VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
PLANNING AND ENVIRONMENT list	vcat reference Nos.
 P1106/2023 & P1456/2023
Permit Application No.
005.2021.00000106.001	

Applicant	

P1106/2023	
Katrina Toomey, Andrew Toomey & Others	

P1456/2023	
Wohcha Pty Ltd	

Responsible Authority	
Northern Grampians Shire Council	

Respondent	

P1456/2023	
Wohcha Pty Ltd	

SUBJECT LAND	
98-100 Main Street
GREAT WESTERN VIC 3374	

HEARING TYPE	Hearing	
DATE OF HEARING	10, 11, 12 & 15 April 2024	
DATE OF INTERIM DECISION	12 June 2024	
DATE OF ORDER	28 October 2024	
DATE OF CORRECTION ORDER	29 October 2024	
CITATION	Toomey v Northern Grampians SC (No. 2) [2024] VCAT 1034	

Order
Permit granted
1	In applications P1106/2023 & P1456/2023 the decision of the responsible authority is varied. 
2	In planning permit application 005.2021.00000106.001 a permit is granted and directed to be issued for the land at 98-100 Main Street, GREAT WESTERN VIC 3374 in accordance with the endorsed plans and the conditions set out in Appendix A.  The permit allows:
•	Use and development of a residential hotel in a two-storey building, alterations and extensions to the existing food and drink premises, basement car park, reduction in the required number of car parking spaces and associated works. 

Joel Templar
Presiding Member		Ann Keddie
Member	

Appearances
For Katrina Toomey, Andrew Toomey & Others	Andrew Iser, lawyer of Best Hooper lawyers. Evidence was called from:
•	Campbell Gullock, urban designer of Blades Studio.	
For Wohcha Pty Ltd	Dr Joseph Monaghan, lawyer of Holding Redlich. Evidence was called from:
•	Professor Rob McGauran, architect of MGS Architects.
•	John Glossop, town planner of Glossop Town Planning.
•	Terry Hardingham, traffic engineer of O’Brien Traffic.	
For Northern Grampians Shire Council	Darren Wong, lawyer of Planology.	

Information
Description of proposal	Use and development of a residential hotel in a two- storey building with ancillary shop, alterations and extensions to the existing food and drink premises, basement car park, reduction in the required number of car parking spaces and associated works.	
Nature of proceeding	P1106/2023
Application under section 82 of the Planning and Environment Act 1987 – to review the decision to grant a permit.
P1456/2023
Application under section 80 of the Planning and Environment Act 1987 – to review the conditions contained in the permit.	
Planning scheme	Northern Grampians Planning Scheme	
Zone and overlays	Township Zone	
Permit requirements	Clause 32.05-2 - to use land for Accommodation (including Residential hotel); 
Clause 32.05-7 - to construct or extend a residential building; and 
Clause 32.05-7 - to construct buildings and works associated with a section 2 use (Residential hotel and Food and drink premises). 
Clause 52.06-3 – to reduce (including reduce to zero) the number of car parking spaces required under Clause 52.06-5.	
Tribunal inspection	7 & 8 May 2024	

  Reasons
1	By Order dated 12 June 2024, the Tribunal determined that the permit application which is the subject of this proceeding would result in an unacceptable outcome. That same order, however, did not set aside the council’s decision, rather, it provided the first respondent with the opportunity to address the concerns of the Tribunal by way of an amended proposal.
2	That same order also set out, in terms of some precision, what changes might be made to the proposal and which, if the proposal were amended, could result in an acceptable outcome and consequently a permit would be issued.
3	The order also provided a sequence of opportunities for the proposal to be amended and for the other parties to respond to any such amendments.
4	The first respondent filed an amended proposal, with supporting documentation and the other parties subsequently filed submissions.
5	Submissions received from the first applicant set out three key reasons why the amended proposal was still an unacceptable outcome. In summary:
•	The amended proposal remains an unacceptable response to the site context, and for all the reasons identified in the Applicants’ previous submissions and during the hearing.
•	Excavation of the extended basement further under the existing buildings to be retained comprising the structural integrity, and therefore the retention, of the existing buildings on the site.
•	The incursion of the built form into the tree protection zone of tree 12, which we found should be retained and the built form amended to accommodate its retention. 
6	We have read all of the material provided since the 12 June 2024 order, and we find that the amended proposal is now acceptable and that a permit should issue.
does the proposal satisfactorily address our concerns?
7	At paragraph 104 of our order dated 12 June 2024, we suggested the following amendments would be required to satisfy our concerns:
a	relocation of reception/check-in and retail area (if retained) to Main Street;
b	a 1 metre setback from the Cubitt Street boundary of the site of the east wall of the basement;
c	the retention of tree 12, and resultant breaking of the east wing built form by deletion of units;
d	a break in the west wing of the building by the deletion of the first floor units above the basement access ramp;
e	an increase in floor to ceiling height of the ground floor from 2.7 metres to 3 metres, and at the first floor from 2.4 metres to 2.7 metres; 
f	design resolution of the storage and operational areas; 
g	provision and location of rooftop solar and plant; and
h	amendments to the Landscape Plan to show:
i	deep soil planting along Cubitt Street;
ii	retention of tree 12;
iii	larger canopy trees to the eastern boundary planting and to the area vacated by the proposed retail premises; 
iv	provision of an irrigation system and water tanks for stormwater harvesting; and
v	a full landscape schedule of species proposed.
8	All of the above matters have been satisfactorily addressed through the amended proposal, and we address the matter of the retention of Tree 12 further below. 
9	We are therefore of the view that the proposal responds appropriately to its context and will result in an acceptable outcome.
the first applicant’s submissions
Response to site context
10	In its submissions in response to the amended proposal, the first applicant said the following:
6.	At paragraph [103] the Tribunal emphasised that ‘even if these changes are made, we may not approve the proposal if we are not satisfied that it results in an acceptable development.’ 
7.	In other words, simply making the requisite changes is not necessarily enough for the proposal to be an acceptable planning outcome. The changes must also be an acceptable response to the site context. 
8.	The Tribunal found at paragraph [44] that ‘the existing character of the town is low-scale and low-density’ with ‘a ‘small-town’ feel about it.’2 The Tribunal also found that to be acceptable, the built form must be consistent with the Tribunal’s findings in respect of, inter alia, the physical attributes of the site and surrounding area
11	We made findings with respect to the proposal’s response to the site’s context in our order dated 12 June 2024. We also set out what changes should be made to address our concerns with respect to response to site context. 
12	We have found that the amendments to the proposal respond satisfactorily to our list of necessary changes and that an acceptable outcome in terms of site context will be achieved.
Impact of extended basement on existing buildings
13	The first applicant submitted that the significant extension of the basement under the existing buildings fronting Main Street has not been shown to be structurally possible without undermining those buildings and therefore risking the retention of what the council said is the important contribution of the existing buildings to the village identity.
14	Whilst it is true to state that there is no accompanying material to support the proposition of structural integrity, there has also been no material provided that states this is an unachievable engineering outcome. 
15	In our experience, it is not impossible to excavate underneath existing buildings. How this is to be achieved is not a matter that we find is beyond possibility and therefore, is a matter that the first respondent will need to address in order to successfully achieve what it proposes. The detail is not something that needs to be addressed at planning permit stage.
Tree 12
16	The first applicant submitted that Tree 12 was not sufficiently protected through the amended proposal and that the incursion of the amended built form would exceed 10% (12%). It also submitted that our reasons set out that this tree should be retained, and that all the first respondent has done is assert that its retention is a mere possibility.
17	The amended proposal was accompanied with advice from an arborist, who had undertaken an analysis of the amended proposal and its likely impact on tree 12, as well as a Tree Protection Management Plan for this tree that the arborist recommends be implemented. 
18	This advice states the following:
Based on the tree’s estimated age, current health and species a TPZ incursion of around 12% is seen as tolerable in this instance particularly as the eastern portion of the TPZ is located within a neighbouring property which will remain undisturbed and is contiguous with the TPZ. In addition, the creation of permanent, mulched garden beds within portions of the trees crown projection will also likely improve parts of the trees growing environment over time and would compensate for any minor root damage/severance which may occur during the course of the project.
Therefore, based on these plans and the adherence to our tree management plan in full at the time of the works, the successful retention of Tree 12 is achievable.
19	The first applicant has not provided any material, other than its submissions making assertions, to counter the material provided by the applicant in respect of Tree 12.
20	Whilst the incursion of the built form at ground level will be at 12%, which is in excess of the 10% recommended, we are satisfied that the minor additional incursion will not result in unacceptable risk to Tree 12, on the basis of the Tree Protection Management Plan. As an additional safeguard, we will impose a condition that the section of footpath which impacts the TPZ should be permeable.
Conclusion and decision
21	As we said in our previous decision, ‘we agree with all parties that the site has strong strategic support in planning policies for a proposal of this type. This area of Great Western is identified as an area of change where intensification can occur. Consequently, it is not a question of whether the site can be developed for accommodation but rather whether the design is acceptable having regard to the site context and other specific planning controls and policies applying within Great Western’.
22	Having assessed the responses to that decision, we find that the amended proposal has responded satisfactorily to the issues raised by the Tribunal.  We find that is now an acceptable response to the site context and warrants an approval. A permit should issue.

Joel Templar
Presiding Member		Ann Keddie
Member	

Appendix A – Permit Conditions

Permit Application No:	005.2021.00000106.001	
Land:	98-100 Main Street
GREAT WESTERN  VIC  3374	

What the permit allows	
In accordance with the endorsed plans:
•	Use and development of a residential hotel in a two-storey building, alterations and extensions to the existing food and drink premises, basement car park, reduction in the required number of car parking spaces and associated works.  	

Conditions:
1	Before the development starts, or vegetation is removed, amended plans must be submitted to and approved by the Responsible Authority in a digital format.  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 substituted by the Victorian Civil and Administrative Tribunal in its order dated 12 June 2024 but modified to show:
(a)	All changes in the plans noted as ‘Great Western Motel’, Project Number 202105, drawing numbers TP001 – VCAT, TP002 – VCAT, TP003 – VCAT, TP101 – VCAT, TP102 – VCAT, TP103 – VCAT, TP104 – VCAT, TP300 – VCAT, TP500 – VCAT, all with a Plot Date of 22/8/2024, except for the following additional amendments:
i	The section of concrete footpath within the Tree Protection Zone of Tree 12 to be amended to be a permeable material and constructed above natural ground level with no excavation.
ii	Roof plans with the plant equipment integrated with the built form.
iii	Sectional details between new and existing weatherboard extensions and the new balustrading and roof deck elements.
iv	The reference to loading zone on the site plan to be replaced with a notation stating “Existing car spaces to be retained”.
All the above must be to the satisfaction of the Responsible Authority.
Landscape Plan Required
2	Concurrent with plans submitted to comply with condition 1, a landscape plan must be submitted to and approved by the Responsible Authority.  When approved the plan will form part of the permit and must not be altered without the further written consent of the Responsible Authority.  The landscape plan must be generally in accordance with the landscape concept plans prepared by Thompson May Landscape Architects dated 16 February 2024 drawing numbers 2406-LP01-03 and include: 
(a)	All amendments shown in the Landscape plans by Thomson Hay, dated August 21, 2024 drawing numbers 2406-SP01, 2406 - LP01-04 all Revision A.
(b)	details of surface finishes of pathways and driveways including the amended surface of the footpath identified in condition 1(a)(i);
(c)	a planting schedule of all proposed trees, shrubs and ground covers, including botanical names, common names, pot sizes, size at planting, size at maturity, and quantities of each plant; and
(d)	details of how the water tanks are to be used for irrigation of the landscaping.
Endorsed Plans – Use and Development
3	The use and development must be generally in accordance with the plans submitted with the application to the satisfaction of the Responsible Authority.
Layout not to be altered
4	The use and development must not be altered without the written consent of the Responsible Authority.
Powercor Conditions
5	This letter (dated 2 May 2023) shall be supplied to the applicant in its entirety. 
6	The applicant shall provide an electricity supply to the development in accordance with the Distributor’s requirements and standards. 
7	The applicant shall ensure that existing and proposed buildings and electrical installations on the subject land are compliant with the Victorian Service and Installation Rules (VSIR). 
8	Any buildings must comply with the clearances required by the Electricity Safety (Installations) Regulations. 
9	Any construction work must comply with the Energy Safe Victoria’s “No Go Zone” rules. 
GWM Water Conditions
10	The owner/ applicant must provide plans and estimates of all proposed water supply works prior to commencement, for GWMWater's approval.
11	The owner/ applicant is responsible for verifying the condition of any existing sewer connection point/ s to determine their suitability for use. 
12	The owner/ applicant must provide plans and estimates of all proposed sewerage works prior to commencement for GWMWater's approval.
13	The owner/ applicant must provide written notification of commencement of the works to enable GWMWater to organise inspections and coordinate with its staff. 
14	The owner/ applicant must provide" as constructed" plans and a schedule of final asset costs at the level identified in GWMWater's asset register for all water and sewerage works upon completion.
15	A Trade Waste Agreement is required to be completed to GWMWater's satisfaction in accordance with the corporation's Trade Waste Customer Charter, and any associated requirements, prior to commencement of any new or altered Trade Waste discharge to GWMWater's sewerage system.
16	The owner/ applicant must ensure any existing water or sewer services and GWMWater assets made redundant by this development are abandoned, at the owner's cost, in accordance with GWMWater's standards.
17	The owner/applicant may be responsible for the augmentation of GWMWater's water supply system and/ or sewerage systems to ensure there is sufficient capacity to accommodate this development.  The extent to which the owner/applicant would be required to contribute to network augmentation would be determined by assessment in accordance with GWMWater's New Customer Contribution negotiating framework.
Infrastructure Conditions
Construction Phase:
18	Before the development starts, a construction management plan must be submitted to the satisfaction of the Responsible Authority and be approved by the Responsible Authority.  The plan must outline how issues such as mud on roads, noise, tree protection measures, dust generation and erosion and sediment control will be managed, on site, during the construction phase.  Details of a contact person/site manager must also be provided to ensure the relevant person can be easily contacted should any issues arise.  Management measures are to be in accordance with EPA guidelines for Environment Management. 
Entry Works:
19	Access to the development must be provided from Cubitt Street and/or Brunel Street via all-weather concrete driveways with dimensions adequate to accommodate emergency vehicles to the satisfaction of the Responsible Authority.
20	Any new vehicular crossing to the subject land from the road shall be constructed at a location and of a size and standard satisfactory to the Responsible Authority.  The vehicle crossing(s) must be constructed at the applicant’s expense to provide ingress and egress to the site to the satisfaction of the Responsible Authority.
21	Prior to commencing any works on the road reserve area, the developer must obtain a Works in Road Reserve Permit from Councils Infrastructure Department.  Works must not commence until Councils Infrastructure team has given consent to conduct the works within the road reserve.
22	All disused or redundant vehicle crossings must be removed and reinstated back to kerb and channel to the satisfaction of the Responsible Authority.
Councils Existing Assets:
23	Before the development starts, the owner or developer must submit to the Responsible Authority a written report and photos of any prior damage to public infrastructure.  Listed in the report must be the condition of kerb & channel, footpath, seal, street lights, signs and other public infrastructure fronting the property and abutting at least one property either side of the development.  Unless identified in the written report, any damage to infrastructure post construction will be attributed to the development.  The owner or developer of the subject land must pay for any damage caused to the Councils assets/Public infrastructure caused as a result of the development or use permitted by this permit.
Internal Roads & Carparking
24	Before the use begins and/or the development is occupied, the developer/permit holder must construct all internal road infrastructure (roads, parking areas, drainage, footpaths, lighting etc) in accordance with the endorsed plans to the satisfaction of the Responsible Authority.
25	Before any road, drainage or landscaping works associated with the development start, detailed construction plans to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority.  When approved, the plans will be endorsed and will then form part of the permit.  The plans must show 3D contour levels and must include: 
(a)	Any sealed roads with kerb and channel.
(b)	Concrete footpaths. 
(c)	Underground drains. 
(d)	Fully dimensions parking bays with provision for disability bays.
(e)	Bicycle parking facilities.
(f)	Vehicle turning templates on internal roads, parking areas and access points to ensure emergency and service vehicles can manoeuvre the site appropriately.  
26	All works constructed or carried out must be in accordance with those plans.
External Carparking, Road and Footpath Works
27	Before the use begins and/or the development is occupied, the developer/permit holder must either construct or provide a contribution to Council for the construction of the following:
(a)	60 degree roadside parking at the front of the property on Cubitt Street from the weighbridge entrance to Brunel Street.  This includes new kerb, drainage, sealed parking and necessary linemarking and signage on Cubitt Street. 
(b)	Kerb and Channel along with any crossover as required along Brunel Street adjacent to the development to allow for waste collection access and parallel parking.
(c)	Footpath at the front of the property that connects to the existing paved path on the intersection of Main and Cubitt Streets.  This should be either concrete or paved to provide all weather access from the existing footpath network to the development. 
(d)	Any proposed street furniture that planned to be installed on the footpath area.
28	Before the commencement of any external car parking, road and footpath works for the development, design plans for the construction of the external car parking, road, crossover, and footpath works must be submitted and approved by the Responsible Authority (Council) or alternatively the required design plan may be prepared by Council by mutual agreement between Council and the permit holder, to the satisfaction of the Responsible Authority.  These design plans must include all existing site features including street trees, underground utility services, road infrastructure and any other relevant infrastructure. 
Stormwater Drainage
29	Stormwater from the development must be drained to the satisfaction of the Responsible Authority.
30	Before the use begins and/or the development is occupied all stormwater and surface water discharging from the site, buildings and works must be conveyed to the legal point of discharge by underground pipe drains to the satisfaction of the responsible Authority.  No effluent or polluted water of any type may be allowed to enter the Council's stormwater drainage system.  
31	Before any of the development works start, a properly prepared drainage plan 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 contain the 3D design levels. 
The information and plan must include:   
(a)	details of how the development on the land is to be drained.
(b)	underground pipe drains and pits conveying stormwater through the site (including easements). 
(c)	the proposed legal point of discharge point/s for the property. 
(d)	how stormwater will be retarded onsite to limit site discharge to the required pre-development discharge rates.
External materials and colours non-reflective
32	The exterior colour and cladding of the building(s) must be non-reflective to the satisfaction of the Responsible Authority.
Tree Management Plan
33	
(a)	Concurrent with the endorsement of development plans, a Tree Management Plan (TMP) generally in accordance with the report prepared by CIVICA dated 8 August 2024 must be prepared to the satisfaction of the Responsible Authority by a suitably qualified person. 
(b)	When approved by the Responsible Authority, the TMP will form part of this permit and all building and works must be carried out in accordance with the TMP. The TMP must include the recommendations contained in sections 9.2-11.2.1 inclusive of the arborist report prepared by CIVICA dated 8 August 2024.
Vegetation Protection Works
34	No native vegetation may be removed or damaged as part of the proposed buildings and/or works unless indicated on the endorsed plans to be removed.  To this end, vegetation protection works shall be undertaken during site construction including:
(a)	No stockpiling around the base of any vegetation.
(b)	No excavation works shall be carried out within the drip line of any tree canopy.
(c)	No damaging roots greater than 50mm in diameter.
(d)	No unnecessary pruning of any vegetation.
(e)	Stands of vegetation will be protected by the installation of vegetation protection fencing.
35	Unless otherwise approved in writing by the Responsible Authority, all vegetation protection works shall be undertaken to the satisfaction of the Responsible Authority and shall remain in place during all site works.
Completion and Maintenance of Landscaping Works
36	Before the use of the site or the occupation of the buildings commences, all landscape works forming part of the approved Landscape Plans must be completed to the satisfaction of the Responsible Authority.  The landscaping shown on the approved landscape plan must be maintained to the satisfaction of the Responsible Authority, including that any dead, diseased, or damaged plants are to be replaced.
Waste Management Plan
37	Before the commencement of the use or the occupation of the buildings commences, a Waste Management Plan must be prepared to the satisfaction of the Responsible Authority and endorsed as part of this permit.  The Plan must detail the following: 
(a)	The type and size of waste and recyclable materials, bins, and containers.
(b)	The garbage and recycling equipment (e.g., vehicles and lifting equipment) to be used, if any.
(c)	Details of how communication of the waste management plan and waste obligations with the operators of the uses is to occur.
(d)	The frequency and timing of waste collection. 
(e)	Clarification as to who is responsible for moving the bins/containers to kerbside for Council collection, and who is responsible for returning them to the bin storage area, as well as details of timing for bin transit.
(f)	Measures to manage and minimise noise, odour, and litter.
Waste management must be undertaken in accordance with the approved Waste Management Plan to the satisfaction of the Responsible Authority.
Lighting
38	External lighting must be designed, baffled, and located to prevent any adverse effect on adjoining land to the satisfaction of the Responsible Authority.
Amenity
39	The use and development must be managed so that the amenity of the area is not detrimentally affected, through the:
(a)	Transport of materials, goods, or commodities to or from the land. 
(b)	Appearance of any building, works or materials. 
(c)	Emission of noise, artificial light, vibration, smell, fumes, smoke, vapour, steam, soot, ash, dust, waste water, waste products, grit or oil. 
(d)	Presence of vermin.
to the satisfaction of the Responsible Authority.
40	The central common outdoor area must be closed and not used between the hours of 10pm and 7am the following day.
Emissions and Discharges During Construction
41	The permit holder must restrict emissions and discharges during construction within the land in accordance with the best practice environmental management techniques and guidelines and general environmental duty (GED) under the Environment Protection Act 2017, to the satisfaction of the Responsible Authority.
Noise from Construction
42	Noise emissions from the construction of the development on the site must not exceed the standards set out in the relevant Noise Protocols in the Environment Protection Act 2017, to the satisfaction of the Responsible Authority.
Noise from Uses
43	Noise levels emanating from the uses on the site must not exceed those required to be met under the Noise Limit and Assessment Protocol for the Control of Noise from Commercial, Industrial and Trade Premises and Entertainment Venues (Publication 1826.2, Environment Protection Authority, March 2021) or relevant alternative, in accordance with the Environment Protection Act 2017, to the satisfaction of the Responsible Authority.
Expiry of Permit – Use and Development
44	In accordance with Section 68 of the Planning and Environment Act 1987, this permit will expire if one of the following circumstances applies:-
(a)	The development is not commenced within two (2) years of the date of this permit.
(b)	The development is not completed within four (4) years of the date of this permit.
(c)	The use is not commenced within four (4) years of the date of this permit.
In accordance with Section 69 of the Planning and Environment Act 1987, the Responsible Authority may extend the periods referred to if a request is made in writing.