Victorian Civil and Administrative Tribunal|2013-03-18

The Application effectively proposes to allow the service station and convenience store to operate between midnight and 6.00am when it is presently required to close. Mr Growcott undertook an attended noise monitoring of the existing operation of the premises on one night where he observed the impacts of various noisy activities on the closest residences. Mr Growcott also undertook an unattended noise logging of an entire day's background noise at the review site.
As a result of this analysis Mr Growcott's evidence is that there will be occasional events on the review site which will produce noise at the closest residences at 516 Pascoe Value Road and 28 Stewart Street that will exceed the sleep disturbance criteria, if their windows are open. Mr Growcott did not give any evidence as to how occasional, or frequent, these events might occur. In relation to these two adjoining properties, I first will analyse the impact on 516 Pascoe Value Road, which is the adjoining residential property to the north of the review site.
In his statement of evidence, Mr Growcott predicted that reasonable behaviour on the review site will result in a decibel reading of 62 dB(A) at the nearest windows at 516 Pascoe Vale Road, with unreasonable behaviour resulting in a noise level of 70 dB(A). However, during my questions Mr Growcott conceded that these estimates were based on his presumption that all activities would take place under the canopy of the service station, some 18 metres from the nearest windows at 516 Pascoe Vale Road. However it was the submissions of Mr Sayer that cars attending the convenience store only, as opposed to those also filling up with petrol, would park along the northern boundary of the review site, approximately 4 metres away from the said windows at 516 Pascoe Vale Road.
Upon my questioning, Mr Growcott informed me that with noise sources at a reduced distance of four to 4.5 metres, reasonable behaviour would produce a noise level of 74 dB(A) at the nearest windows, and unruly behaviour a level of 82 dB(A). Each of these values are above the sleep disturbance criteria set out in Mr Growcott's evidence, for when the nearby dwellings' windows are open. Indeed the 82 dB(A) level is even above the sleep disturbance criteria when windows are closed. Again I was not enlightened as to how often the sleep disturbance criteria might be breached.

The subject site is a long narrow site located at the corner of Pascoe Vale Road and Devon Road, Oakpark. Immediately adjoining the site to the north is a school. To the east, between the McDonald's restaurant and the railway, is the 'bakery site' for which, as I have outlined above, a permit was issued and subsequently amended at the direction of the Tribunal. The permit allows the construction of 107 dwellings on the site in a mixture of townhouses and apartments. Construction has not commenced although the original bakery building on the site has been demolished and a safety fence erected around the site.

It is notable that this section (of) Pascoe Vale Road passes through an area which is predominantly residential. Development is predominantly single dwellings on a range of allotments with only a sprinkling of medium density development. There are no other commercial premises on that road within 1km of the McDonalds restaurant in both directions. A small local activity centre is located on the eastern side of the railway at the intersection of Waterloo Road and Snell Grove.

Mr Delaire suggested that the amenity of residents on the west side of Pascoe Vale Road was already reduced due to the levels of traffic on that road. Pascoe Vale Road is normally a very busy arterial route during daylight hours but the recent introduction of an overnight curfew on truck traffic has created a significantly quieter residential environment overnight. On both my site visits, patronage of the restaurant was very low, there was only limited drive-through traffic and traffic on Pascoe Vale Road was very light. There were intervals when there were no vehicles in sight and the overall residential environment was very quiet and undisturbed. This is a situation where residents' existing amenity is not reduced by the presence of existing adjacent commercial activity and where, through the introduction of the truck curfew, expectations of an undisturbed overnight residential amenity have been reinforced

In this case the area became very quiet after midnight and I was not presented with any evidence which suggested that there would be a significant community benefit in allowing the restaurant to trade later than its current hours with the possibility for the existing residential amenity to be disturbed. This is reinforced by Mr Davies's evidence that more than 60% of customers overnight could be expected to use the drive-through facilities.

The ability to show compliance with technical amenity standards does lend weight to the applicant's case in this matter, but ultimately the assessment of amenity impacts will inevitably involve a degree of subjective judgement to determine whether a proposal is acceptable. I find that the extension of trading into the overnight hours is not acceptable in an area whose existing characteristic is overwhelmingly residential, a characteristic which council are reinforcing by its approval of the redevelopment of the 'bakery site'.

Likewise the unattended noise logger results attached to Mr Growcott's evidence shows that this area that surrounds the review site does become quiet after midnight, with the background noise significantly reducing. I find that, this being a residential area, it is not appropriate to introduce a 24 hour operation of the service station and convenience store, particularly when the acoustic evidence demonstrates that the use at these hours will result in sleep disturbance for the nearby residences, when they have their windows open. I think it is reasonable for residents within a Residential 1 Zone to expect to be able to sleep with their windows open, despite the proximity of the main road.
I make this finding despite the positives associated with the proposal, which includes the provision of an added level of convenience to some members of the surrounding community, and a limited extent of additional employment. In a net community benefit analysis, I give greater weight to the increased sleep disturbance that the evidence shows will be caused to a number of dwellings, over these positives associated with the proposal.
I am therefore not satisfied that the proposed 24 hour operation of the service station and convenience shop will produce acceptable amenity outcomes for the adjoining residential properties, by way of noise, and therefore a net community benefit. As a result I do not need to proceed to consider the range of other possible amenity impacts.

For the forgoing reasons, the decision of the Responsible Authority will be affirmed.

[1] I have considered all submissions presented by the parties although I do not recite all of the contents in these reasons.

[2] Mr Sayer's submission describes 516 Pascoe Vale Road as containing two dwellings.

[3] At paragraphs 31-33 and 40-41 inclusive.

7 Eleven Stores Pty Ltd v Moreland CC [2013] VCAT 310 (18 March 2013)

McDonald's Australia v Moreland CC [2012] VCAT 1529.

7 Eleven Stores Pty Ltd v Moreland CC [2013] VCAT 310

At a glance

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Decision date

Source

Judgment (11 paragraphs)

Parties

Cases Cited (2)

7 Eleven Stores Pty Ltd v Moreland CC [2013] VCAT 310 (18 March 2013)