdoor terrace.
115 With regard to the pedestrian movements adjacent to the loading bay, we
note that whilst it would constantly carry vehicles, it is unlikely to be a
preferred pedestrian route. Most of the parking is at the rear of the site and
people would be most likely to enter and leave the building from the north
entry rather than walk some distance to the entry facing Burwood Highway.
116 However we acknowledge that walking to Burwood Highway is likely to be
a preferred route for a small proportion of people such as those with prams
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or people unable to readily access via the stairs to the north. Given there
will be some people who will need to walk along the aisle to Burwood
Highway, we consider that it is appropriate to ensure their safety and
convenience. We note that a footpath is provided on the west side of the car
parking on No.1527 Burwood Highway, hence an alternate to using the
aisle is available. We also note that most traffic leaving the site is likely to
exit via Sandells Road rather than the southbound lane adjacent to the
loading bay. We are persuaded that the probability of conflict is very low.
Nevertheless, we consider that speed reduction devices should be installed
in the southbound lane of the access aisle adjacent to the loading bay to
maximise pedestrian safety. However, we do not consider the likely volume
of pedestrian or vehicle traffic warrants a dedicated pedestrian path, given
that it would require a substantial redesign of the building.
117 We are particularly concerned with pedestrian safety at the Sandells Road
exit. We observed that Sandells Road is used by school children and
sightlines are constrained. We consider that safety devices should be
installed at the Sandells Road exit. However, as the exit is not part of the
review site, we cannot lawfully impose conditions on the permit applicant
to complete works on another property, without the consent of the owner of
that land. We will impose a condition that speed reduction/warning devices
be installed at the Sandells Road exit with the consent of the relevant
landowner.
Would the slope of the car park and the customer ordering devices be
acceptable?
118 The new restaurant would utilise the existing car park largely as it now
exists. The permit applicant opined that except for the southern sections of
the site, there would be limited cut and fill. The existing slope varies across
the site from 1:8 to 1:12 (8.3% to 12.5%), exceeding the Australian
Standard of 1:16 or 6.25%. The resident submitters considered that the
slope of the car park would make the car park unsafe.
119 The traffic experts and the responsible authority consider that the slope is
acceptable. Mr de Young noted that the existing car park has been used
without difficulty for a long period. Even if the car park is used by a greater
proportion of people (tourists) unused to slopes, Mr de Young and Mr Hunt
opined that the slopes would be within acceptable design standards and
driving conditions.
120 We acknowledge that the slope is awkward, and some greater care will need
to be exercised by drivers and pedestrians. On balance we are satisfied that
it would be acceptable fort eh following reasons. Firstly Council’s
engineers consider it to be satisfactory and they are experienced with
numerous similar sites and situations throughout this municipality.
Secondly the two experts are satisfied and we are required to give weight to
their expertise and responses to cross examination during the hearing.
Thirdly, it is an existing site condition, and it is used by many people for a
VCAT Reference No. P3933/2011
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wide range of trips, including for school drop off and pick with young
children. If it is particularly dangerous, we think it would not be so used.
We think that local residents would be relatively experienced using sloping
sites and this car park would present limited difficulties for many local
residents. If it did, we are sure we would have been so advised. Finally,
reducing the slope would require considerable cut and fill, including
substantial retaining walls to its north and east that would present
significant visual bulk to these interfaces. We consider that requiring
extensive cut and fill within the car park would be a poor urban design
outcome and would probably diminish its integration with the adjoining car
parks.
121 For the above reasons we are satisfied that the slope of the car park would
be acceptable.
Would the loading bay be satisfactory?
122 The loading bay is to be located on the west side of the building. Trucks
would enter the site from Burwood Highway, pass the loading bay, and then
reverse up the slope into the bay. Trucks would leave the loading bay in a
forward direction and exit the site via Sandells Road. Trucks would be
limited to 12.8 metre length vehicles, and most would be no more than 8.8
metres. There would be a small number of deliveries using the larger
vehicles.
123 We are satisfied that the loading bay meets the requirements of clause 52.07
with respect to clearance height, width, length and area.
124 Many respondents consider the access to the loading bay to be
unsatisfactory, due to the slope of the site near Burwood Highway. There
were also concerns about the grade within the loading bay.
125 Plans were tabled through the hearing that clarified the slope of the loading
bay and its access. It would have an internal gradient of 1:25 where the
vehicle stops to be unloaded, and a gradient of 1:10 where the vehicle
reverses into the loading area. Both Mr Hunt and Mr de Young thought that
the reversing movement into the loading area and the grades would be
appropriate. They also thought egress to Sandells Road to be satisfactory.
We note that Council’s traffic engineers also considered these arrangements
to be acceptable. We have no basis to refute their expert opinion.
126 Access and egress to the loading bay from the adjoining aisle would require
the trucks to move between the aisle and the reversing lane into the loading
bay. We note that the gradient of the loading bay access ramp would be
largely consistent with the gradient of the adjoining access aisle, enabling
the reversing truck to readily cross over from the aisle to the loading bay
area. After carefully examining the cross sections provided by the permit
applicant at the hearing, we are satisfied that the truck reversing
arrangements would be acceptable.
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Would adequate bicycle parking be provided?
127 It is proposed to provide 4 bicycle parking spaces for staff and 2 for
visitors. This is based on the rate of one space per 25sqm floor area
available to the public. This is estimated to be the internal floor area with 56
seats. We are satisfied with this requirement as we consider that for most of
the time, patrons will use the indoor seats, or will use the outdoor seats in
preference to the indoor seats so the net effect is that the area available to
the public is no greater than the internal area. Hence the indoor space is a
reasonable estimate of staffing requirements for most of the time the
restaurant would be operating.
128 The bicycle parking for staff is proposed to be provided at the rear of the
loading bay. We concur with the residents that this would be unsatisfactory
and a dedicated storage area should be provided. We think this is best
placed under the building accessed from the north elevation. We do not
support its provision within the landscape area as we think it would limit
the area available for landscaping and detract from its effectiveness.
129 Residents opined that McDonald’s employs a relatively high number of
young staff who are likely to ride a bicycle to work. It was put that staff
showers should be provided to encourage them to ride to work. We are
guided by the Planning Scheme. Clause 52.34 provides that employee
showers are required only when the number of employee bicycle spaces
exceeds five. We are satisfied that from a Planning Scheme perspective no
shower facilities are required in this facility.
Should the parking be integrated with No.1527 Burwood Highway?
130 Twelve car parking spaces are provided on the west side of the access road
for the use of the five commercial premises on that land. Other spaces are
located at the rear of the land. Mr Hall owns the land and was concerned
that these spaces, particularly the twelve adjacent to the access aisle, would
be extensively used by McDonald’s customers.
131 We concur with him and think that it is inevitable that these spaces would
be used by customers of this convenience restaurant. Although remote from
the entries to the restaurant compared to other parking spaces, they are the
first spaces that will be seen by motorists entering the site from Burwood
Highway.
132 We are not persuaded this is necessarily a problem or inappropriate. Firstly
the proposed restaurant provides sufficient car parking spaces on its own
site to meet its own car parking demand. It does not rely on the spaces on
Mr Hall’s property. Secondly, we think the total number of spaces on the
two properties would readily meet the overall parking demand as the much
of the customer demand generated by McDonald’s would be in the evenings
and weekends when most of the five commercial premises on Mt Hall’s
land would be closed. Furthermore, McDonald’s customers would tend to
stay for short periods, and spaces would turn over frequently. Mr Hall
VCAT Reference No. P3933/2011
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indicated that the parking spaces on his land presently have a low
occupancy rate. The current arrangements appear to operate well.
133 We consider that there is ample parking available to meet the demand
generated by Mr Hall’s properties. The car parking to the rear of all of the
commercial premises to the west of Sandells Road functions as an
integrated public car park. This enables it to efficiently meet a range of
parking demands and peaks. If each landowner isolates their parking, we
think the commercial premises west of Sandells Road as a whole would
suffer. We also note that the car park also serves the school drop off and
pickup trips and pushing this short term parking demand onto Burwood
Highway also would be undesirable. We acknowledge that there is a
potential problem and consider it is appropriate to require a car park
management plan to enable these matters to be resolved. Mr Hall’s concerns
regarding car parking are not sufficient to warrant the rejection of this
proposal.
How should the shared aisles be managed and maintained?
134 Mr Hall was also concerned with the management and maintenance of the
shared aisles and car parking areas. We have noted that the access aisles and
car park operate in an integrated manner, and it is in the interests of all the
landowners in this section of the Business 1 Zone that they continue to do
so. We think that the easements that form part of this application will
support and improve this integration.
135 We acknowledge that there are some outstanding management and
maintenance issues of the car parks to be resolved. We agree with Mr Hall
that McDonald’s would be likely to generate considerably more traffic than
is generated by the current uses on the review site or by Mr Halls’s tenants.
The anticipated traffic will include some heavy vehicles.
136 Whilst the fine detail of the management and maintenance arrangements are
best resolved between the landowners, we need to be confident that the
matters will be addressed. We have identified some pedestrian and traffic
safety issues that need to be resolved. We agree there are maintenance cost
sharing issues that need to be addressed. We therefore propose to include in
the permit a requirement that a parking and traffic management plan be
prepared and approved before the development commences. The plan
should address the provision and sharing of the costs of upgrading, speed
management devices and signage and the sharing of the maintenance
burden. As the plan has to be completed before the development
commences, we are confident that the permit applicant would use their best
endeavours to prepare the plan and attain the consent of the adjoining
landowners.
VCAT Reference No. P3933/2011
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Would the development impose adverse amenity impacts on its
neighbours and the commercial centre?
137 We now turn to the possible amenity impacts the development may have on
residential and other neighbours, as well as any impacts the development
may have on the wider commercial centre. The potential problems raised in
submissions concern traffic, public safety, noise, litter, illumination and the
hours of operation. We address these matters below.
Would the development create unreasonable traffic congestion or danger?
138 Burwood Highway narrows from two lanes each way west of the review
site to one lane each way adjacent to the site. There is some on-street
parking in front of the site and in front of the shops east of Sandells Road.
McNicol Road and Sandells Road intersect with Burwood Highway to the
east of the review site. The intersection with Sandells Road is signalised
and has dedicated turn lanes from Burwood Highway.
139 On the Friday evening peak hour Burwood Highway carries in the order of
1,200 vehicles per hour eastbound and 700 vehicles westbound. Sandells
Road carries in the order of 240 vehicles, and McNicol Road carries
approximately 190 vehicles.
140 The residents provided detailed traffic counts and DVD presentations in
support of their contention that at peak periods, particularly in the 4.30pm6.00pm period, Burwood Highway is heavily congested and eastbound
traffic experiences lengthy queues. Multiple turning movements in this
section of Burwood Highway compound traffic congestion. At the most
congested period it can take approximately 2 minutes to drive between
Main Street and Sandells Road. They say the congestion encourages drivers
to ‘rat-run’ through local streets. They say the additional traffic generated
by the convenience restaurant in the peak periods would compound to
unreasonable levels the existing traffic congestion and safety problems.
141 We heard evidence from two traffic experts. They provided separate and
independent advice, based on their own investigations. They agreed that
whilst Burwood Highway is congested on a Friday evening, the
development would have minimal impacts on the existing traffic levels and
travel times adjoining the site for the following reasons.
i
The commuter peak period on the road network is Friday afternoon
5.15pm to 6.15pm.
ii
Congestion on Burwood Highway is primarily caused by the reduction
of two lanes to one lane near Main Street to the east, and by the cycle
times of the traffic lights at Sandells Road.
iii
The SIDRA modelling indicates that all intersections near the site
presently operate at good to excellent levels.
iv
The convenience restaurant would generate between 162-172 vehicle
movements per hour depending on the methodology used.
VCAT Reference No. P3933/2011
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v
The peak period for McDonald’s would be Friday 6.00pm-7.00pm
‘just after’ the evening commuter peak period.
vi
Approximately one third of McDonald’s visitations are from people
already on the road, and a further one quarter of visitations are from
people who are already on the road network and who deviate to the
restaurant. Hence approximately 35% of trips would be new or
additional trips on the road network. This would be between 86 to 109
new trips in the busiest hour.
vii
However, assuming the worst case scenario whereby all trips are
additional trips, and the McDonald’s peak coincides with the
commuter peak, all intersections would continue to operate at very
good to excellent levels. The SIDRA modelling predicts that Burwood
Highway would operate at a fair level.
viii Queue lengths in Burwood Highway would increase by one vehicle,
and the proposed dedicated turn lane would accommodate the
predicted queues.
ix
Traffic on Sandells Road would increase from 229 to 245 vehicles in
the peak period, which is acceptable as much of this traffic would be
local residential traffic that would travel northward.
x
There is sufficient capacity on the road network to accommodate the
predicted traffic.
xi
The impact on traffic levels and congestion from this proposal would
be ‘minimal’.
142 Notwithstanding the above conclusion, the traffic experts recommended
some mitigation measures to ensure that the adjoining and nearby roads
continue to operate at acceptable levels. These measure include:

A right turn lane in Burwood Highway capable of accommodating two
vehicles.

Lengthening the right turn lane from Sandells Road to Burwood
Highway.

Banning right turns from the site into Burwood Highway.
143 In addition to the traffic experts who appeared at the hearing, the traffic
engineers of both the responsible authority and VicRoads had no objection
to the proposed development. Vicroads had no objection to the development
provided that a dedicated turning lane is installed from Burwood Highway
into the site and extended turning lanes are installed in Sandells Road8. We
also note that having considered a proposal for a large supermarket on the
review site that was expected to generate double the traffic per hour
compared to this McDonald’s restaurant, the Tribunal stated:
8
Shown on Plan JM12380-01 Issue 5 prepared by GTA Consultants
VCAT Reference No. P3933/2011
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It is fair to say that there was general agreement amongst the experts
and VicRoads that the traffic experts of the development can be
appropriately managed so as to not unacceptably affect either the
operation and efficiency of Burwood Highway, or the residential
amenity of adjoining streets. Given this general agreement we accept
this evidence9.
144 We participated one evening in the traffic congestion through Tecoma. We
acknowledge that the queues through Tecoma are lengthy and the traffic
moves slowly. The traffic matter before us is whether this proposal makes
the existing traffic congestion worse to a level that would be considered
unacceptable, even after the installation of traffic mitigation measures.
145 We appreciate the residents invested significant time and resources into
their analysis of the traffic conditions and impacts. On the evidence before
us which adopted highly conservative estimates and forecasts, and the we
can reach no other conclusion than this proposal would not make the
existing congestion so much worse that it becomes unreasonable or unsafe.
146 We are obliged to give significant weight to the advice from the two traffic
experts who are subject to extensive and rigorous cross examination. We
also give weight to the assessment of the professional road engineers in
Council and VicRoads. We acknowledge Ms Ferres Miles’ submissions
regarding the limitations of SIDRA modelling, but in the absence of expert
evidence that reached contrary conclusions, we are persuaded that such
modelling provides adequate assessment of the likely impacts of this
development, noting that it is the traffic modelling tool frequently used in
cases such as this.
147 The proposed development would generate in the order of an additional 110
new trips in the peak hour, or two car movements per minute. The SIDRA
modelling (typically used in cases such as this) indicates the nearby
intersections would continue to operate at good and very good levels of
service.
148 We think that the addition of one hundred or so additional trips per hour on
a road that carries 2,000 vehicles per hour will make little difference to its
operating conditions. We accept that in Friday afternoon peak period traffic
may be more congested. Traffic may take a few more seconds to travel
through Tecoma. Drivers may need to exercise a little more care and
patience. For all other times, we consider that the traffic generated by the
McDonald’s restaurant will make very little difference to the operation of
Burwood Highway and other roads.
149 Melbourne has experienced significant population growth in the past
decade, and in combination with urban consolidation policies, traffic
congestion is more noticeable throughout Melbourne. Intensive
development is occurring along most of Melbourne’s main roads. Existing
congestions levels, often greater than experienced in Tecoma, is not seen to
9
Freeman Tecoma Pty Ltd v Yarra Ranges SC [2009] VCAT 2457
VCAT Reference No. P3933/2011
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be an adequate reason to reject development proposals. Some additional
congestion in a peak period is not accepted by this Tribunal, Vicroads and
most Council’s to be a sufficient reason to reject a proposal that is
somewhat more intensive than has been operating on the land.
150 We are satisfied that the SIDRA analysis prepared by both traffic experts
provides an adequate estimate of the likely effects on traffic flows and
conditions caused by this proposal. We accept it is not as detailed as other
modelling exercises. In our view, this development is not so large or
intensive that a comprehensive micro level analysis is needed on every
intersection and driveway in proximity to this site for us to be satisfied that
this development would not cause catastrophic or substantial congestion.
Changing some of the SIDRA assumptions may change the estimated
impacts to some degree, but not to the extent that the level of service or
public safety declines from slightly more congested to being catastrophic.
151 With regard to Sandells Road, all parties agreed that it is a collector road
servicing the residential areas to the north and that it operates well at all
times. We are satisfied that the development would have little adverse
impact on queue lengths to Burwood Highway or traffic levels. We
consider that the mitigation works, being the lengthening of the right turn
lane into Burwood Highway, would alleviate any queuing that might arise
from the development. We will require that the mitigation works be
designed in consultation with the Department of Transport to ensure that
they do not constrain the bus service on that road.
152 McNicol Road is an important link between Belgrave and Tecoma. Its
intersection with Burwood Highway is awkward and drivers need to
exercise care and patience, particularly in the peak period. We have to
assess whether this development before us would make this intersection so
much worse. On the evidence and information before us, we cannot come to
that conclusion. The intersection will continue to operate to a reasonable
level. We are satisfied that this development will not make its operation
worse nor prejudice its possible signalisation or upgrade in the future.
153 We concur with the expert traffic evidence that eastbound Burwood
Highway peak hour traffic congestion is caused by both its configuration
near Main Road and the lights at Sandells Road. The present difficulties
have not been caused by this development. We must assess the impact of
the development, and are satisfied that impact will be minimal. We consider
that it is not reasonable that development in the Business 1 Zone in the
Tecoma commercial centre be indefinitely thwarted until solutions are
implemented, particularly as we consider that the impacts are considerably
less severe than seen elsewhere.
Would the development diminish public safety?
154 Many respondents opined that the convenience restaurant would experience
antisocial behaviours including graffiti, assaults and drugs. Concerns were
VCAT Reference No. P3933/2011
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expressed about safety near the train station. Some respondents cited
Australian news articles and overseas publications that asserted that
convenience restaurants have a high incidence of such events relative to
other commercial premises. The permit applicant rejected such assertions
and submitted that McDonalds convenience restaurants serve several
million meals per day throughout Australia, are ‘well maintained, well
managed and well designed’.
155 We are not persuaded that a McDonald’s restaurant is likely to lead to
increased social problems in Tecoma. No alcohol is served in their
premises. No gaming, music or entertainment occurs. In the context of the
high volume of business conducted in McDonald’s stores, some antisocial
behaviour may occur, but should not be exaggerated. Such behaviours also
occasionally occur in petrol stations, supermarkets and other public places
that are also open for long periods.
156 We refer again to the scope of our discretion. In our view patron behaviour
is part of the use of the land, which does not require planning permission.
There are no policies within the Scheme or expert evidence before us that
provides a basis to elevate these concerns to being determinative in this
case. To do so would be an error.
157 Nevertheless we think that the design of the building and the car park
should make the convenience restaurant a safe place. It would be
unacceptable that the building’s design, lighting and landscaping creates
public spaces that are unsafe.
158 We are satisfied that this proposal does not create unsafe spaces. The entries
are spacious and visible from the street. The dining area is under
surveillance from customer service counters. The car park is open and
would be illuminated, free of hidden areas such as retaining walls and under
casual surveillance from the outdoor terrace. The outdoor terrace would
also be open to casual surveillance from within and outside. We think it
would be significantly safer than the present dark and concealed spaces
hidden behind the existing buildings, with no lighting or surveillance.
159 The permit applicant would accept a permit condition that requires a Patron
Management Plan (PMP) to be prepared and approved by Council. A
Patron Management Plan could address matters such as continuous on-site
management, staff training to respond to inappropriate behaviours, hours of
operation of the COD and outdoor terrace, emergency procedures, 24 hour
complaint line, and a register of complaints that could be inspected at short
notice by the responsible authority.
160 We concur that this would be appropriate and we include it in the permit.
161 We noted in a previous section that some resident submissions opined that
this restaurant is inappropriate in an area of high bushfire risk. We
acknowledge that the restaurant operator has a duty of care to staff and
patrons on high fire risk days, and we think the PMP is the appropriate
VCAT Reference No. P3933/2011
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instrument to include procedures to respond to high bushfire risk periods,
noting that it would have these obligations under other legislation and its
general duty of care responsibilities.
Would the development generate unreasonable noise?
162 The responsible authority and many of the respondents were concerned that
noise from patrons of the convenience restaurant would detract from the
amenity of the area. This could be generated by people congregating on the
elevated north facing terrace and in the car park and street. Cars ‘hooning’
and accelerating, car doors opening and shutting and ordering meals in the
car park could also generate noise levels that would disturb neighbours.
Delivery and waste collection trucks, and the heating and cooling plant and
equipment can also be significant noise generators.
163 We note that the existing café and restaurant presently have north facing
outdoor terraces with no acoustic treatment. As far as we are aware, there
are no restrictions on their use by staff or patrons, including playing music.
164 The site has only two abutting sensitive interfaces, being the residential
dwellings at No.89 Sandells Road to the northeast and unused residential
land to the north. No.4-6 Sophia Grove interfaces to the northwest, but
those dwellings are separated by the commercial buildings and car park of
No.1527 Burwood Highway. It is proposed to install an acoustic fence
along the northern and eastern boundaries. The fence would be from 1.8
metres to 3 metres in height. The fence would comprise acoustic palings
and be angled inwards at the top.
165 Ms Hui provided expert acoustic evidence. She noted that noise generated
by delivery trucks, plant and equipment, and music and noise from the
customer operating devices (CODs) will be required to comply with SEPP
N-1 that applies to the Melbourne metropolitan area10. Ms Hui advised that
the installation of an acoustic fence on the northern and eastern boundaries,
the careful selection of plant and equipment, and limited times for delivery
and waste collection vehicles would enable the development to comply with
the SEPP N-1 limits. The Tribunal consistently accepts that compliance
with SEPP N-1 is adequate to ensure that noise from these sources does not
cause unreasonable offsite disturbance.
166 As the restaurant proposes to operate in the night time, sleep disturbance
must also be considered. The primary noise sources that would be likely to
disturb neighbours would be voices, opening and closing car doors and
accelerating vehicles in the car park. Voices and music on the outdoor
terrace could also generate noise that could disturb the neighbours.
167 There is no government legislation or policy that governs night time noise
emissions from convenience restaurants. Ms Hui recommended that the
following approach be applied to achieve an acceptable outcome:
10
State Environment Protection Policy (Control of Noise from Commerce, Industry and Trade) No.N-1
VCAT Reference No. P3933/2011
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
The peak noise from patrons and vehicles be measured and accepted
as the maximum noise levels (which is different to the noise levels
used in respect of SEPP N-1 that are averaged over a 30 minute
period).

The noise level to be achieved by below 50-55dBA within a bedroom
as this level is accepted as being unlikely to disturb sleep within the
room.

One or two noise events per night, with maximum internal noise levels
of 65-70dBA are also accepted as being unlikely to affect health and
well being.

Internal noise levels within dwellings with open windows are
generally 10dBA lower than the noise measured outside the window.
168 On the basis of the above approach, acoustic attenuation should aim to
achieve maximum noise levels of 60-65dBA outside the windows of
potentially affected dwellings.
169 Ms Hui provided estimates of the noise levels generated by patrons. The
estimated noise levels were based on recorded noise from many
McDonald’s restaurants and other venues (not McDonald’s) that serve
alcohol. She advised that the proposed acoustic fencing would limit noise
levels from voices at No.89 Sandells Road to the recommended noise
levels, except for ‘maximum shouting’ which is louder than the noise levels
generated by very rowdy patrons at a nightclub. Such behaviour and noise
levels would be very rare and have not been recorded at any McDonald’s
restaurant.
170 With regard to noise generated by the CODs, Ms Hui opined that they
would not generate noise levels that would cause problems to nearby
residents. They would be 13 metres from the eastern boundary and over 30
metres from the northern boundary, and the distances and the acoustic fence
would reduce noise levels to the required standards. Somewhat surprisingly,
Ms Hui suggested that patrons would potentially make more noise if they
have to obtain their meals from within the restaurant, rather than using the
drive through. People would generate noise by opening and shutting doors,
talking in the car park and starting their cars, and it is quieter to allow them
to stay in their cars and use the drive through.
171 With regard to disturbance of the residents of No.4-6 Sophia Grove, we
note that the closest dwelling has a blank wall facing the review site. We
acknowledge the easternmost dwelling has a small deck on its northern side
that has direct line of sight to the review site. This wall and deck would be
approximately 40 metres from the CODs and 70 metres from the outdoor
terrace. Ms Hui opined residents of the dwelling would not be disturbed as
the CODs face away (eastward) from this dwelling and the distances would
diminish the noise levels.
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172 We concur with the residents that the acoustic evidence is based on
modelling and the actual on-ground situation may vary from the evidence
and observations from other sites. Ms Hui accepted that the whilst the
acoustic evidence is reliable and based on methodology used many times
and well tested, it is reasonable to regard it as ‘preliminary’ and it should be
verified following the opening of the restaurant.
173 We generally accept Ms Hui’s acoustic evidence that constraining
deliveries, applying SEPP N-1 and constructing the acoustic fence would
achieve acceptable noise levels at the adjoining dwellings.
174 On the basis of the submissions and evidence with regard to acoustics, we
find that further acoustic tests should be completed within 3 months of the
commencement of the operations of the restaurant. The tests should
measure noise at the adjoining dwellings. The operation of the CODs and
the outdoor terrace should also be reviewed in light of the conclusions of
those tests. If necessary the outdoor terrace should be closed between
10.00pm and 7.00am if noise levels are found to be excessive and they
cannot be attenuated. The permit will include conditions that reflect our
findings.
Would the development comprise unreasonable visual bulk?
175 Mr Radisich raised concerns with the visibility of the CODs given the slope
of the land. We agree with his submissions that they will be visible,
particularly from the west, but have limited visibility from the north and the
northeast. We consider that a screen should be provided on the west side of
the CODs, given there would be no new fencing to No.2-4 Sophia Grove.
176 The acoustic fence adjacent to No.2/89 Sandells Road will be tall and will
cast a shadow into their secluded open space in the afternoon. Provided
that the fence has an angled upper section and comprises palings, we are
satisfied from the shadow illustrations provided by Mr McGurn that it
would not comprise unreasonable visual bulk or cast an unreasonable
shadow, given that it is located at an interface between commercial and
residential properties.
How should litter and waste be managed?
177 The resident objectors and the responsible authority opined that
convenience restaurants such as McDonald’s generate large volumes of
waste materials. The residents noted that more than half of the expected
customers would attend via the drive through and would therefore consume
their meals outside the review site. They were concerned that consumers
would disperse the disposable containers and wrappers in Tecoma’s local
streets as well as along waterways, walking trails and roads as throughout
the Dandenong Ranges.
178 McDonald’s Australia provides food that is convenient and popular.
Responsibility for the disposal of the wrapping paper and containers largely
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rests with its customers, and McDonald’s (like the other food and drink
premises presently operating in Tecoma), cannot be fairly held to be fully
responsible for the behaviour of people after they leave the store. However,
we are cognisant that this convenience restaurant will be on the edge of an
area noted in planning policy as one of special character and beauty. Hence
it is our view that McDonald’s is reasonably obliged by planning policy to
encourage people to dispose of their rubbish.
179 Whilst such a condition could be considered to relate to the use of the land
and be outside our discretion in this matter, we will impose such a condition
as we consider that it arises from planning policy. We will require a litter
management plan be prepared and approved by Council. The plan will
require signage to be placed within the site and car park to encourage
people to dispose of their rubbish in bins. It will also require the permit
applicant to conduct daily litter patrols within 200 metres of the
convenience restaurant. We note that the permit applicant generally agreed
to such a permit condition.
180 The storage and disposal of waste should be via a private waste contractor
as would be undertaken by all other commercial businesses in Tecoma. We
are satisfied this can be managed through permit conditions.
181 Mr Hall and residents were concerned with odours from the food
preparation. Odours and flues are usually controlled through other
legislation. However, as this matter arises from the development, we will
impose a general condition that will require the installation and proper
management of odour filters to Council’s satisfaction.
Would the development cause unreasonable illumination?
182 It is proposed to illuminate the car park to the rear of the proposed
convenience restaurant. Further illumination would also be provided by the
signs to be located throughout the site. We note that the application plans
provide very limited details of the lighting external to the building.
183 The resident objectors considered that the proposed illumination would be
contrary to the night time character of Tecoma and it would disturb animals
and birds that are active at night.
184 With regard to the possible impacts of illumination on birds and animals,
we were not presented with any lay or expert evidence that provided an
objective basis to assess these matters. We were not advised of the
particular species that might be affected, their numbers, their sensitivity or
adaptability to increased light, or their opportunities to relocate to areas
with less light. Given the general nature of these concerns, we give these
submissions little weight.
185 Dr Clark is a scientist in the field of optics, vision and human factors. Most
of his career was spent with the Australian Defence Science and
Technology Organisation. He put forward the following propositions.
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Firstly the level of illumination for this development is excessive in this
semi-rural context. Secondly the levels of illumination in urban areas
generally are excessive, preventing the observance of the night sky. Thirdly
the relevant Australian Standards fail to limit illumination to reasonable
levels, and developments should be required to have lesser levels of
illumination. Finally there is emerging evidence that excessive levels of
illumination in urban areas generally may be contributing to adverse health
problems for residents and staff. In light of this emerging evidence, he
urged us to apply the precautionary principle. That principle requires that
even though there is presently insufficient or inconclusive medical or
scientific evidence to clearly identify causal links between illumination and
particular diseases, the evidence is sufficiently credible to establish that
there may be a link. Action should be taken now rather than waiting for
scientific evidence that provides near certainty to be completed.
186 We are aware of the precautionary principle and the Tribunal has applied it
in cases where land is likely to be affected by sea level change. The
principle has also been determinative in the assessment of large digital signs
at complex intersections where moving images may contribute to driver
distraction. In those cases the Tribunal was clearly directed by relevant
policy within the Scheme.
187 In this case, there is no policy guidance in the Scheme that suggests that
lighting or signage may cause adverse public health outcomes and should
therefore be minimised. There is no policy direction that public lighting in
urban areas should be limited to allow observance of the night sky. Indeed,
planning policy generally encourages illumination of public places as it
contributes to their safety11. It also encourages illumination of activity
centres as it contributes to their vibrancy and use outside more limited
business hours.
188 The role of the Tribunal is to interpret and apply the law as we find it. It is
not the role of the Tribunal to change laws. Dr Clark confirmed that the
proposed lighting would comply with the relevant Australian Standards12.
He accepted under cross examination that the standards are regularly used
to manage light spill where commercial and residential land uses abut. He
also agreed that a permit condition could be imposed to require the
preparation of an illumination plan and such a plan would be a common
approach in developments such as this. This is the approach that we will
employ in this matter.
189 We give no weight to Dr Clark’s evidence that the general level of urban
lighting is excessive and detrimental to the observance of the night sky. We
simply note that for the reasons above, the Tribunal is not the appropriate
forum in which to prosecute these arguments. The Tribunal has previously
11
12
Clause 15.01
Australian Standard AS4282-1997 Control of the obtrusive effects of outdoor lighting, and AS/NZ
1158.3.1:2005 Lighting for roads and public spaces
VCAT Reference No. P3933/2011
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heard and disregarded these propositions13 and we consider them an
unnecessary distraction in this case. These submissions from Dr Clark are
better directed to forums established to review relevant industry standards
and legislation.
190 However, Dr Clark’s propositions and the residents’ concerns about
illumination did not fall on deaf ears. Towards the end of the hearing the
permit applicant tabled proposed amendments to draft permit conditions.
With regard to lighting, the permit applicant proposed that a lighting plan
be prepared. The lighting plan would be required to comply with lower
lighting levels that would be installed at a typical convenience restaurant in
a suburban location, in recognition of the character of this area. Specifically
lighting would be designed to achieve a level of illumination based on
treating the adjacent residential areas as ‘Dark Surrounds Residential
Areas’, rather than as a suburban residential area. This would require the
lighting to be designed to achieve illumination at the northern and eastern
edges of the site of 10 lux between 6.00am and 11.00pm for the direct
component if luminance measured in the vertical plane, and 1 lux in the
period 11.00pm to 6.00am.
191 The lighting plan would also require lighting to be minimised in views from
the north, and we have included further conditions regarding illumination
levels from signage.
192 We are satisfied that an illumination management plan that requires the
lower illumination levels would be the appropriate instrument to resolve the
‘fine detail’ to implement the above principles. It would ensure that a level
of lighting suitable for public safety is achieved whilst significantly
reducing the level of illumination that might intrude into the adjoining low
density residential area.
What hours of operation would be appropriate?
193 McDonald’s proposes that the convenience restaurant operates all day,
every day. It submits that all of its convenience restaurants in Business 1
Zones operate for similar hours. The hours of operation of other similar
businesses in Tecoma are also unconstrained, and we observed that at least
one food and drink premises is open late at night.
194 We note that the hours of operation relate to the use of the land. There is no
direction in policy that requires or encourages businesses such as this to
operate for limited hours. Indeed planning policy encourages activity
centres to operate for extended periods14 as they become more vibrant
places and a focus for community life.
13
14
Eltham College v Nillumbik SC [2010] VCAT 439
Clause 11.01-2
VCAT Reference No. P3933/2011
Page 39 of 56
195 Whilst we acknowledge the concerns of residents, we find that limiting the
hours of operation of the entire restaurant is beyond our discretion in this
matter and to do so would be an error.
CONCLUSION
196 The responsible authority and residents directed us to consider clause 10.04
of the Scheme that generally requires the responsible authority to balance
competing objectives in favour of net community benefit and sustainable
development. They considered that the proposal has adverse outcomes
would outweigh its benefits.
197 We have to apply the Scheme as we find it. The use of the land is not before
us and many of the adverse outcomes identified and given weight by the
community are not relevant to this matter. The matters that are before us
include activation of the Tecoma activity centre as encouraged by policy,
integration with the streetscape, building design, landscaping and traffic and
parking. We are satisfied that this proposal complies with the Scheme. It
would be a contemporary and well designed building that would fit well
into the streetscape. It would provide additional landscaping consistent with
the vegetation in the locality. We find that the location and operation of its
access, loading bay and car parking areas would be satisfactory. Its signage
and illumination can be designed to reflect the Tecoma streetscape and
night time character. In general, it provides local employment opportunities,
supports tourism and broadens the business mix in the centre, as
encouraged by policy.
198 We are satisfied that many of the problems raised in submissions are not so
significant that they cannot be managed through permit conditions and final
design solutions. We are satisfied that Burwood Highway will operate
satisfactorily. The car park, loading bay and pedestrian access will be
designed to be acceptable. The concerns that are relevant to development
(as distinct from use) are not fatal to this proposal. In fact this development
has only two sensitive residential interfaces and any possible adverse
impacts can be minimised through landscaping, acoustic fencing and limits
on signage and illumination.
199 It therefore follows from the above reasons that it is our conclusion that the
decision of the responsible authority should be set aside and a permit be granted.
200 The permit will include conditions that have regard to the submissions and
evidence of the parties, and the matters that arise from our reasons.
G Rundell
Presiding Member
VCAT Reference No. P3933/2011
M Carew
Member
Page 40 of 56
APPENDIX A – LIST OF RESPONDENTS
Kellie McPherson & Nerissa Box
Peter van Santen
Robyn Holly Desmond
Janette Van Santen
Melisa Nealon
Barnaby Nelson
Anna McPherson and Matt Allison
Ann Hanson
Leone Elford
Elaine Vincent
Sandra Sloane
Brandon Sloane
Peter Grinfingers
Enrico Colasacco
John and Wendy Major
Stephen D'Arcy
Janine Rigby
Susan M Servante
Judie Brennan
Jenifer Sadlwick
Anne Turnbull
Shakti McCaren
Sandra Pitts
Mark Haviland
Anne Sutterby
Carolyn Archer
Melanie De Bree
Rob Leereveld
Patrick Evans
James Shannon
Susannah Burgess
Melanie Rignanese
Sarah Treadwell
Margaret Ames
JA McArthur
Lynne McArthur
GE McArthur
Brad Brownbill
Jessica Slots
Alida. W. Leereveld
Jeff Dickinson
Marita Hannigan
Paul & Phillipa-Jai Hermann
Rosalind Burns
VCAT Reference No. P3933/2011
Marcel Leereveld
Olaf Da Bree
Ian and Jenny Landells
Neil Ashworth
Melanie Berry
Roger Willsher
Gary Davey
Leanne Clarke
Susan Breskvar
Sonya Moran
Matt Posetti
Niki, Karl & Alby Moko
Karl Williams
Sandy Tyrrell
Troy Wastell
Ray Corless
Robyn Moore
Brendan Mohan
April Finestrine
Judith Wolff
Charles Lovitt
Annette Lovitt
W.A Gladman
Brian J. Gibbs
Anita Burman
Christopher Andersen
Paul Stephenson
Eliza Stephenson
Steve Guzzardi
Lee Emmett
Dr Sally McIlroy
Janine Watson
George Lesley & Craig Bankowski
Andrew Munn
Mo Cromar/Chirgwin
DS & DJ Edwards
Kate O'Reilly
Christine Scanlon
Melbourne Water Corporation
Katy Le Gall
Natasha Laurie
Jay Ross Davis
Sam Ford
Max Ford
Page 41 of 56
Nicolas John Booth
Michelle Taylor
Robyn McLaren
Sherree Collins
Amy Wharton
Tecoma Pre-School
Jane Booth
Greg Ford
Claire Ferres Miles
Annette Sahuetz
Joy Serwylo
Michael & Sharon Twining
Robyn Holly Desmond
Desmond & Vanessa Mullin
Michelle Jones
Louise Pain
Matt Posetti
Emma Wray
Philip Yarra
Richard Wise
Jeanette & Peter Birtles
David Walsh
Jessica Brown
Kyeema Fanning
Roslyn Yeung
Rosalind L Marulanda
Marcel Leereveld
Rob Leereveld
Matthew Lucas
Alida W Leereveld
Rebekah K Rees
Prue Light
Janine Rigby
Mark Haviland
Louis Edward Hirs-Smith
Jeffrey Vane Ross
Judith Robertson
Andrea & Karl Williams
Anne Elizabeth
Paul Stephenson
Stephen Gale
Rebecca Belyea
Zoe Glen-Norman
Swinburne Greens Club
Emma Knevett
Richard Pearson
VCAT Reference No. P3933/2011
Carys & Owen McKay-Major
Alicia & Ricardo San Martin
Robert Stephen
Barbara Smith
Samuel D Allit
Brad Buenen & Olivia Fraser
Vicky Bland
Margaret Ames
Trefor Thomas
Venetia D'Cruz-Selvon
Roger Willsher
Anna McPherson & Matt Allison
Juliet Elizabeth
Sally Alderton
Justine Indigo-Rose
Susannah Burgess
Natalie Barton
Kathleen Bosworth
Leone Elford
Paul Finn
Nikolaos Statiras
Kate Gutske
Stephen A Gale
Evelyn De La Motte
Tecoma Village Action Group
Inge Spijkers
Max Kaluzia
Susan Graham
Urszula Lester
Ross Smith
Anne Redsell
Miranda Wills
Mrs Lesley Williams
Rachel Whitworth
Megan Williamson
Paul Oswald
Stuart Thompson
Sue Stevenson
Karen Mackay
Kate Miles
Emily Miles
S. Wundele
Ali Southwell
Sarah J Hancock
Aylie Spence
Sue Griffin
Page 42 of 56
Jill Lightfoot
Sofia Wenhrynowycz
Simone Hall
Paul Grujic
Elizabeth Howard
Lisa Ford
Anita Dealy
Michelle Spencer
Timothy Smith
Lachlan Thompson
Ian & Jenny Landells
Sandra Sloane
Elicia Savvas & James Frazer
Chase Hermann
Jamie Mark Walvisch
Mike Brown
Kate Stephenson
Sally Duff
Judith Wolff
Kate Schumann
Hamish Curran
Ray Corless
Skye Curran
Tessa Christensen
David John Hall
Save The Dandenongs League Inc
Rosemary Martin
Anthony Paul Wittman
Kevin Jose
Roger Shaw
Sam Van Angeren
David & Simone Patterson
Nicole Gale
Susan M. Servante
Anja Tyrrell
Judy Hamilton
Scott Kircher
Kirsty Goodwin
Lisa Gipps
Christina Reeves
Louise Bloxham
Bridie Littlechild
Olaf De Bree
Seona Black
S Lazarus
VCAT Reference No. P3933/2011
Lee Fuller
Mary Grace
Peter Francis Baine
Allison Bolen & Stephen Jensen
Carolyn Ebdon & Darryl Shatte
Cassandra Hermann
Amy Richards
Peter Macrae
Jonathan Jones
Bryonie Hills
Alan Zanolla
Judith Curran
Winifred Gibson
Helen Whitelaw
Dianne McInerney
Lousie Morris
Matthew Major
Faith McKay-Major
Erica Kurec
Anja Jesbera-Hoogendijk
Vicki Boyle
Lara Dabscheck
Tanya Hough
Richard Gipps
Melanie Aggenbach
Lynette De Valle
Kirsty Aspinall
Michael Clarke
Lynne McArthur
Leanne McKeown
Rose-Marie Tyrrell
Kieran David Martin
Jessica Tindall
Gavin Brammer
Christian, Gypsy & Zahra O'Dea
Naomi Davis
Leuwin Robbins-Davis
Barbara D Crisp
Edward John Buller
David Heller
Jane Thomas
Sarah Pratt
E L Miksza & S D Wood
Merlin Brown
Linda Canaider
Page 43 of 56
APPENDIX B
PERMIT APPLICATION NO:
LAND:
YR-2011/647
1529, 1529A, 1531 and 1533 Burwood
Highway, Tecoma
WHAT THE PERMIT ALLOWS:
The permit allows:

Buildings and works for a
convenience restaurant (Clauses
34.01 and 53.01)

Creation, variation and removal of
easements (Clause 52.02)

Displaying business identification
and internally illuminated signage
(Clause 52.05)

Removal of vegetation (Clause
53.01)

Alteration of access to a Road Zone
Category 1 (Clause 52.29)
in accordance with the endorsed plans.
CONDITIONS
1
Before the development starts, including the removal of any trees or other
vegetation, amended plans to the satisfaction of the Responsible Authority
(2 copies) 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 be
generally in accordance with the plans submitted with the application but
modified to show:
a
the location and details of signage prohibiting right turns on to
Burwood Highway
b
the acoustic fence to be constructed of timber palings generally in
accordance with Drawings nos. A270 Rev A and A271 Rev A
prepared by Richmond and Ross Pty Ltd dated July 2012 and the
modified cross section drawings of Appendix E attached to the expert
evidence of Ms Hui, Marshall Day dated July 2012 and tabled with the
Tribunal
c
improved integration between the public footpath and the setback area
to Burwood Highway by the landscape planters at the southwest
corner being level with the ground rising to no more than 600mm at
the southeast corner
VCAT Reference No. P3933/2011
Page 44 of 56
d
the existing northern carriageway easement on Plan A00 1 shaded as
6.2 metres wide along with existing and proposed appurtenant
carriageway easements on No. 1533 and No. 1535 Burwood Highway
e
existing and proposed appurtenant carriageway easements on Nos.
1533 and 1535 Burwood Highway on PC372937 before certification
f
a reduction in the number of car parking spaces from 28 to 26
g
all car spaces as 4.9m long to fixed kerbs from accessways, references
to spiked lanes are to be deleted
h
no kerb on either side of the carriageway easement on No. 1533
Burwood Highway
i
details of water tanks to be located underground or under the building
j
a schedule of colours and finishes including
i
the roofing material amended from zincalume to a subdued and
non-reflective material and colour
ii
the blades on the north elevation to be a muted tone
iii
the canopy to be muted tones (not vivid white)
iv
an alternate treatment including timber to the west facing loading
bay wall
v
the application of local stone rather than stackstone cladding to
the vertical columns located on the southwest corner of the
building
k
the loading bay to be designed in accordance with the plan prepared
by Richmond and Ross dated 12 August 2012 and to include a splay to
enable acceptable sightlines from the disabled car parking space of
northbound traffic using the access aisle to the satisfaction of the
Responsible Authority
l
the location of plant and equipment on the roof to minimise their
visibility
m
transparent timber screen(s) to the west side of the CODs to a height
of 2.7 metres to minimise their visibility to the west
n
four staff bicycle spaces delineated on the plans within a weatherproof
enclosure under the building
o
any amendments required by the Lighting Management Plan required
by condition 29
p
any changes to pedestrian circulation or other changes required by the
Parking and Traffic Management Plan required by condition 46
q
deletion of signs S13, S9D, either 9A or 9B, S4B and replace sign
S2B with sign S4B
VCAT Reference No. P3933/2011
Page 45 of 56
r
additional glazing in the north elevation adjacent to the internal stairs
to the cashier/servery
s
the canopy on the south elevation reduced to a width of no more than
3 metres, and the canopy to be painted in subdued brown, green or
ochre colour(s).
Development
2
The layout of the site and the size of buildings and works shown on the
endorsed plans must not be altered without the prior written consent of the
Responsible Authority.
3
Once the development has started, it must be completed to the satisfaction
of the Responsible Authority.
4
The plan of creation, variation and removal of easement(s) as shown on the
endorsed plans must not be altered without the prior written consent of the
Responsible Authority.
5
Before the development starts, Lots 1, 2 and 3 on PS529078M must be
consolidated and the carriageway easement on Lot 1 on TP 75303 1A must
be registered on title to the satisfaction of the Responsible Authority.
Landscaping
6
Before the occupation of the development, an amended landscaping plan
prepared by a suitably qualified expert to the satisfaction of the Responsible
Authority must be submitted to and approved by the Responsible Authority.
When approved, the plan will be endorsed and will then form part of the
permit. The plan must be drawn to scale with dimensions and three copies
must be provided. The landscaping plan must be generally in accordance
with the landscape concept plan prepared by Urbis Pty Ltd in drawing no.
LAOO1 Rev A accompanying Darren Atkinson’s landscape evidence of
July 2012 but modified to show:
a
the replacement of tree 2 described in the expert evidence prepared for
the Tribunal by Mr Rob Galbraith dated 19 July 2012 with a suitable
native canopy tree species
b
reduction of the extent and height of the planters on the Burwood
Highway frontage
c
replacement planting with a suitable native canopy tree with a
minimum height of 5 metres if the Liquid Amber is removed, and the
installation of an appropriate barriers to protect the tree root zone from
excessive compression from pedestrian traffic
d
replacement of the White Cedar trees proposed along the drive
through with a species of tall slender native canopy trees suitable to be
placed close to passing vehicles
VCAT Reference No. P3933/2011
Page 46 of 56
e
provision of advanced tree species where proposed to plant canopy
trees
f
the type of irrigation is listed as an in-ground system, and a note that
spray irrigation is not appropriate
g
a 24 month maintenance plan with notes on appropriate weed control,
irrigation, mulch replenishment, dead plant replacement and pruning
to ensure the successful establishment and on-going health of the
planting
h
any new lawn areas are to be established with seed, utilising noninvasive grass species include the following appropriate grass species
include: Queensland Blue-grass (Dicantheurn sericeum), Red-leg
Grass Bothriocholoa macra), Weeping Grass (Microlaena stipoides),
Creeping Bent Grass (Agrostis stolonifera), Clustered Wallaby Grass
(Danthonia racemosa), Kentucky Blue-grass (Poa pratensis), Tall
Fescue (Festuca arundinacea)
i
timber edging which does not utilise Jarrah, Red Gum or Native
(White) Cypress Pine (Callitris colurnellaris) unless it can be
demonstrated that they are a recycled product. Acceptable products
include: treated pine, recycled plastic, moulded concrete, plantation
grown Sugar Gum, brick or local stone
j
subject to the consent of the relevant landowners, landscaping in front
of any acoustic fence on the boundary between No.89 Sandells Road
and 1533 and 12535 Burwood Highway
k
details of the paving materials to be used in the 3 metre wide setback
area to Burwood Highway so the area is visually and functionally
integrated with the adjoining public footpath.
7
Before the occupation of the development starts or by such later date as is
approved by the Responsible Authority in writing, the landscaping works
shown on the endorsed plan must be carried out and completed to the
satisfaction of the Responsible Authority.
8
The landscaping shown on the endorsed plans must be maintained to the
satisfaction of the Responsible Authority, including replacement of any
dead or diseased or damaged plants.
Patron Management Plan
9
The number of seats within the restaurant should not exceed 56 seats
internal and 28 external excluding 6 seats in the play ground area to the
satisfaction of the Responsible Authority.
10
Before the occupation of the development starts, an amended Patron
Management Plan prepared to the satisfaction of the Responsible Authority
must be submitted and approved by the Responsible Authority. When
approved, the plan will be endorsed and will then form part of the permit.
VCAT Reference No. P3933/2011
Page 47 of 56
The plan must be generally in accordance with the Patron Management Plan
accompanying the permit application but must additionally address:
11
a
details and signs to show that no right turns are allowed from the site
onto Burwood Highway
b
the area to be covered by the Patron Management Plan
c
the requirement for a roster to be prepared which outlines the number
of staff and the responsibilities and authorities of staff to be on the
premises at all times
d
the maintenance of a complaints register
e
the publication of a complaints telephone number and email address to
adjoining and nearby properties
f
procedures to be undertaken by staff in the event of complaints by a
member of the public, the Victoria Police, or an ‘authorised officer’ of
Council
g
the measures to be taken by management and staff to ensure patrons
depart the premises and the surrounding area in an orderly manner and
car park patrols
h
the measures to be taken by management and staff to ensure that
patrons do not cause nuisance or annoyance to persons beyond the
land
i
staff be authorised to make statements at any time on their own behalf
to any officer of the Responsible Authority and/or to take action on
behalf of the operator in accordance with a lawful direction by such
officer
j
procedures to evacuate the premises of staff and visitors in an orderly
manner in the event of a high fire risk event.
The development must operate in accordance with the approved Patron
Management Plan and any activities or ongoing obligations contained in the
approved plan must be carried out in accordance with the approved plan.
Amenity
12
Before the occupation of the development starts, odour filters must be
installed to the satisfaction of the Responsible Authority and thereafter
maintained to control cooking, odours, fumes and smoke so as to prevent
the emission of odours outside the premises to the satisfaction of the
Responsible Authority.
13
No external sound amplification equipment or loud speakers may be used
including for the purpose of announcements, broadcasts, playing of music
or similar purposes, except with the further written consent of the
Responsible Authority. This excludes restaurant music that is permitted to
VCAT Reference No. P3933/2011
Page 48 of 56
be played in the dining area, including the terrace area, and the customer
order devices.
14
Bins or other receptacles for any form of rubbish or refuse must not be
placed or allowed to remain in the view of the public and unreasonable
smell must not emit from any such receptacle.
15
No goods may be stored or left exposed outside the building so as to be
visible from any public road or thoroughfare.
16
Before the occupation of the development, the site must drained including
landscaped and pavement areas, all to the satisfaction of the Responsible
Authority.
17
All plant and equipment, including external fans, air conditioning apparatus
and the like, must be located, installed and screened so that it does not
adversely affect the amenity of the area due to its appearance, noise,
emission or otherwise, all to the satisfaction of the Responsible Authority.
18
All buildings and works must be maintained in good order and appearance
to the satisfaction of the Responsible Authority.
19
All security alarms or similar devices installed on the land must be of a
silent type in accordance with any current standard published by Standards
Australia International Limited and be connected to a security service.
Acoustic Measures
20
Before the occupation of the development starts, the acoustic fences as
shown on the approved plans must be erected along the relevant boundaries
of the site to the satisfaction of the Responsible Authority.
21
Subject to the consent of the relevant landowners, acoustic fences must be
constructed on the boundary of Nos.1533 and 1535 Burwood Highway at
the cost of the applicant.
22
The acoustic fences must be maintained at all times to the satisfaction of the
Responsible Authority
23
Before the occupation of the development starts, the Acoustic Report of
Marshall Day Acoustics dated 18 July 20 12 must be endorsed by the
Responsible Authority. This acoustic report will then form part of the
permit.
24
Before the occupation of the development starts, a report prepared by a
suitably qualified acoustic consultant to the satisfaction of the Responsible
Authority must be submitted to and approved by the Responsible Authority.
The report must demonstrate that noise from all mechanical services
equipment complies with the noise limits detailed in accordance with the
endorsed Acoustic Report of Marshall Day Acoustics dated 18 July 2012.
25
Within 3 months of commencement of the occupation of the building, a
further report must be prepared by a suitably qualified acoustic consultant
VCAT Reference No. P3933/2011
Page 49 of 56
to the satisfaction of the Responsible Authority demonstrating that
compliance with ‘Noise from industry in regional Victoria: Recommended
maximum noise levels from commerce, industry and trade premises in
regional Victoria (NIRV)’ has been achieved. If noise emitted from the
premises exceeds the recommended noise limits, the report must address
additional noise control treatments required to the satisfaction of the
Responsible Authority.
26
The operation of the development must be carried out in accordance with
the endorsed acoustic report and any subsequent report referred to in
conditions 23 and 24 of this permit.
27
Noise levels from the premises must not exceed the State Environment
Protection Authority guideline ‘Noise from industry in regional Victoria:
Recommended maximum noise levels from commerce, industry and trade
premises in regional Victoria (NIRV)’ and EPA Publication 1254 — Noise
Control Guidelines and accepted sleep disturbance criteria.
28
All external plant and equipment must be acoustically treated or placed in
suitable housing to minimise acoustic noise to the satisfaction of the
Responsible Authority.
Lighting Management Plan
29
Before the occupation of the building, a Lighting Management Plan
prepared to the satisfaction of the Responsible Authority must be submitted
and approved by the Responsible Authority. When approved, the plan will
be endorsed and will form part of the permit. The plan must show:
a
the location of all external lighting
b
the layout and design of all external lighting to achieve the
recommended maximum values of illuminance in the vertical plane
for “Dark Surrounds Residential Areas” specified in Table 2.1 of
Australian Standard 4282-1997, applied in respect of the dwellings at
Nos.85, 87 and 89 Sandells Road
c
baffling to limit views to external lighting located in the car park and
drive through from the residential areas to the north and west.
30
Within 3 months of the commencement of lighting under the Lighting
Management Plan, an inspection of the lighting and compliance with the
Lighting Management Plan (inspection report) is to be carried out by a
suitably qualified expert and a report of the results including any
recommendations for lighting management is to be submitted to the
satisfaction of the Responsible Authority. Any recommendations in the
inspection report are to be implemented to the satisfaction of the
Responsible Authority.
31
All external lighting of the site, including car parking areas and buildings,
must be located, directed, baffled and shielded and of such limited intensity
VCAT Reference No. P3933/2011
Page 50 of 56
that no nuisance or loss of unreasonable amenity is caused to any person
beyond the site.
Litter Management Plan
32
Before the occupation of the development starts, a Litter Management Plan
prepared to the satisfaction of the Responsible Authority must be submitted
and approved by the Responsible Authority. When approved, the plan will
be endorsed and will form part of the permit. The plan must show:
a
the location of all rubbish bins within the site accessible to the public
b
signage within the restaurant and adjacent to the drive through food
collection booths advising patrons that they are within the scenic
Dandenongs and encouraging patrons to not litter public areas and
road side reserves
c
the conduct of a litter patrol to be undertaken on each day that the
premises are open for trading to the public within a 200 metre radius
of the site to collect and dispose of any litter emanating from the site.
Signs
33
The signs must not contain any flashing lights.
34
The sign lighting must be designed, baffled and located to prevent any
adverse impacts on adjoining land to the satisfaction of the Responsible
Authority.
35
The signs must be constructed and maintained to the satisfaction of the
Responsible Authority.
36
The location of the signs, including those on the supporting structure, as
shown on the plans must not be altered without the written consent of the
Responsible Authority.
37
The illuminated sign S1 located on the northern elevation of the building
must be switched off between the hours of 10.00pm and 7.00am unless
otherwise authorised by the Responsible Authority.
Car parking, traffic, loading and unloading/waste collection
38
The loading and unloading of goods from or to vehicles must only be
carried out on the site, all to the satisfaction of the Responsible Authority.
39
Deliveries to and from the site (including waste collection and loading and
unloading) must not take place between 10.00pm and 7.00am, unless
otherwise approved by the Responsible Authority.
40
All wastes must be disposed of to the satisfaction of the Responsible
Authority and no liquid waste or polluted waters may be discharged into a
sewer or stormwater drainage system.
VCAT Reference No. P3933/2011
Page 51 of 56
41
A minimum of 26 car parking spaces (including one space clearly marked
as being accessible by disabled persons) must be provided to the
satisfaction of the Responsible Authority at all times unless otherwise
approved by the Responsible Authority.
42
Before the occupation of the development starts, left and right turning lanes
must be constructed in Sandells Road at the Burwood Highway intersection
generally in accordance with the concept layout JM12830-01 Issue P5
prepared by GTA Consultants to the satisfaction of the Responsible
Authority, VicRoads and the Public Transport Corporation.
43
Before the occupation of the development starts, the parking areas and
vehicular accessways shown on the endorsed plans including the accessway
on No.1533 Burwood Highway must be, to the satisfaction of the
Responsible Authority:
a
constructed
b
properly formed to such levels that they can be used in accordance
with the plans
c
surfaced with reinforced concrete, asphalt or paving
d
drained incorporating water sensitive urban design elements and
maintained
e
line marked to indicate each car space and all access lanes
f
clearly marked to show the direction of traffic along access lanes and
driveways.
44
The areas indicated on the endorsed plans for use as car parking spaces,
access lanes and driveways must be kept available for these purposes at all
times to the satisfaction of the Responsible Authority.
45
All vehicles must enter and exit the site in a forward direction.
Parking and Traffic Management Plan
46
Before the development starts, a traffic and parking management plan to the
satisfaction of the responsible authority must be submitted to and approved
by the Responsible Authority. When approved, the plan will be endorsed
and will then form part of the permit. Traffic and parking operations on and
adjacent to the site must conform to this endorsed plan. Three copies of the
plan must be submitted. The plan must include:
a
all car parking and accessways on land at 1527, 1529, 1529A, 1531,
1533 and 1535 Burwood Highway
b
designation of the use of land to the north of the existing carriageway
easements registered on title as for public use E-5 on PS339142 and as
E-5 on PS529O78
c
the means by which the direction of traffic and pedestrian flows to and
from car parking areas will be controlled both on and off-site
VCAT Reference No. P3933/2011
Page 52 of 56
d
the location and marking of a pedestrian crossing point to the rear
(northern entrance) to the building and pedestrian safety measures in
the northbound aisle of the carriageway to Burwood Highway adjacent
to the loading bay.
e
the location and design of any desired speed control devices within the
accessways including the entry/exit points to Sandalls Road and
Burwood Highway
f
subject to the consent of adjacent landowners, the provision, cost and
maintenance of car parking and traffic management measures
including speed control devices, directional signage, car parking
information and restrictions including any signs designating car
parking areas for particular premises between identified times
Civil work/engineering works
47
All pipes, fixtures, fittings and vents servicing any building on the site must
be concealed in service ducts or otherwise hidden from view to the
satisfaction of the Responsible Authority.
48
Unless there is a hydrant connected to a reticulated water supply within 120
metres of any property boundary a fire hydrant/s or onsite fire fighting
equipment and/or water storage facilities are to be installed and maintained
to the satisfaction of the Country Fire Authority.
49
Before the engineering construction plans are approved, an inspection/
surveillance fee to the value of 0.5% of the estimated cost of the works
must be paid to the Responsible Authority.
50
All sewage and sullage waste must be discharged into a reticulated
sewerage system to the satisfaction of the Responsible Authority.
51
Before the occupation of the development starts, piped drainage, including a
detention system, must be constructed to drain all impervious areas to the
satisfaction of the Responsible Authority.
52
Before the development starts, engineering construction plans to the
satisfaction of the Responsible Authority showing all car parking,
accessways and drainage must be submitted to and approved by the
Responsible Authority. Once approved, the development must then be
constructed in accordance with the approved engineering construction plans
to the satisfaction of the Responsible Authority.
53
A maintenance bond to the value of $5000 must be paid to the Responsible
Authority prior to the commencement of the works and to be reimbursed on
the practical completion of the works.
54
Before the engineering construction plans are approved, a plan of creation
of easement for a carriageway easement of appropriate width over the
accessway through No.1533 Burwood Highway must be lodged at and
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registered by the Titles Office to the satisfaction of the Responsible
Authority.
55
Before the occupation of the development starts, the construction of all
internal civil works, including car parking, vehicular accessways and
drainage is to be inspected and approved by a suitably person. This person
must supply written certification that the works have been constructed in
accordance with the approved plans, to the satisfaction of the Responsible
Authority.
Construction Plans
56
57
Before the development starts, a Construction Management Plan to the
satisfaction of the Responsible Authority must be submitted to and
approved by the Responsible Authority. When approved the plan will then
form part of the permit. The Construction Management Plan must include
details to ensure activities throughout the construction period are adequately
managed to the satisfaction of the Responsible Authority including, but not
be limited to:
a
the operating hours
b
the appropriate means of dust control
c
details of an on-site manager
d
the method for storage of material.
All green waste generated from the clearing of land during the construction
phase must be mulched or transported from the site as appropriate. Green
waste must not be burnt on site.
Melbourne Water
58
No polluted and/or sediment laden runoff is to be discharged directly or
indirectly.
South East Water
59
Prior to certification, the Plan of Subdivision must be referred to South East
Water, in accordance with section 8 of the Subdivision Act 1988.
60
The certified Plan of Subdivision will need to show sewerage supply
easement over all existing and/or proposed South East Water sewer mains
located within the land, to be in favour of South East Water under section
12(1) of the Subdivision Act 1988.
Telstra
61
The plan of subdivision submitted for certification be referred to Telstra in
accordance with section 8 of the Subdivision Act 1988.
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Multinet Gas
62
The plan of subdivision submitted for certification must be referred to
Multinet Gas in accordance with section 8 of the Subdivision Act 1988.
SPI Ausnet
63
Prior to statement of compliance the applicant must enter into an agreement
with SPI Electricity Pty Ltd for the extension, upgrading or rearrangement
of the electricity supply to lots on the plan of subdivision. A payment to
cover the cost of such work will be required.
64
Prior to statement of compliance, the applicant must provide electricity
easements internal and external to the subdivision in favour of SPI
Electricity Pty Ltd to service the lots on the plan of subdivision and/or
abutting lands as required by SPI Electricity Pty Ltd. The provision of
reserves for electricity substations may also be required.
Vic Roads
65
Prior to the commencement of the permitted development, a detailed
functional layout must be submitted to VicRoads and the Responsible
Authority for approval, generally in accordance with the concept layout
(JM12830-01 Issue PS) prepared by GTA Consultants.
Once approved by VicRoads, these plans will be endorsed and will then
form part of the permit and must not be altered without the approval of
VicRoads.
66
Prior to the commencement of any works required by VicRoads under this
permit, a detailed engineering design must be prepared generally in
accordance with the accepted functional layout plan and to the satisfaction
of VicRoads.
67
Prior to the occupation of the permitted development, all works required by
VicRoads under this permit must be completed to the satisfaction of
VicRoads and at no cost to VicRoads.
68
The preparation of the detailed engineering design and the construction and
completion of all work must be undertaken in a manner consistent with
current VicRoads policy, procedures and standards and at no cost to
VicRoads. In order to meet VicRoads’ requirements for these tasks the
applicant will be required to comply with the requirements documented as
“Standard Requirements-Developer Funded Projects” and any other
requirement considered necessary depending on the nature of the work.
69
No work must be commenced in, on, under or over the road reserve without
having first obtaining all necessary approval under the Road Management
Act 2004, the Road Safety Act 1986, and any other relevant acts or
regulation created under those Acts.
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Expiry of permit
70
This permit will expire if one of the following circumstances apply:
a
the Plan of creation, variation, removal of easement(s) is not started
within two (2) years of the date of this permit, as evidenced by the
plan of subdivision being certified by the Council within that
timeframe
b
the registration of the Plan of creation, variation, removal of
easement(s) is not completed within five (5) years of the date of
certification
c
the development is not started within two years of the date of this
permit
d
the development is not completed within four years of the date of this
permit.
The Responsible Authority may extend the periods referred to if a request is
made in writing before the permit expires or within three months afterwards.
--- End of Conditions ---
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