VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment DIVISION
planning and environment LIST	vcat reference No. P619/2020
Permit Application no. pP-407-2019	

APPLICANT	JDJ Capital Pty Ltd	
responsible authority	Greater Geelong City Council	
SUBJECT LAND	275 Hamilton Highway
FYANSFORD  VIC  3221	
WHERE HELD	Melbourne	
BEFORE	Peter Gaschk, Member	
HEARING TYPE	Hearing	
DATE OF HEARING	20 August 2020	
DATE OF ORDER	25 August 2020	
CITATION	JDJ Capital Pty Ltd v Greater Geelong CC [2020] VCAT 920	

Order
1	The decision of the responsible authority is varied.  
2	The Tribunal directs that planning permit PP-407-2019 must contain the conditions set out in the permit issued by the responsible authority dated 20 December 2019 (as amended) with the following modifications:
a.	Condition 4 preamble is amended to read:
Prior to the occupation of the development, the developer must:
b.	Condition 4(c) is amended to read:
Construction of the road directly adjacent to the northern and western boundaries next to De Goldis Road and Hamilton Highway service Road as per the approved Engineering Plans.
c.	Condition 9 preamble is amended to read:
Unless otherwise agreed by the Responsible Authority, the plans will cater for road improvements works on the Hamilton Highway service road and directly adjacent to the site frontage adjacent to De Goldis Road. This will create a 6.2m pavement, extension of drain with new DN375 RCP, pavement, kerb and channel and drivable end wall to extent of the crossover for unit 1 on De Goldis Road and to the eastern boundary of the site. The plans shall show crossings, finished and existing surface levels, kerb and channel with breaks and graded connection to the existing Council drainage network.
d.	Condition 9 (c) is amended to read:
A maintenance bond of 5% of the cost of the civil works is to be paid to council and will be returned after the successful completion of a six month maintenance period.
e.	Condition 18 (c) is amended to read:
Construction of the road directly adjacent to the northern and western boundaries next to De Goldis Road and Hamilton Highway service Road as per the approved Engineering Plans.
3	The responsible authority is directed to issue a modified planning permit in accordance with this order. 

Peter Gaschk
Member			

Appearances
For applicant:	Mr Brendan O’Loan, Planning Manager with St. Quentin Consulting Pty Ltd and Mr Dean Hennessy, Director from JDJ Capital Pty Ltd.	
For responsible authority:

For respondents (Referral Authorities): 	Ms Claire McVilly, Town Planner and Mr Andrew Buchanan, Senior Development Engineer.

No appearances	

Information
Description of proposal	Planning permit PP-407-2019 was issued by Greater Geelong City Council on 20 December 2019, for the construction of six stores and one warehouse, and a seven lot subdivision of land adjacent to a road in a road zone category 1, on land at 275 Hamilton Highway, Fyansford (the review site).
The endorsed plans show one warehouse fronting onto the Hamilton Highway (259sqm), with five car spaces allocated and loading bay facing De Goldis Road.  The other six stores each have an area of 125sqm with two car parking spaces.  A 195sqm irrigation field is proposed at the rear.	
Nature of proceeding	Application under section 80 of the Planning and Environment Act 1987 – to review conditions 4(a), 4(c), 9, 18(a) and 18(c) contained in the permit.	
Planning scheme	Greater Geelong Planning Scheme (the Scheme)	
Zone and overlays	Industrial 1 Zone (INZ1)
Design and Development Overlay, Schedule 20 (DDO20)	
Permit requirements	Clause 33.01-4: A permit is required to construct a building or construct or carry out works.
Clause 43.02: A permit is required to construct a building or carry out works.
Clause 52.29-2: A permit is required to subdivide land adjacent to a Road Zone, Category 1.	
Relevant scheme policies and provisions	Clauses 17.03-2S, 21.07-2, 33.01, 43.02, 52,29, 52.06, 53.01, 65.01 and 71.02.	
Land description	The review site is located on the north-eastern side of Hamilton Highway and De Goldis Road, Fyansford.  The site is regular in shape with a frontage of 20.6m to Hamilton Highway and a depth of 100m to De Goldis Road, with an approximate area of 2026sqm. The site adjoins the service road of the Hamilton Highway, which is within a Road Zone – Category 1.
The Geelong Ring Road is located approximately 30 metres to the west of the site.
The review site is occupied by an existing dwelling and associated outbuildings oriented towards the Hamilton Highway service road.  The land is clear of any vegetation at the rear and does not include any easements on Title.
The surrounding area towards the east, south and west is within the INZ1.  Land opposite the review site is within the Commercial 1 Zone and General Residential Zone.
The western growth area is located on the western side of the Hamilton Highway and is currently within the Farming Zone (future zoning is proposed as residential).
The surrounding area is developed with a combination of different uses including warehouses, transport and dwellings.  Warehouse/industrial uses occur to the south and towards the east of the site towards Upper Paper Mills Road.	
Tribunal inspection	Not undertaken	

Remarks
1	This is an application under s80 of the Planning and Environment Act 1987 (the Act) by JDJ Capital Pty Ltd, to review conditions placed on a permit issued by the Responsible Authority (the council) on 20 December 2019 (as amended), for the construction of six stores and one warehouse and a seven lot subdivision and subdivision of land adjacent to a road in a Road Zone Category 1, at 275 Hamilton Highway, Fyansford. 
2	The conditions in dispute are:
4.	Prior to the commencement of the development, the developer must:
a)	Construct the site stormwater system including connection for unit 1 into the new underground drain and units 2-7 into the a common drainage system and a single connection into the new underground drain in the road reserve as per the approved road and drainage plans, or other nominated point/s as approved by the Responsible Authority.  The stormwater connection must be in accordance with City of Greater Geelong Standard Drawings.
c)	Construction of the road directly adjacent to the northern and western boundaries next to De Goldies Road and Hamilton Highway service Road as per the approved Engineering Plans.
9.	Prior to the commencement of works the developer shall submit for approval, engineering road and drainage plans, for new Council assets, prepared by a suitably qualified and experienced person and at the developer’s expense.
Unless otherwise agreed by the Responsible Authority, the plans will cater for road improvements works on the Hamilton Highway service road and directly adjacent to the site frontage adjacent to De Goldis Road. This will create a 6.2m pavement, extension of drain with new DN375 RCP, pavement, kerb and channel and drivable end wall to extent of the crossover for unit 1 on De Goldies Road and to the eastern boundary of the site. The plans shall show crossings, finished and existing surface levels, kerb and channel with breaks and graded connection to the existing Council drainage network. 
a)	The design and construction of the roadworks and stormwater drainage and any other new council infrastructure must be approved and supervised by council.  
b)	A fee of 3.25% of the cost of the works is to be paid to council for the checking and supervision of these works.
c)	A maintenance bond of 5% of the cost of the civil works is to be paid to council and will be returned after successful completion of a twelve month maintenance period.
18.	Prior to the statement of compliance, the developer must ensure:
a)	Construct the site stormwater system including connection for unit 1 into the new underground drain and units 2-7 into the a common drainage system and a single connection into the new underground drain in the road reserve as per the approved road and drainage plans, or other nominated point/s as approved by the Responsible Authority. The stormwater connection must be in accordance with City of Greater Geelong Standard Drawings.
c)	Construction of the road directly adjacent to the northern and western boundaries next to De Goldies Road and Hamilton Highway service Road as per the approved Engineering Plans.
3	In its written submission the council advised it had corrected the permit on 27 February 2020 relating to:
•	Corrections to the wording of De Goldis Road within Condition 9 (previously written as De Goldies).
•	Corrections to the wording within Condition 18 to reflect the correct engineering requirements (specifically 18 (b) which stated 12 metres wide – this was corrected to 6m). 
4	My reasons for this decision were given orally at the conclusion of the hearing.
5	To ensure consistency in the modified permit, I have taken the opportunity in my Order to correct the wording of De Goldis Road (written as De Goldies) within the disputed Conditions 4(c), the preamble to Condition 9 and 18(c).  I noted a similar street name correction is also required to Condition 15.  However, this condition did not form part of the review.  The council should address this matter under separate provisions under the Act.  
6	I also note the written submission from the applicant at paragraphs 5, 37 and 38 did not reflect the correct wording of condition 18 of the amended permit referred to above.  In my oral reasons I referred to the applicant’s wording of this condition and indicated the preamble would also need to be amended to retain consistency with the amended preamble to Condition 4.  Given the wording in the preamble to amended Condition 18 refers to the separate subdivision process associated with Statement of Compliance, a change to the preamble of Condition 18 is not required.
7	A modified permit is directed to be issued as detailed in this Order.    

Peter Gaschk
Member