VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment LIST	vcat reference No. P2487/2019
Permit Application no. P122/2019	
CATCHWORDS	
Application under section 80 of the Planning and Environment Act 1987, conditions requiring road construction, nexus equity need and accountability.     	

APPLICANT	Pineoak Investments Pty Ltd	
responsible authority	Brimbank City Council	
Referral Authority	AusNet Transmission Group, Transport for Victoria	
SUBJECT LAND	22 Terror Street, Keilor Park 	
WHERE HELD	Melbourne	
BEFORE	Nicholas Hadjigeorgiou, Member	
HEARING TYPE	Merits Hearing	
DATE OF HEARING	 18 February 2021	
DATE OF ORDER	 15 September 2021	
CITATION	Pineoak Investments Pty Ltd v Brimbank CC [2021] VCAT 1069	

Order

1	The decision of the Responsible Authority is varied.
2	In Planning Permit P122/2019, conditions 4, 45 and 46 are directed to be deleted. The Tribunal directs a new permit be issued in accordance with this order.
3	No orders as to Costs    

Nicholas Hadjigeorgiou
Member			

Appearances
For applicant	Mr Daniel Epstein, Barrister, Mr Epstein called Mr Beal from O’Briens Traffic to give evidence 	
For responsible authority	Ms Irene Plakidis, Town Planner	
For referral authority	No appearance	

Information
Description of proposal	Construction of a warehouse associated car parking in the erection and display of a major promotion electronic sky sign.	
Nature of proceeding	Application under section 80 of the Planning and Environment Act 1987 – to review the conditions 4, 45 & 46, contained in the permit.
	
Planning scheme	Brimbank Planning Scheme	
Zone and overlays	Industrial 1 zone (INZ1)
Development Contributions Plan Overlay 2 (DCPO2)	
		
Tribunal inspection	8 July 2021   	

Reasons

1	This was an application for review pursuant to section 80 of the Planning and Environment Act 1987 (PEA 1987) seeking the deletion of conditions 4, 45 and 46 relating to the construction of part of Terror Street Keilor.
2	Specifically, these conditions require:
Section 173 agreement
(4)	Prior to the commencement of works the owner of the land must enter into an agreement with the responsible authority pursuant to section 173 of the planning and environment act 1987. This shall require the construction of Terror Street in accordance with the approved engineering plans, required by condition 45 from the sealed portion of Terror Street south of the land to the north boundary of the application site. The works must be completed prior to the occupation of the site at the full cost of the owner/applicant (including the payment of checking and supervision fees to the council) unless otherwise agreed in writing by the responsible authority.
Engineering
(45)	Before the development starts detailed design drawings and functional layout plans must be submitted and approved in writing by Council for the construction of Terror Street from the existing construction section of Terror Street (south of the site) to the north boundary of the site. This will require:
(a)	Kerb and channelling and associated drainage
(b)	Vehicle crossings constructed to the road to suit the proposed accessways;
(c)	Public lighting
Standard checking and supervision fees to Council will apply.
(46)	Access to the site and ancillary roadworks must be constructed in accordance with the requirements of the responsible authority.
3	The responsible authority submits that the proposed conditions are necessary in order to achieve an acceptable planning outcome.
4	The conditions as set out above, require the full construction of Terror Street for that part of the street from the unsealed portion of Terror Street south of the review site to the northern boundary of the review site. This is a distance substantially more than that directly abutting the review site.
5	In the alternative the responsible authority submitted there ought not be any opposition from the applicant for the construction of that part of Terror Street immediately abutting the review site.  I am not aware that proposition has been formally put to the applicant nor accepted by the applicant.
6	On the other hand, the applicant for review submits conditions 4, 45 and 46 are entirely unreasonable and should be deleted particularly having regard to the fact at least two other properties and a water authority would likely benefit from such a requirement without bearing any reasonable costs associated with that benefit.
7	Both the responsible authority, represented by Ms Plakidis and the applicant for review, represented by Mr Epstein made detailed submissions supporting their respective positions.
8	Having considered those submissions and the evidence of Mr Beal for the applicant for review, I have formed the opinion that conditions 4, 45 and 46 should be deleted from the permit.
9	The reason I have come to that conclusion is set out in the reasons below.
Site details
10	The review site is located on the eastern side of Terror Street. The site has a frontage the Terror Street of approximately 51.1 m and a total site area of 5672 m². The site is currently occupied by concrete batching plant comprising of a small industrial building at the south-east corner of the site, manufacturing facilities and an outdoor storage yard.
11	The site is located at the end of a small industrial estate access via Fullarton Road to the south. To the north and north west is the Western Ring Road corridor. Directly above this part of Terror Street and running along the Western Ring Road corridor are high voltage transmission lines.
12	Immediately to the east is land zoned Public Use Zone which contains a pressure reducing station operated by City West water.
13	Directly to the south at number 12. Street and further south is industrial one zoned land and is comprised by to warehouse office facilities occupied by RPM hire.
Background History
14	During the course of the hearing the responsible authority advised the Tribunal the existing use of the site as a concrete batching plant was authorised by permit P1054 issued on 9 February 1990. That permit was subject to a number of conditions but relevantly condition 22 on that permit states:
22.	The unconstructed portion of Terror Street north of Victory Street shall be paved to the elongation of the southern entrance to the property to the satisfaction of the responsible authority.
These roadworks have not been undertaken.
15	While there was some evidence the council’s compliance department followed up the non-compliance of clause condition 22, however, nothing definitive has been resolved. I was advised during the course of the hearing that there was now an application to amend that permit to delete condition 22.
Current application
16	The current application is comprised of the demolishing all buildings on the site and ceasing the current use of the site as a concrete batching plant. It is proposed to construct a warehouse type building with the footprint of approximately 2538 square metres, with a maximum building height of 12.5 m and to operate the warehouse 24 hours a day. Staffing servicing the warehouse would be between 9 to 14 staff. Parking is provided on site for up to 32 car spaces. There is a 5 m landscaped strip across the front of the site and two crossings service access to the site, one located on the southern side of the site and the other on the northern part of the site.
17	The review site itself is zone Industrial 1 Zone (INZ1) and is affected by the Development Contributions Plan Overlay schedule 2 (DCPO2).
18	The responsible authority submits the review conditions all directly relate to the proposed development and submit there is a direct nexus between the conditions imposed on the permit and development proposed to be undertaken. 
19	The responsible authority submit that had the conditions not been imposed they would have refused the grant of the planning permit for this development.
20	That point, in my view, is rather academic, as I would have anticipated had there been the refusal to grant a permit there would have been a high likelihood to have been a review sought of that refusal. Nevertheless, the tribunal must deal the application that is before it, which is an application to delete those conditions.
21	Both parties submitted details submissions to the tribunal in respect of  relevant legislation that empowers responsible authorities to impose conditions on permits.
22	They set out some details section 62 (5) (b) and (c) of the Planning and Environment Act 1987 which states:-
5	In deciding to grant a permit, the responsible authority may---
(b)	included condition requiring specific works, services, or facilities to be provided or paid for in accordance with an agreement under section 173; or

( c)	include a condition that specified works, services, or facilities that the responsible authority considers necessary to be provided on or to the land or other land as a result of the grant of the permit be---
(i)	provided by the applicant; or
	(ii)	paid for holy by the applicant; or
	(iii)	provided or paid for partly by the applicant where the remaining cost is to be met by any minister, public authority or municipal Council providing the works, services or facilities.

23	The responsible authority submitted the development permitted under this permit, facilitates a more intensive use of the land than the current use, and because of this its request for the construction of the road is justified.
24	Mr Epstein on the other hand does not accept that proposition. He submitted through the evidence of Mr Beal, Traffic Engineer, that the existing use would involve trucks delivering raw materials and concrete mixers delivering finished products and their arrival and departure of staff.
25	Mr Beal went on to submit that warehouses typically generate less traffic than industrial uses on account of the lower activity levels and lower staff numbers in general.
26	Mr Beal submitted in his opinion;-
•	regardless of the circumstances under which Terror Street was partially constructed, there is no imperative to construct the balance of Terror St in the near future by reason of traffic volumes, road condition or dust;
•	it would be inequitable to require the permit holder to fund the full design and/or construction costs, which under the auspices of a council construction scheme, would be apportioned amongst other benefiting owners accordingly;
•	there is no real nexus between the approved development and Council’s requirement to construct;
•	conditions 4, 45 and 46 should be struck out
27	Mr Epstein submitted it was inequitable to require the applicant to meet the cost of construction of essentially the balance of the unconstructed part of Terror Street to its northern boundary, given that the change proposed was not significant, the fact there were other beneficiaries that were not being called upon to contribute to the construction and that on, balance the responsible authority had not established the necessary nexus to justify the imposition of these three conditions.
28	Mr Epstein made submissions in respect of the principles of ‘agent of change’ and ‘impact mitigation’ or King Ranch type approaches. I don’t propose to recite those submissions in any detail.
29	While it was acknowledged, the responsible authority’s fallback position was one where the conditions could be amended to only require the construction of the road abutting the review sites frontage, this was not acceptable to the applicant for review.
30	I will now set out my analysis in respect of this decision.
Tribunals Analysis
31	I find the key issues in this proceeding are:-
•	are the conditions able to be validly imposed?
•	Do the conditions address the issues of need, equity, accountability and nexus?
Validity
32	There was really no dispute between the parties asto whether section 62 of the PEA 1987 facilitates and allows the imposition of conditions such as those proposed in this permit. The real question in this proceeding is the following issue.
Do the conditions address the issues of need, equity, accountability and nexus fairly and reasonably?
Need
33	There is a dispute between the parties as to whether there is a need for the unconstructed portion of Terror Street to be constructed as a consequence of the permit being granted. As mentioned previously Mr Epstein called Mr Beal to give evidence on this question. Mr Beal was clear in his opinion outlined above that the proposed development of a warehouse, even with the provision of the statutory rate of car parking, was unlikely to generate any significantly different levels of traffic to and from the site than that currently eperienced. In fact, he submitted in terms of road usage, the number of heavy vehicle movements likely to visit the site is likely to decrease.
34	The responsible authority did not in my opinion provide any conclusive evidence that the number of traffic movements are likely to change as a consequence of the approval of the warehouse on this site.
35	In my view there are two other issues that are relevant.  The first is the unconstructed road is in reasonable condition given the existing use of the site. The council did not take me to any material that would indicate the existing road required regular and frequent maintenance.
36	The second is the portion of the road to be constructed includes an area utilised by others and they are not being required to make any contribution towards the construction of the road the subject of these conditions. Even if the Council’s alternative is adopted, that is, only constructing the road immediately abutting the frontage of the review site, there are other beneficiaries of the construction of that part of the road to the north of the site.
37	Mr Epstein took me to many tribunal cases to substantiate his submissions. These include cases such as the Eddie Barron Construction Pty Ltd v Shire of Pakenham and Anor [1990] 6 AATR 10 (the Eddie Barron decision) often referred to in these type of proceedings, the High Court decision in Cardwell Shire Council v King Ranch Australia P/L [1984] HCA 339 (the King Ranch decision), and Pownceby Holdings Pty Ltd v Macedon Ranges SC [2004] VCAT 2134 (Pownceby decision).
38	Mr Epstein referred me specifically to the Pownceby decision at paragraphs 35-37 where the court said;
35	Before addressing each in turn I first referred to the basis on which conditions relating to contributions by permit applicants are considered. In order to impose permit conditions in the form sought by the council there has to be a clear nexus between the application and the works demanded. The basis of this principle is found in Pyx Granite Co Ltd v Ministry of Housing and Local Government [1958] 1 QB 554 and many other cases which followed. These cases have been discussed in Rosemeier v City of Greater Geelong(No 1) [1997] and 20 AATR 86 from page 102 onwards. In Pyx Granite at page 572 Lord Denning said;
Although the planning authorities are given very wide powers to impose such conditions as they think fit, nevertheless the law says that those conditions, to be valid, must fairly and reasonably relate to the permitted development. Planning authorities are not at liberty to use those flowers for nocturia motives, however desirable that object may seem to them in a public interest.
36	This decision was followed by Eddie Barron Constructions v Shire of Pakenham{1990} 6 AATR which warned: Care should also be taken to ensure that infrastructure to be provided is ‘needed’ as distinct from ‘merely desirable’.
37	Thus, without agreement, it is not sufficient to oblige a permit applicant to provide something that is desirable or would be good to have, even if that is for the benefit of the community, as there must be a proper and identifiable relationship between the required works and the matters permitted in a permit conditions.

39	In my opinion, I can understand the public good that may arise out of the construction of an unconstructed portion of Terror Street. However, I am not satisfied, on the material before me, that there is a need for the construction to take place, to the extent the applicant for the permit should meet the full cost of the design and construction of the road.
40	I have formed issue view partly because of the unique circumstances of the location of this part of Terror Street. Essentially the northern part of Terror Street provides only local access the two properties and the service authorities of City West Water and Metro Ring Road maintenance.
41	Its construction is not essential, or required to be designed for a more broadly community benefit.
42	Thus, I am not persuaded there is a demonstrated need or nexus that would require the applicant for permit in this application to meet the full cost necessary to construct the road to a standard set out in conditions 4, 45 and 46.
Equity and Accountability
43	In terms of equity, as stated earlier other properties and authorities will have the benefit from the construction of the road with no contribution being made towards the road construction. In particular that part of Terror Street between the review site’s southern boundary and the existing constructed part of Terror Street further south appears to me completely unjustified.
44	There are other methods of ensuring an equitable distribution of construction costs and these should be explored by the responsible authority if they desire to have the northern unconstructed portion of Terror Street constructed.
Accountability
45	in terms of accountability the applicant the permit acknowledges that they would participate in a fair and reasonable apportionment of costs for the construction of the northern part of Terror Street.  However, the standard of construction sought by these conditions for that part of Terror St would need to be resolved between the contributing parties. Clearly the question of the necessity of a footpath in this location is something that would need to be resolved.
Conclusion
46	For the reasons given above I find the condition 4 is unacceptable and should be deleted. The requirements of the condition are unreasonable giving the specification standards set out for this essentially ‘dead end’ location in industrial location and the likely associated costs to provide those standards of construction set out in condition 4, are both unfair and unreasonable to impose on one party, the applicant in this proceeding.
47	Accordingly, I will direct condition 4 be deleted and it follows that conditions 45 and 46 will also be deleted as they are dependent of condition for being justified.

Nicholas Hadjigeorgiou Member