VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
administrative DIVISION
planning and environment LIST	vcat reference No. P2108/2018
Permit no. PA1738599	

CATCHWORDS	
Section 80 of the Planning & Environment Act 1987; Hobsons Bay Planning Scheme; 
Industrial 3 Zone – Subdivision: impact of additional crossovers on bicycle network	

APPLICANT	Williams Point Pty Ltd	
RESPONSIBLE AUTHORITY	Hobsons Bay City Council	
SUBJECT LAND	85 Maddox Road, Williamstown North	
WHERE HELD	Melbourne	
BEFORE	Tracy Watson, Member	
HEARING TYPE	Hearing	
DATE OF HEARING	13 March 2019	
DATE OF ORDER	23 April 2019	
CITATION	Williams Point Pty Ltd v Hobsons Bay CC [2019] VCAT 591	

Order
1	The decision of the Responsible Authority is varied.
2	The Tribunal directs that Permit No. PA1738599 must contain the conditions set out in Permit No. PA1738599 issued by the Responsible Authority on 4 October 2018 with the following modifications:
(a)	Condition 8 is amended by including three additional requirements to be added after Condition 8g) as follows:
h)	All new crossovers from Maddox Road must have sight line triangles in accordance with AS 2890 – 1 within which all landscaping and/ or fences are to be limited to a maximum height of 900mm.
i)	Signage and pavement marking must be installed at each access point to Maddox Road to delineate the shared path, and the on-road bicycle lane, and to define the priority which the road rules afford to cyclists and pedestrians.
j)	All lots which have direct access to Maddox Road must be designed and constructed to enable all vehicles, including heavy rigid and articulated vehicles, to enter and exit the lot in a forward direction.
(b)	Condition 25 is deleted and the subsequent conditions are renumbered accordingly.
3	The Responsible Authority is directed to issue a modified permit in accordance with this order. 

Tracy Watson
Member			

APPEARANCES
For Applicant	Phil Bisset, solicitor.  Mr Bisset called expert traffic engineering evidence from Steve Hunt.	
For Responsible Authority	Adeline Lane, solicitor	

INFORMATION
Description of Proposal	Permit No. PA1738599 allows the subdivision of the subject site into four super-lots, removal of native vegetation, creation of roads, carrying out of works and creation of access to a road in a Road Zone, Category 1.  	
Nature of Proceeding	Application under Section 80 of the Planning and Environment Act 1987 – to review the conditions of the permit. 	
Zone and Overlays	Clause 33.03 – Industrial 3 Zone.
Clause 36.04 – Kororoit Creek Road is a Road Zone, Category 1.
Clause 44.05 – Special Building Overlay (applies to part of the subject site).	
Permit Requirements	Clause 33.03-3 – To subdivide the land.
Clause 44.05-2 – To subdivide the land.
Clause 52.17 – To remove native vegetation.
Clause 52.29 – To subdivide land adjacent to a Road Zone, Category 1; and to alter access to a Road Zone, Category 1.	
Relevant Scheme, policies and provisions	Includes Clauses 11, 13, 15, 17, 18, 19, 21.02, 21.03, 21.08, 21.09, 33.03, 36.04, 44.05, 52.17, 52.29, 65 and 71.02.	
Land Description	The subject site is a substantial vacant parcel of land of over 16 hectares, located on the north east corner of Kororoit Creek Road and Maddox Road in Williamstown North.  Land opposite the subject site on the western side of Maddox Road is used for industrial purposes.  	
Tribunal Inspection	14 March 2019	

REASONS
What is this proceeding about?
1	In October 2018, Hobsons Bay City Council issued a Planning Permit which allows, “Subdivision of the land into four super-lots, removal of native vegetation, creation of roads, carrying out of works and creation of access to a road in a Road Zone, Category 1”.  The Permit is subject to fifty-five conditions.
2	An application was lodged with the Tribunal to review Condition no. 25 of the permit.
3	Condition No. 25 relates to the Maddox Road openings and stipulates that:
Prior to the Statement of Compliance being released by the Responsible Authority, the owner must enter into an agreement with the Responsible Authority pursuant to Section 173 of the Planning and Environment Act 1987, which covenants no additional crossovers or road openings will be permitted from Maddox Road into the subject site except for the one road access point shown on the plan of subdivision.  Access to any new lots will need to be provided from the internal road network unless otherwise agreed to in writing by the responsible authority.
The owner must pay all costs (including Council’s costs) associated with the preparation, execution, registration of the Section 173 Agreement.
4	The question I need to determine is whether Condition no. 25 needs to be retained in order for an acceptable planning outcome to be achieved.  
5	Having considered all submissions and evidence presented with regard to the applicable policies and provisions of the Hobsons Bay Planning Scheme, I have decided to vary the decision of the Responsible Authority.  My reasons follow.
Is Condition 25 necessary to achieve an acceptable planning outcome?
6	In relation to the part of the subject site which interfaces with Maddox Road, the permitted subdivision provides for the creation of two of the super-lots, an easement (in the location of an existing drain) and a small part of the super-lot which fronts Kororoit Creek Road.  The plan of subdivision referred to in Condition 1 of the permit provides for one access/ egress point off Maddox Road located between proposed Lots B and C.  Because of the existing drainage infrastructure located in the south west corner of the subject site, the plan of subdivision referred to in Condition 1 does not provide any vehicular access to the small part of proposed Lot A which abuts Maddox Road.
7	The intent of Condition 25 is to ensure the retention of the single point of access from Maddox Road and thus allowing only one crossover to the eastern side of Maddox Road.
8	Land on the western side of Maddox Road is developed for industrial purposes.  Opposite the subject site on the western side of Maddox Road there are currently five road openings and twenty vehicle crossovers.  There is no footpath located along the western side of Maddox Road.  
9	The subject site abuts the eastern side of Maddox Road for a length of 641.09 metres.  Maddox Road is classified as a Collector Road, carries approximately 5000 vehicles a day, and allows for on-street parking on both sides of the road.  An on-road bicycle lane is shared with the on-street car spaces along the eastern side of Maddox Road.  The ‘Maddox Road Trail’ (which is a shared ‘off-road’ path for both cyclists and pedestrians) runs along the western edge of the subject site.  This shared path is 2.5 metres wide and is offset 0.5 metres from the western boundary of the subject site, and some 1.5 metres from the eastern kerb of Maddox Road.  The shared path links in with the existing trails located along the foreshore area to the south of the subject site, and to the residential areas northwards of the site.
10	The Council highlighted that the shared path is currently a prized piece of community infrastructure, which is well utilised throughout the whole week by both commuters and recreational users, and is a vital part of the wider sustainable transport network.  The shared path’s importance within this network will only increase over time as it is planned to link it with the Newport Railway Station and Activity Centre via Railway Parade and Market Street.  
11	The Council submitted that a very important and consistent aspect of the planning scheme, which is woven throughout, is the imperative to support sustainable modes of transport, including encouraging cycling and walking in preference to using a private motor vehicle as much as possible.  The Council submitted that the shared path has an important role in contributing to these sustainable transport objectives.  I agree with these submissions of the Council.  
12	Council’s argument was that allowing more than one access point from Maddox Road would result in additional points of conflict between vehicles and pedestrians/ cyclists thereby unacceptably compromising the safety of users of the shared path, particularly the cyclists.  This adverse safety impact would undermine the sustainability outcomes sought by the planning scheme.
13	It was the expert evidence of Mr Hunt that (even factoring in the existing and potential increasing use of the shared path by commuter cyclists) additional crossover points to Maddox Road will not unreasonably impact on the operation or safety of the shared path.  His evidence was that any potential conflicts between vehicles, cyclists and pedestrians can be appropriately managed through the provision of additional urban design and landscaping treatments.
14	I agree with the expert traffic engineering evidence of Mr Hunt, the only expert evidence before me, and have included his recommended additional measures through modifying Condition 8 of the permit.
15	Condition 8 relates to ‘Design Principles’ and requires that:
Prior to the issue of a Statement of Compliance, a report prepared by a suitably qualified and experienced urban designer must be submitted and approved by the Responsible Authority.  Once approved, the report will be endorsed and become part of the permit.  The report must clearly outline a set of Urban Design Principles and Guidelines to inform the future development outcomes for this industrial estate to enable a high quality and environmentally sustainable outcome to be achieved which aligns with the objectives of the Hobsons Bay Industrial Development Design Guidelines 2008.
16	Condition 8 requires that this report must include a range of design and development parameters relating to building heights, siting, appearance, landscaping and access.  In relation to access, Condition 8 requires that the report must include, “Requirements regarding car parking, access arrangements, loading and service areas, storage, waste, lighting and fencing.”
17	This conditions also requires that, “Once the Urban Design Principles and Guidelines are finalised and endorsed, the Owner must then enter into an agreement with the Responsible Authority under Section 173 of the Planning and Environment Act 1987 to have the Urban Design Principles and Guidelines applied to all future development applications on this site to the satisfaction of the Responsible Authority.”
18	I consider that Condition 8 provides an appropriate mechanism to ensure that any additional crossovers to Maddox Road are appropriately designed and constructed to ensure that the safety of the users of the shared path, and the on-road bicycle path, is acceptably managed.  I therefore do not consider that it is necessary to cap the number of new crossovers as part of the permit.
19	Condition 8 can be readily modified to accommodate the recommendations of Mr Hunt by requiring the urban design report to include the following additional matters:
•		All new crossovers from Maddox Road must have sight line triangles in accordance with AS 2890 – 1 within which all landscaping and/ or fences are to be limited to a maximum height of 900mm.
•		Signage and pavement marking must be installed at each access point to Maddox Road to delineate the shared path, and the on-road bicycle lane, and to define the priority which the road rules afford to cyclists and pedestrians.
•		All lots which have direct access to Maddox Road must be designed and constructed to enable all vehicles, including heavy rigid and articulated vehicles, to enter and exit the lot in a forward direction.
20	On this basis, I consider that Condition 25 can be deleted from the permit without resulting in any unacceptable impacts on the functionality, safety and operation of the shared path.  
Conclusion
21	For the reasons explained above, the decision of the Responsible Authority is varied.  A modified permit is to issue.

Tracy Watson
Member