VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment LIST	vcat reference No. P293/2020
Permit Application no. 10/0137-1	
CATCHWORDS	
Section 82 of the Planning and Environment Act 1987; Surf Coast Planning Scheme; application to amend existing permit; notably seeking permission for revised ground level commercial waste storage arrangements, Council supports proposal but objection from a residential apartment in higher part of building; Tribunal review and hearing; issues of ‘amenity impacts’, futility, orderly planning, and ‘need’; permit directed to be issued.   	

Applicant for review	Willona Pty Ltd	
Responsible authority	Surf Coast Shire Council	
Respondent	Plan A Planning 	

SUBJECT LAND	39 The Esplanade  TORQUAY  VIC  3228	
HEARING TYPE	Hearing	
DATE OF HEARING	31 May 2021	
DATE OF ORDER	1 September 2021	
CITATION	Willona Pty Ltd v Surf Coast SC [2021] VCAT 993 	

Order
1	In application P293/2020, the decision of the responsible authority is varied.
2	Pursuant to Clause 64 of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998, the permit application in this proceeding is amended as follows – the number of intended 660L waste storage bins is amended to be ‘four’ rather than ‘five’ and (for the avoidance of doubt) the  description of the whole proposal is clarified as set out in Order 3 below.
3	In planning permit application No. 10/0137-1 (Permit), the following amendments to the existing planning permit No. 10/0137 are approved:
a	Changes to the endorsed plans to provide for a new waste storage area above the vehicle ramp to the basement and a revised access pathway adjacent to the northern boundary of the site, as shown in the amended architectural plans prepared by Design & Drafting all dated 7 May 2019/the amended landscape plan prepared by PPBS Architects dated 30 May 2019 and consistent with the amended waste management plan referred to in Order 3(b) below.
b	An amended waste management plan, being the plan by Leigh Design dated 6 May 2019.
c	Two new Condition 1 sub-clauses, inserted with appropriate numbering, which read as follows:
The removal from the ‘basement’ architectural plan of any reference to above-bonnet style basement car park storage units.
The materials for the privacy screen for the waste bin storage area above the basement ramp to be opaque up to the height of the top of the anticipated 660L waste bins, but then transparent for the remaining height up to 1800 mm above the finished floor level of this waste storage area.
d	A new permit condition 17 (bin storage area surface and cleaning) as follows: 
Bin storage areas shall be surfaced and capable of being washed down with waste water directed to reticulated sewer via an appropriate litter trap to the satisfaction of the responsible authority.
e	The re-numbering of the permit conditions as required.
4	Once the permit holder has provided it with appropriate further amended architectural plans for endorsement to comply with Order 3(c) above, the responsible authority is directed to ‘seal’ same, the 6 May 2019 amended waste management plan and also the 30 May 2019 amended landscape plan and then issue an amended Permit in accordance with this order.

Philip Martin
Senior Member			
Appearances
For applicant for review	Ms Alex Guild (barrister)	
For responsible authority	Mr Ian Pridgeon (solicitor)	
For respondent	Ms Anna Borthwick (consultant planner)	

Information
Description of proposal	Amendments to the existing planning permit No. 10/0137	
Nature of proceeding	Application under section 82 of the Planning and Environment Act 1987 – to review the decision to grant amendments to a permit.	
Planning scheme	Surf Coast Planning Scheme 	
Zone and overlays	Special Use Zone Schedule 5 (SUZ5), Precinct T3
Design and Development Overlay Schedule 6 DDO6)
Parking Overlay Schedule 2	
Permit requirements	Bearing in mind there is no ‘secondary consent’ permit condition in the existing permit, permission is required for the proposed changes to the endorsed plans/proposed buildings and works pursuant to:
•	Clause 37.01-4 and Clause 4.0 of the Schedule to the SUZ5; and
•	Clause 43.02-2 and Clause 2 to the Schedule to the DDO6.	
Relevant scheme policies and provisions	Clauses 11.03-2, 11.05, 11.07, 12.02, 12.04, 15.01, 15.02, 17.01, 21.01-1, 21.02, 21.08, 22.02 and 65. 	
Land description	The subject land features a three storey building featuring four commercial tenancies at ground level and two dwellings over the upper two levels.  The site is on an esplanade location and within the local activity centre.  With the ground floor activities, most notably a café operates one of these tenancies.	

Reasons
What does the application involve?
1	In relation to the three storey building on the corner of Gilbert Street and The Esplanade on the foreshore at Torquay, the top two levels are residential and the ground level features four commercial tenancies.  Notably, a ground level café operates called ‘Pond Café’.
2	This complex was developed pursuant to a planning permit No. 10/0137 issued on 29 September 2010 (Permit).  Condition 7 of the Permit requires the preparation and approval of a Waste Management Plan (WMP), which must then be complied with.  The relevant WMP was duly prepared and approved on 2 December 2010.  The existing situation pursuant to this current approved WMP is that each commercial tenancy gets one 240L general waste bin and one 240L recycling bin and a dedicated area to store same.
3	Moving to recent circumstances and points of dispute regarding the day-to-day operation of the complex, Council has received complaints regarding alleged non-compliance with the WMP.  This has included concerns being raised by one of the upper apartment owners (Willona Pty Ltd) regarding the operation of the Pond Café.  This upper apartment is known as 39A The Esplanade.  The Council written submission in this proceeding indicates at [1.11] that Council’s investigations indicate that the Pond café is generating waste at a level that makes compliance with the approved WMP ‘difficult’. 
4	Coming out of this situation, the Respondent (whom I understand owns all four ground floor commercial tenancies) has sought planning permission for certain changes to the Permit.  As usefully summarised at [2] of Ms Borthwick’s written submissions, the proposed changes are:
•	Changes to the endorsed plans to provide:
o	An additional five 660 litre bins above the vehicle ramp to the basement as shown on the plans.
o	A [revised] access pathway on the northern boundary of the site. This includes infilling the pebbled area of the path with concrete for safe and efficient access and movement of bins to and from the existing and proposed storage area.
•	An amended waste management plan.
•	Insert new condition 17 bin storage area surface and cleaning.
•	Renumbering of conditions as required.
but see my comments further below about the number of new 660L bins proposed and also see the ‘clarification of the wording of the proposal’ aspect of Order 2 above.
5	It seems fair to say that the proposed new storage arrangement for the new waste storage bins (above the vehicle ramp) is the ‘big ticket’ change that has attracted the most controversy.  This area is currently a simple ‘ledge’ area, and falls entirely within the ‘body corporate’ floor area of the complex.  This aspect of the proposal includes installing a new privacy screen alongside where the bins would go, with a view to screening the available views of the bins, when viewed from the other end of the basement ramp/nearby footpath area.
6	In terms of to what extent the proposal adds to the ‘waste storage capacity’ for each of the four commercial tenancies, to avoid duplication, I refer to the useful explanation of this shown at the table at page 15 of Ms Borthwick’s written report.  Suffice to say that there would for each commercial tenancy be a substantial increase in the capacity to store general waste and also one extra 240L recycling bin.
7	The proposal also involves altering the existing accessway pathway, as follows.  Whereas currently that pathway involves both a hard surface area and a strip of gravel, the hard surface area would be expanded to allow for the width of the proposed 660L bins.  Beyond the gravel, there is no actual landscaping currently in this pathway area.
8	Some other useful background is as follows:
•	The site is on the foreshore and inside the local activity centre, so the term ‘lively’ seems appropriate in describing the locality.
•	Whilst ‘building and works’ approval is needed under both the Special Use Zone Schedule 5 and the Design and Development Overlay Schedule 6, for our purposes, it is significant that the latter control involves an exemption from third party appeal rights.  Hence in practice the applicant for review here can only rely on the ‘building and works’ permit trigger pursuant to the SUZ5.
•	Unusually, there is no ‘secondary consent’ type permit condition in the Permit conditions.  While it is a matter for debate whether some or all of what is in debate here might otherwise have been more easily processed as ‘secondary consent’, the permit applicant has no choice but to apply for a formal planning permit amendment, which in the usual way was publicly advertised.
9	Coming back to the planning permit application history here, despite objections, the Council Delegate Planner supported the proposal and Council has issued a Notice of Decision to Grant a Permit.  Willona Pty Ltd (Willona) has sought the Tribunal’s review of same. 
10	This hearing came before me on 31 May 2021.  Over the hearing I heard submissions from the three advocates listed above.  
11	One point of dispute at the hearing was the two ‘car park storage units’ installed in the car park.  These are the style of storage areas that are intended to sit above the bonnet of the car and the proposed new endorsed plans overtly refer to them.  It was argued for Willona that these units are of an inappropriate size, lack proper planning permission and are so close to a fire escape and illuminated fire escape sign, as to possibly breach the relevant fire safety legislation.  To add further intrigue to the situation, Mr Pridgeon for Council queried if these storage units, being internal, even need any formal planning approval.
12	By the end of this discussion, I raised the idea that the proposed endorsed plans be modified by a new permit condition (if things got to that stage) to remove any reference to these plans.  There seemed to be consensus (or close to) that this approach is useful and hence I have approached my findings on this basis.  The validity or otherwise of these basement storage areas (and whether they in fact need any planning permission) is an issue for another day.
13	Similarly it was queried by Willona why the proposal is for five new 660L bins, when the proposed new WMP only provides for four such large bins (consistent with there being four ground floor commercial tenancies).  Ms Borthwick in her oral submissions indicated a willingness for the Tribunal to bring this aspect of the proposal back to four 660L bins.  This seems sensible and hence I have approached this aspect of the proposal on this basis i.e. that there would be four rather than five new 660L bins.
14	There was discussion at the hearing regarding the possibility of my visiting the site.  I can confirm that with the vagaries of covid lockdowns, this has proved to be impractical.  However I was shown a very good set of photographs and materials by the parties, I afterwards used the ‘street-view’ function on Google-maps and I am already somewhat familiar with the Torquay foreshore.
Findings of the Tribunal
15	There was a lot of very detailed discussion before me at the hearing, both about the operation of the complex and the case law on ‘futility’.  Dealt with poorly, this situation could easily create a ‘getting lost in the detail’ type of outcome.  However this type of dispute in my view is really calling out for the member to cut-through and make some clear findings about the merits and applicable law.
16	With this approach in mind, rather than taking a more elaborate approach, I have sought in my findings below to capture the determinative issues and make my conclusions on them in a succinct and coherent way.
17	The key points I will address are:
•	Some inherent positive attributes I see of the proposal.
•	My findings on the futility issue.
•	Whether there are any ‘fatal planning merits’ factors going against the proposal.
Inherent positive attributes of the proposal
18	I place major weight on the following significant positive inherent/basic aspects of the proposal.
19	Firstly, the permit applicant highlights that there have been complaints about alleged non-compliance with the existing WMP.  Mr Pridgeon has confirmed that Council has received such complaints.  Hence it is self-evident that the current WMP arrangements are problematic.
20	Second, Ms Borthwick highlighted that the current waste storage area for the café is at the front of the complex, rather than at the rear.  She in particular highlighted that every time the occupants of the Willona residential apartment need to get to their ground floor front entry area, he/she/they need to walk right past the front-oriented waste storage area for the Pond cafe.  Hence Ms Borthwick emphasised that if there are any existing ‘odour’ issues associated with same, they will directly impact on such movements by the Willona apartment occupants, coming in and out of their ground floor front entrance.  Likewise with any noise associated with the use of this existing café front waste storage area.
21	These first two points I have just made were not in themselves particularly contested by Willona before me.
22	Third, the proposed additional 660L waste bins will obviously provide substantially greater capacity and flexibility for dealing with these existing waste management pressures and the associated angst about alleged deficiencies with the existing WMP.  Notably, it allows the Pond café the opportunity to re-focus the storage of its waste away from the more sensitive ‘front of building’ existing storage position.
23	Fourth, I accept that the ‘ledge’ area proposed to be used to store the new 660L bins is a low-sensitivity area.  I say ‘low sensitivity’ because it is:
•	Located well back from the nearest external boundary. 
•	Hence only visible in a more distant way from the public realm. 
•	Located in what you might loosely call the ‘guts’ of the building, away from more sensitive areas like the front entrance or private courtyards.
•	Not currently being occupied or utilised for other uses. This is passive space which is above the rear section to the basement ramp, which is dropping down some considerable height below the ledge. 
24	Fifth, I see it as an important positive feature to the proposal that it includes a balustrade or privacy screen, blocking views between the bins and the other end of the basement ramp and nearby public realm.  By providing this visual screening of the bins, the visual impact of the bins is suitably mitigated and I accept suitable respect has been shown for the adjacent streetscape. 
25	Sixth, I acknowledge that there are two stairwell/corridor windows that the Willona apartment occupants move past as part of using their apartment, where these windows (one more directly) lie fairly close to the proposed new storage area.  However I see this situation as counter-balanced by the fact that these windows are of a limited size and have opaque glass, such that any amenity impacts would be quite marginal.  I consider the fears expressed by Willona about the proposed new bins causing a significant loss of daylight through these window(s) to be genuinely held but exaggerated.  Also these two windows are associated with a less sensitive stairwell/corridor area – it is not as if this is say a living room window involved.
26	Seventh, I accept that certainly the Pond café (and to some extent the other commercial tenancies) have a real ‘tourism flavour’, where an important part of the purposes of the SUZ5 affecting the site is the promotion of tourism in this location.  For example, one of the overt purposes of Schedule 5 is to “provide a mix of tourism related uses…”.  If the improved waste management arrangements helps the four commercial tenancies be successful, I accept this is consistent with this emphasis on tourism in the SUZ5 and related local policies.  
27	To summarise then, I see these various positive factors as together creating a strong prima face ‘merits case’ for the proposed to be approved.  That is to say, I accept that the indications are that the existing WMP situation has became problematic, which makes it unsurprising that a planning proposal has then been put forward to address this issue.  This planning proposal involves utilising what I have found to be a low-sensitivity area of this complex, which will have the benefit of creating greater waste storage capacity and flexibility for the complex. 
28	I now turn to my next topic of ‘futility’.
Futility – is this a fatal flaw in the proposal?
29	Willona highlighted that the ledge area in question (above the basement ramp) is entirely body corporate (b/c) space, and that it controls 25.5% of the b/c voting rights.  That is, of the 522 lot entitlements in question, Willona controls 133 or 25.5% of them.  
30	Relying on this situation, Willona strongly contended that in practice the permit applicant will never be able to get the necessary 75% ‘special resolution’ vote passed by the subject Owners Corporation. Indeed, I was told that such a vote had in reality already been recently attempted at a meeting of the b/c and that vote had failed. 
31	In response, the permit applicant did not query in itself the extent of b/c voting rights which Willona controls. Rather, Ms Borthwick emphasised that discussions can continue, ‘voting intentions’ can change over time and that the extent of the infringement here upon the b/c was (in the broad scheme of things) minor. 
32	Both Ms Borthwick and Ms Guild referred to considerable Tribunal case law on ‘futility’.  There seems little value in me trying to at this point summarise this body of ‘futility decisions’, particularly as the key cases are now fairly well known anyway. 
33	For the following reasons, I find that the proposed use of the current ledge area for storing the 660L bins does not constitute a fatal example of ‘futility’, even with Willona advising me that it controls 25.5% of the b/c voting rights and that it will continue to oppose the necessary b/c special resolution. 
34	In relation to ‘futility’, I am conscious that the relevant Owners Corporation for this complex is not itself a party to this proceeding.  The ‘futility’ issue would be ‘jumping off the page’ more if this was the case. 
35	It also goes against a ‘futility’ finding that the proposal, in my view, involves a fairly discrete/modest amount of b/c space, in the context of this being a fairly substantial three storey mixed use building. 
36	It is also important to acknowledge the following, with how b/c areas have historically been used in units and apartments in Victoria.  I accept that historically it is very common for multi-unit or apartment complexes to have a communal bin storage area, which is entirely located on b/c space.  Hence I am satisfied that, viewed conceptually, the intention here to store waste bins in an entirely b/c area is hardly novel. 
37	In the context I have described in the paragraph above, I am struggling to see that the proposed ‘ledge waste storage area’ can be described as anything other than a ‘minor’ change to the existing body corporate arrangements for this three storey building.  This is a relatively large three storey complex and it is not as if the body corporate is using the ledge area in any other active manner currently.  
38	In placing weight on what I consider to be the ‘minor’ nature of the encroachment into the overall b/c area for this complex, I see the circumstances here as broadly similar to those before the Tribunal in the Ryan, Hamilton and Alecsi decisions.  In all of these decisions a ‘futility’ submission was rejected, where the Tribunal found the extent of the relevant encroachment to be ‘minor’. 
Are there any other fatal ‘planning merits’ considerations? 
39	I am conscious that other objections were raised by Willona at the hearing, beyond my discussion up to this point in these reasons.  I have explained below why I see no fatal aspects arising with any of these other objections.
40	Where Ms Guild raised ‘amenity’ concerns about the cafe operator ‘bursting at the seams’ and causing ‘collateral amenity damage’ to the Willona occupants, I don’t accept (even if this is true) that this is any good reason to refuse the proposed new waste storage arrangements.  There is credible evidence before me of an ‘existing waste problem’ and there is logic in the permit applicant now putting forward a proposed new waste storage arrangement to address that existing problem. 
41	If Willona has real evidence of the Pond café breaching its present planning permit conditions and/or any other relevant regulatory controls, Willona has its own planning enforcement rights and/or can seek to have suitable regulatory bodies investigate the situation. 
42	I note that Willona urged the Tribunal to find that it would be ‘premature’ to approve the intended expanded waste arrangements, until formal planning approval is granted for either the café and/or some/all of the other three ground level commercial tenancies to operate in a more intense manner.  Following this line of thinking, my potentially approving the proposed expanded waste approval arrangements is a ‘trojan horse’ for the respondent then seeking planning approval for more intense commercial activity in the ground floor of the subject land. 
43	However, I find this line of submission unconvincing, for the following reasons:
•	I accept there is credible evidence before me of an existing problem with the waste storage for the complex, that would benefit from an improved ‘waste storage’ outcome. That is, the debate about how to improve the existing waste management situation is much more than just an ‘academic exercise’.
•	Any future planning permit application for more intense commercial activities on the ground floor will need to be separately addressed on its own planning merits, at that time.  I consider it an over-reach to take the view that I should refuse this permit application because it might allegedly have a bad influence on some possible other future permit application(s), which may or may not actually come about and which might or might not be approved. 
•	I am not sure that this whole concept of ‘prematurity’ being advanced by Ms Guild is even recognised as a legitimate planning concept per se in Victoria.  I say this because usually in Victoria a permit applicant does not need to in itself demonstrate ‘need’, in putting forward his or her planning proposal.
44	I would be more concerned about the proposed widening of the hard surface for the access pathway if this involved removing existing landscaping.  However all that would be removed is existing gravel, so I agree with Ms Borthwick that the amenity implications of this seem minimal.
45	Whilst acknowledging legitimate arguments both ways, relying on the following two points, I find that the conversion of the existing ledge into a bin storage area does not constitute a new use.  This new storage area is (for a three storey building) what I regard as a modest floor area, the use of which I find to simply be ancillary to the existing commercial tenancies, also relying on the legal maxim de minimus non curat lex.  This finding is reinforced by the following point – Ms Borthwick confirmed in her oral submissions that the existing commercial waste storage areas fall outside of the relevant ‘assessed net lettable floor areas’ (NLA) involved.  Hence the creation of the new storage area for the 660L bins will not change these existing NLA figures for the commercial tenancies.
46	It seems to me that much of Willona’s unhappiness about the existing ground floor situation might be loosely described as its frustrations about how the situation has unfolded over time with the implications of the day-to-day operations of the Pond café.  Any such broader day-to-day concerns held by Willona would need to be separately taken up by Willona with Council.  Or otherwise both Council and Willona have planning enforcement rights pursuant to Section 114 of the Planning and Environment Act 1987.
47	It is also appropriate that I give some ‘planning merits’ weight simply to the fact that Council supports the proposal.  In particular, all of Council’s Waste, Engineering and Environmental Health Departments (subject to the new Condition 17) did not oppose the proposal.
conclusion
48	For the reasons set out above, I have made orders that an amended permit issue.

Philip Martin
Senior Member