VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment LIST	vcat reference No. P344/2024
Permit Application no.TP325/2023(1) 	
CATCHWORDS	
Section 77 of the Planning and Environment Act 1987 (Vic); Maribyrnong Planning Scheme; Industrial 3 Zone; Development Contributions Plan Overlay Schedule 2; use and development of four warehouses; carparking reduction sought; setbacks to Hyde Street; loading and unloading; amenity.	

Applicant	Hyde Street Developments Pty Ltd	

Responsible Authority	Maribyrnong City Council	

SUBJECT LAND	245 Hyde Street
YARRAVILLE VIC 3013	

HEARING TYPE	Hearing	

DATE OF HEARING	25 November 2024	

DATE OF ORDER	7 January 2025	

CITATION	Hyde Street Developments Pty Ltd v Maribyrnong CC [2025] VCAT 16	

Order
Amended plans
1	Pursuant to clause 64 of schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic), the permit application is amended by substituting for the permit application plans the following plans filed with the Tribunal:
•	Prepared by:	Draftmode Designs Pty Ltd
•	Dated:	11 October 2024
•	Plan numbers:	Revision C, Plans 01-11 inclusive
Permit granted
2	In application P344/2024 the decision of the responsible authority is set aside.

3	In planning permit application TP325/2023(1) a permit is granted and directed to be issued for the land at 245 Hyde Street Yarraville VIC 3013 in accordance with the endorsed plans and the conditions set out in Appendix A.  The permit allows:
Planning scheme clause	Matter for which the permit has been granted	

Clause 33.01-1	Use of the land for a warehouse within 30 metres of a residential zone.	
Clause 33.01-4	Construct a building or construct or carry out works.	
Clause 52.06-3	Reduction in the car parking requirement.	

Nick Wimbush
Member			

Appearances
For applicant	Darren Wong, lawyer from Planology who called evidence from Valentine Gnanakone in traffic engineering	
For responsible authority	Simon Scott, Principal Urban Planner	

Information
Description of proposal	Four double storey warehouses on the south east corner of Hyde Street and Little Hyde Street in Yarraville with a maximum height of 6.83 metres.  Access to eight car parks and four loading bays will be provided off Little Hyde Street.  The total net floor area of the warehouses will be 412.12 square metres.	
Nature of proceeding	Application under section 77 of the Planning and Environment Act 1987 (Vic) – to review the refusal to grant a permit.	
Planning scheme	Maribyrnong Planning Scheme	
Zone and overlays	Industrial 3 Zone (‘IN3Z’)
Development Contribution Plans Overlay Schedule 2 (‘DCPO2’)	
Permit requirements	Use of the land for a warehouse within 30 metres of a residential zone under cl 33.01-1 (IN3Z)
Construct a building or construct or carry out works under cl 33.01-4 (IN3Z)
Reduction in the car parking requirements under cl 52.06-3	
Land description	The land is 619 square metres in size and a rectangular shape with a frontage of 18.29 metres to Hyde Street and a depth of 33.83 metres.  Little Hyde Street forms the boundary of the land on the northern side and is a cul-de-sac servicing a number of small businesses. The land contains a single storey dwelling and outbuildings which will be demolished. The east side of Hyde Street is in the IN3Z and contains a mix of warehouses, offices and older style dwellings. Immediately across Hyde Street is in the General Residential Zone Schedule 1 (‘GRZ1’) developed with three storey apartments.  Across Hyde Street to the south west is in the Commercial 2 Zone (‘C2Z’).	
Tribunal inspection	Unaccompanied of the site and surrounds on 22 November 2024.	

Reasons
Introduction
1	The proposal is to develop four warehouses in an appropriate zone with good traffic and public transport access.  The existing developed warehouse and office stock in the area is variable and somewhat tired in some locations, with poor presentation to Hyde Street.
2	The proposal is a contemporary, attractive design with a landscape theme that will improve the overall appearance of the site and immediate area as sought in policy in the Maribyrnong Planning Scheme (‘planning scheme’).  The positive aspects of the proposal, supported by policy, in my view far outweigh any minor concerns related to parking and overdevelopment that have been raised in the grounds for refusal and a permit should be issued.
What is this proceeding about?
3	Hyde Street Developments Pty Ltd (‘applicant’) seeks to develop four, two storey warehouses on 245 Hyde Street in Yarraville.  A perspective from the Hyde Street/Little Hyde Street corner is shown in figure 1 and the site plan is shown in figure 2.

Figure 1 Perspective from the north west

Figure 2 Site and ground floor plan
4	Maribyrnong City Council (‘council’) refused the application on the following grounds, in summary:
•	Overdevelopment of the site.
•	Insufficient car parking and impractical loading arrangements.
•	Impractical vehicle access and impact on other businesses on Little Hyde Street.
•	Insufficient front setbacks and landscaping.
5	The applicant circulated amended plans in accordance with the Tribunal Practice Note PNPE9 and these plans have been substituted by order.  Following review of the amended plans council maintains the grounds outlined above.
Procedural issue
6	On 12 December 2024 after the hearing Amendment C184mari was gazetted.  The amendment introduced the contemporary format of planning schemes to Maribyrnong required under Amendment VC148 and the Ministerial Direction on the Form and Content of Planning Schemes.
7	Such amendments are usually described as ‘policy neutral’ in that they change the planning scheme format without substantive changes to content.  I sought submissions from council and the applicant for their views on the relevance of the amendment, if any, to my consideration.  Council provided a useful translation table which identified where policies referenced in the hearing are now located in the planning scheme.  I have used the new planning scheme references in this decision.
8	Council and the applicant agreed that there are no substantive merits changes in the amendment that might affect my consideration of the application. 
What are the key issues?
9	The parties agree that the use is appropriate given the proposal is in the IN3Z and the Yarraville Port Core Employment Area, and council did not take issue with the design.  Its concerns relate to overdevelopment and the resulting impacts on setbacks, minimal landscaping, parking and traffic and loading/unloading practicality. 
10	I address these issues below in detail.  Having considered the relevant decision guidelines in the planning scheme and the need to balance competing policy objectives under cl 71.02-3, I conclude that the development proposal is an acceptable planning outcome.  It will provide a contemporary attractive built form in an area which will benefit from the site’s renewal.
11	I note that a permit for use is triggered given the site is within 30 metres of the residential area across Hyde Street.  Given the nature of the actual businesses that will occupy the development is unknown, it is difficult to assess the potential for particular amenity impacts.  I am satisfied that the mix of conditions proposed relating to offsite amenity and restriction of night time loading and unloading should manage any amenity impacts on the residential area to an acceptable level.
the setback from hyde street
12	Council’s view is that the setback from Hyde Street, being 1 metre, is inconsistent with setbacks in the area and will not allow for adequate landscaping.  It drew my attention to a number of elements in the zone and policy where landscaping and setbacks are to be considered but acknowledged the planning scheme does not include a particular metric for minimum setbacks.  Council identified a number of examples in the vicinity where it says the setback is greater and identified an average setback in the order of 3 metres.
13	The applicant acknowledged that there are larger setbacks in the area but submitted:
Even where large setbacks exist, these areas are generally used for car parking and loading activities. They are generally not landscaped, and if they are, the landscaping is poorly maintained.
14	Its view is that the 1 metre setback along the Hyde Street frontage with a wider landscaped area on the corner of Little Hyde Street will provide an attractive green presentation, one that will be unbroken now the crossover is to be removed.  A landscape concept plan was provided with the application.
15	The policy identified by council seeks a combination of well landscaped front setbacks but also seeks attractive and high quality built form to improve the overall presentation to the streetscape.
16	Have viewed the site and surrounds, it is apparent that setbacks to Hyde Street are highly variable in depth but also in appearance.  There are some contemporary landscaped frontages within the area but equally there are some setbacks, even quite large setbacks, which are dominated by carparks and a lack of landscaping which don’t create a particularly attractive streetscape.
17	Overall, I am satisfied that the attractiveness of the built form with good articulation and a well resolved colour palette combined with the presentation of a coherent, continuous landscaped frontage is an acceptable planning outcome.  A reduction in development intensity in my view is not required to reach this acceptable outcome.
18	A condition has been included to provide a detailed landscape plan which is common practice.  The opportunity for additional landscaping in the vicinity of the accessible car park is also to be explored and I have included a condition accordingly.
parking provision
19	Eight car parks are to be provided, including one accessible car parking space.  It was common ground that the statutory car parking requirement under cl 52.06-6 of the planning scheme is 14 spaces.  Council’s view is that the eight spaces proposed is a significant undersupply when assessed against the requirement of cl 52.06.
20	Mr Gnanakone gave evidence for the applicant and undertook a car parking demand assessment which is required for a consideration of a reduction in car parking under cl 52.06-7.  He concluded, in summary, that:
•	The parking provision for this proposal at 1.81 spaces per 100 square metres of gross floor area compares favourably with a range of 0.7 to 1.44 spaces per 100 square metres of gross floor area at other sites he considered and is ‘more than sufficient’.
•	Based on parking surveys in the surrounding area (200-300 metres in all directions), even at peak surveyed times (1pm on a Tuesday and 2pm on a Wednesday) there were a minimum of 42 and 47 spaces respectively available in the vicinity in the surrounding street network.
•	The removal of the existing crossover will enable an additional parking space on Hyde Street.
•	The site is well serviced by public transport by the 409 bus running along Hyde Street connecting with Yarraville and Footscray Stations.
21	I understand the development is being undertaken on a speculative basis and there are not tenants signed for the particular units at this time.  Thus, the specific requirements for parking for future tenants is unknown.
22	However, based on the evidence of Mr Gnanakone regarding parking provision for other warehouse developments, the good supply of on-street parking in the area and the accessibility via public transport, I am satisfied that the provision of eight spaces is an acceptable planning outcome.  A permit for the reduction in parking should be issued accordingly.
operation of the loading bays
23	A loading bay is planned for each unit forecourt, outlined in dotted red lines in figure 2.  By their design, when the loading bay is being used it means access to the internal car space is affected.  A car in the car space will be blocked in, or a car arriving attempting to access the internal car space will not be able to park.
24	Vehicles using the loading bays will be expected to enter Little Hyde Street facing forward and then reverse into the loading bays.  Vehicles exiting the loading bays will exit facing forward into Little Hyde Street and then turn left or right into Hyde Street as desired.
25	Council’s concerns related to the practicality and safety of access and egress to the loading bays and inadequate curve radii for entering and exiting manoeuvres of delivery vehicles.  They noted that the laneway (Little Hyde Street) is relatively narrow and not a particularly safe environment for the turning manoeuvre of delivery vehicles.
26	Mr Gnanakone provided swept path diagrams with his evidence which he said demonstrated that a small rigid vehicle up to 6.4 metres in length can satisfactorily access the loading bays and the design and location of the loading bays is acceptable.
27	I accept that Litte Hyde Street is relatively narrow, and two vehicles would not be able to pass easily if at all.  I am also satisfied however that the level of traffic generated by the development is likely to be very low and is unlikely to significantly affect the other business users of Little Hyde Street.  The development also includes an apron on Little Hyde Street approximately 2 metres wide which will facilitate parking and unloading on the site but also manoeuvring if necessary of other vehicles in Little Hyde Street.
28	Unloading vehicles will be fully on-site and off the laneway. I am satisfied that based on the swept paths the entry and exit situation will be tight but acceptable in the context of the site and Little Hyde Street.
29	Managing the loading bays in relation to onsite parking is an issue for the tenants to manage and I do not consider it an issue of such significance that it should prevent a permit being issued.
30	There was discussion in the hearing as to whether use of the loading bays should be restricted to minimise any potential amenity impacts on residents across Hyde Street.  While I consider the potential for impacts is low, the applicant indicated they would accept a condition limiting the hours of loading and unloading to 7am to 7pm.  In the circumstances I think this is reasonable with variation to the condition if necessary left to the discretion of the responsible authority through secondary consent.
What conditions are appropriate?
31	I have made a number of changes to the conditions to be applied to the permit to improve expression and plain English.  Some of the more significant changes are outlined below.
Reconstruction of Little Hyde Street
32	Council sought a condition requiring the reconstruction of Little Hyde Street adjacent to the development.  Little Hyde Street is a public road on the council register.  It is in average condition being bluestones blocks with patches of tarmac overlaid in places as shown in figure 3.  Despite its condition it is the primary access for a small number of existing businesses further east along Little Hyde Street.

Figure 3 Little Hyde Street looking towards Hyde Street
33	The applicant strongly objected to such a condition on the basis that the traffic generated for the proposal, put by Mr Gnanakone as in the order of four vehicles per hour at the peak, does not justify the upgrade.  The existing businesses further down Little Hyde Street would also take the benefit of any upgrade without contributing to the cost.
34	I am not convinced that it is fair or reasonable for the applicant to reconstruct this part of Little Hyde Street.  The additional amount of traffic generated by the development, and thus impact on Little Hyde Street, will be low and does not justify in my mind the considerable expense of upgrading approximately one third the length of the street.  Little Hyde Street is not in prime condition, but in my view if it is to be upgraded this should be part of council’s broader road maintenance programme or the costs shared by all the users of Little Hyde Street.  I have deleted the condition accordingly.
Section 173 agreement and the Port of Melbourne
35	The Port of Melbourne was referred the application under s 52 of the Planning and Environment Act 1987 (Vic) (‘the Act’).  They sought a condition requiring a s 173 agreement under the Act to among other things:
•	Notify occupants of the existence of the Port, its operation, and its future expansion.
•	Limit the occupants of the site to 24 persons at any one time.
•	Provide for an Emergency Management Plan (‘EMP’).
36	The s 173 agreement was also to notify occupants of the existence of the Coode Island Major Hazard Facility and allow for its consideration in the EMP.  
37	The applicant did not object to the content of the proposed s 173 agreement but observed that the preparation and lodgement of a s 173 agreement is onerous, and in this case is not necessary as the matters can be covered through permit conditions.  It did not object to such conditions being applied and submitted that as the permit is for use and development the conditions will ‘live on’ unlike the conditions in a subdivision permit.
38	I agree.  I do not consider that the s 173 agreement is needed to achieve the desired result. It is simpler and less costly to include appropriate conditions on the planning permit.  I have expanded the proposed EMP condition in Appendix A to provide for the matters sought to be covered by the Port of Melbourne.
Conclusion
39	For the reasons given above, the decision of the responsible authority is set aside.  A permit is granted subject to conditions.

Nick Wimbush
Member			

Appendix A – Permit description and Conditions
Permit No	TP325/2023(1)	
planning scheme	Maribyrnong Planning Scheme	
responsible authority	Maribyrnong City Council	
address of the land	245 Hyde Street, YARRAVILLE  VIC  3013	
the permit allows:
Planning scheme clause	Matter for which the permit has been granted	

Clause 33.01-1	Use of the land for a warehouse within 30 metres of a residential zone.	
Clause 33.01-4	Construct a building or construct or carry out works.	
Clause 52.06-3	Reduction in the car parking requirement.	
Conditions to apply to the permit:
1	Before the use and/or development start(s), amended plans must be submitted to the satisfaction of 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 provided in digital format (where possible).  The plans must be generally in accordance with the Tribunal plans (Revision C, prepared by Draftmode Design Pty Ltd and dated 11 October 2024) but modified to show:
(a)	An amended landscape plan to the satisfaction of the responsible authority in accordance with condition 4;
(b)	All service meters (electricity, water and gas) shown on all relevant plans.  The design of any structure required to accommodate an electricity meter must be integrated into the side wall of the building, must be easily accessible to meter readers, and must not be sited in a standalone location in the front setback.  Meters must not be ‘stacked’ in the front setback unless appropriately screened and agreed to in writing by the responsible authority;
(c)	Removal of redundant crossover to Hyde Street and reinstatement of kerb, channel, nature strip and footpath in accordance with condition 20;
(d)	Pedestrian pathways delineated by alternative surfaces or pavement colours;
(e)	Increased landscaping adjacent to the pedestrian refuge including considering moving the accessible parking bay to the east and having regard to the swept path for the Lot 1 loading bay;
(f)	Changes required by the Emergency Management Plan at condition 3;
(g)	Changes required by the Waste Management Plan at condition 7;
(h)	Changes required by the Sustainable Design Assessment at condition 9.
Secondary consent condition
2	The use and development as shown on the endorsed plans must not be altered without the written consent of the responsible authority.  This does not apply to an exemption specified in clause 62 of the Maribyrnong Planning Scheme (MPS). NOTE – This does not obviate the need for a permit where one is required.
Emergency Management Plan condition
3	Concurrent with the endorsement of plans, an Emergency Management Plan from a suitably qualified person must be prepared to ensure appropriate safety arrangements and plans are in place to limit any potential exposure to any incident at the Coode Island Major Hazard Facility.  Once approved, the plan will be endorsed and form part of this planning permit. The recommendations of the Emergency Management Plan must be implemented at all times.  The Emergency Management Plan should:
(a)	Note that the subject site is located within the Port of Melbourne environs, adjacent to an active 24 hour per day, 7 days a week working port;
(b)	Note the port is projected to expand and increase its operations in accordance with the Port Development Strategy issued under the Port Management Act 1995 (Vic);
(c)	Note the subject site is located within a Major Hazard Facility Advisory Area;
(d)	Provide appropriate procedures for occupants of the site to respond to an emergency incident in the vicinity which may include shelter on-site, evacuation or other responses as appropriate;
(e)	Provide for a review of the Emergency Management Plan every 2 years.
Landscaping conditions
4	Concurrent with the submission of plans of endorsement, an amended landscape plan must be submitted and be to the satisfaction of the responsible authority. When approved, the plan will be endorsed and will then form part of the permit. The landscaping plan must be generally in accordance with the landscape concept plan dated 11 October 2024 (Revision C) prepared by Draftmode, except that the plan must show:
(a)	An updated planting schedule of all proposed trees, shrubs and ground covers, including botanical names, common names, pot sizes, sizes at maturity, and quantities of each plant;
(b)	Any additional landscaping to be provided under condition 1(e);
(c)	Detailed landscaping height and density on the north west corner of the land to show a visibility splay is provided to an acceptable level for traffic exiting Little Hyde Street;
(d)	Details of surface finishes of pathways and driveways.
5	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 plans must be carried out and completed to the satisfaction of the responsible authority.
6	The landscaping shown on the endorsed plans must be maintained to the satisfaction of the responsible authority, this includes the replacement of any dead, diseased or damaged plants.
Waste management conditions
7	Concurrent with the submission of plans for endorsement, an amended waste storage and collection management and recycling plan for the development must be prepared to the satisfaction of the responsible authority.
The management plan must be provided in digital format (where possible) and have regard to the following matters:
(a)	Bin storage areas for the proposed development including provision for separate rubbish, recycling, glass and organic waste;
(b)	Owners Corporation waste management plan (if required);
(c)	Odour control from bin storage areas;
(d)	Location of waste storage and collection point/s, noting that collection vehicles must exit Little Hyde Street in the forward direction;
(e)	Details of communal waste storage, if proposed;
(f)	Access for removal of waste bins;
(g)	Delivery of bins to waste collection points and retrieval of bins once collected;
(h)	Hours of collection;
(i)	Work cover authority safety matters.
Once submitted and approved by Council’s Waste team, the Waste Management Plan will be endorsed to form part of the permit.
8	Waste management must be carried out in accordance with the Waste Management Plan approved as part of condition 7.
Sustainable Design Assessment condition
9	Concurrent with the submission of plans for endorsement, a Sustainable Design Assessment (SDA) or Built Environment Sustainability Scorecard (BESS) report for the building must be submitted to and approved by the responsible authority.  Once approved, the report will be endorsed and will then form part of the permit.  The report must show how the building meets or exceeds best practice standards (including a minimum 50% score for the four mandatory categories of water, energy, stormwater and IEQ) to the satisfaction of the responsible authority. If forming part of the development, the plans must show the following measures: 
(a)	Location and capacity of water tank, and what it is connected to;
(b)	Any other stormwater management treatment;
(c)	Location of any PV solar panels and whether they are flush with the roof or angled;
(d)	Double glazing/glazing if performance based.
All recommendations of an approved Sustainable Design Assessment / Sustainable Management Plan must be fully implemented to the satisfaction of the responsible authority.
General conditions
10	Once the development has started, it must be continued and completed to the satisfaction of the responsible authority.
11	A Development Infrastructure Levy(s) in accordance with any approved Development Contributions Plan(s) which applies to the Land must be paid to the Collecting Agency prior to the grant of a building approval or the development of any buildings and works associated with the permitted development, whichever occurs first, unless the Collecting Agency agrees to a different time for payment.
12	The use and/or 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)	Harbourage and/or presence of vermin).
All to the satisfaction of the responsible authority.
13	No more than 24 staff are allowed on the premises at any one time except with the written consent of the responsible authority.
14	Unloading and loading of goods must only occur between the hours of 7.00am and 7.00pm, Monday to Sunday except with the written consent of the responsible authority. 
15	No goods are permitted to be stored or left exposed outside the building so as to be visible from any public area.
16	The loading and unloading of goods from vehicles must only be carried out on the land.
17	External lighting must be designed, baffled and located so as to prevent any adverse effect on adjoining land to the satisfaction of the responsible authority.
18	Noise levels emanating from the premises, including from external plant and equipment, must not exceed noise levels as determined using the EPA Victoria Publication Noise limit and assessment protocol for the control of noise from commercial, industrial and trade premises and entertainment venues 1826.4, or result in unreasonable and aggravated noise as defined by Part 5.3 of the Environment Protection Regulation 2021, or other equivalent policy 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.
Engineering and Transport conditions
20	The existing crossover on Hyde Street is to be removed and the kerb, channel, nature strip, and footpath reinstated to match with street assets to the satisfaction of the responsible authority. 
21	Before the use and/or occupation of the development starts, the area(s) set aside for the parking of vehicles and access lanes as shown on the endorsed plans must be to the satisfaction of the responsible authority and be:
(a)		Constructed;
(b)	properly formed to such levels that they can be used in accordance with the plans;
(c)	surfaced with an all weather seal coat;
(d)	drained;
(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.
Car spaces, access lanes and driveways (including any located inside the buildings) must be kept available for these purposes at all times.
22	No fewer than eight (8) car spaces must be provided on the land for the use and/or development, including a space clearly marked for use by disabled persons.
23	Protective kerbs (of a minimum height of 150mm) must be provided to prevent damage to landscaped areas and to prevent direct vehicle access to and from the site other than by the approved crossovers/driveways to the satisfaction of the responsible authority.
24	The site must be drained to the satisfaction of the responsible authority.  Storm water run-off from the site must not cause any adverse impact to the public, any adjoining site or Council asset.  Any cut, fill or structure must not adversely affect the natural storm water runoff from and to adjoining properties. 
25	No polluted and/or sediment laden runoff is to be discharged directly or indirectly into Council's drains or watercourses during and after development.
26	Prior to the commencement of any works on the site and/or subdivision of the land, the owner must submit for approval to the responsible authority drainage plans to the requirements outlined in the Stormwater Discharge Permit.
Expiry condition
27	This permit will expire if one of the following circumstances applies: 
(a)	The development is not started within two years of the date of this permit.
(b)	The development is not completed within four years of the date of this permit.
(c)	The use does not start within two years after the completion of the development.
(d)	The use is discontinued for a period of two years.
In accordance with Section 69 of the Planning and Environment Act 1987 (Vic), an application may be submitted to the responsible authority for an extension of the periods referred to in this condition.
– End of conditions –