Athedim (Vic) Pty Ltd v Moonee Valley CC (No 2) [2010] VCAT 1091

1. Mr Mark Sheldrick is joined as a party pursuant to section 60 of the Victorian Civil & Administrative Tribunal Act 1998.
2. The request to amend permit MV/18153/2006 is allowed in part. The responsible authority is directed to amend permit MV/18153/2006 by:
   • (a) replacing conditions 3 and 4 and with the following condition:

Food and drink from the café ancillary to indoor recreation centre (children's play centre) must not be sold to persons other than to a patron, a visitor or a staff member of the indoor recreation centre (children's play centre) and childcare centre or to a resident or visitor of a dwelling on the subject land.

(b) amending endorsed under the permit showing modifications generally in accordance with the modifications specified on plans by Bagnato Marian Guardino Architects (Drawing TP03 Revision G )

1. In accordance with section 92 of the Planning and Environment Act 1987 the responsible authority is directed to give notice of this amendment of the permit.

Application to amend a permit for a Recreation Centre (Children's Play Centre), Child Care Centre and 12 Dwellings in a four storey building with basement car parking

Request under section 87A of the Planning and Environment Act 1987 for amendment of a permit

Design and Development Overlay DDO3 Nicolaou v Moonee Valley CC [2006] VCAT 1632 Nicolaou v Moonee Valley CC [2006] VCAT 1632

The land has an irregular configuration with a frontage to Mount Alexander Road of 44 metres and an area of 1,788 square metres.

[2006] VCAT 1632;

Athedim (Vic) Pty Ltd v Moonee Valley CC [2007] VCAT 1915

1. In 2007 permit MV/18153/2006 was issued for a Recreation Centre (Children's Play Centre), Child Care Centre and 12 Dwellings in a four storey building with basement car parking[1] at 767-773 Mt Alexander Road, Moonee Ponds. The permit was issued at the direction of the Tribunal and construction has commenced.
2. The applicant seeks to amend the permit by:
   1. amending endorsed plans to add an additional storey to the building (with consequential changes to other parts of the building) for two, three bedroom dwellings, and by;
   2. deleting conditions 3 & 4 which seek to limit the sale of food and drink from the café ancillary to the children's play centre, the existing conditions provide:
      1. The sale of food and drink on the premises must be predominantly for the users of the Indoor Recreation Centre (Children's Play Centre).
      2. The sale of food and drink on the premises must be predominantly for the consumption on the site.
3. The council opposes the proposed amendments on grounds set out in Attachment A.
4. The subject land is located on the north west corner of Mount Alexander Road and Grandison Street in Moonee Ponds. The land is approximately 450 metres to the north of the Moonee Ponds principal activity centre and a similar distance south of the smaller Essendon activity centre focussed the Essendon Railway Station. Grandison Street is a local, residential.
5. Surrounding the land there is:
   • a petrol filling station with a car wash to the north;
   • a vacant shop on the south west corner of the Mount Alexander Road and Grandison Street, and;
   • dwellings to the south west in Grandison Street.
6. The parties and the witnesses at the hearing of the application for review relied on both written and oral submissions and a number of photographs, plans and other documents were tendered to the Tribunal.

1. The amendments to the permit sought in this application raised entirely discrete issues which I deal with in turn.

1. The Planning Scheme has an extensive array of policies in respect of urban consolidation, residential amenity and neighbourhood character, all of which are relevant to this current application. Mr Shepherd observed that the DDO applying to the land should be regarded as being the tool in the Planning Scheme which is used to reconcile these more general policies as they relate to the particular precincts affected by the DDO.
2. Member Hewet in Nicolaou[2] made an observation consistent with Mr Shepherd's proposition ie:
   1. This is not to say that any development which complies with the DDO's standards must be granted a permit. Clause 19.03-2 of the SPPF requires that "...development should also achieve architectural and urban design outcomes that contribute positively to local urban character and enhance the public realm while minimising detrimental impact on neighbouring properties....", and these are clearly relevant matters which must be considered and must form part of the decision making process. The salient point however, is that this site is located within an area which the Council has specifically designated for the achievement of a built form which is very different to that which contributes to the existing character of this area.

3. Nicolaou is the first of two decisions of the Tribunal dealing with the current redevelopment of the subject land. In Athedim[3], the second such decision, Member Potts and myself made a similar observation:
   1. Council took the position that the built form issue had been resolved by Mr Hewet in his decision. The current proposal in built form terms is very similar to that considered by Mr Hewet. Mr Hewet decided that the design and development overlay defined the way in which the planning policy framework, as it relates to built form, should be considered. Mr Hewet decided that when assessed on this basis, the proposed building satisfactorily responds to the planning policy framework.
   2. Respondent objectors continued to oppose the proposed building on the basis of its scale and built form. We accept Mr Hewet's assessment. We adopt it and note that the positive assessment of council's consultant urban designer supports this conclusion.

4. It is rarely a case that the preferred maximum height of buildings within a particular precinct can be determined solely on the basis of objective considerations. In many cases the planning authority will have to form its own opinion as to the preferred outcome guided by objective considerations. In this case the DDO is an expression of the planning authorities judgement. However, because the process is not purely objective, it is often possible to form an opinion based on general amenity and urban design considerations that a higher building on a particular site would also be acceptable. Mr Shepherd and Mr Kelderman have formed just such an opinion in this case.
5. The Tribunal must give effect to the DDO. Notwithstanding the fact that the preferred height within the subject DDO is a discretionary limit, the Tribunal must avoid decisions which in effect render the specification of a preferred height meaningless. I agree with Mr Holdsworth, there needs to be special circumstances which warrant a departure from the preferred maximum specified by the DDO.
6. Special consideration should not be too narrowly construed. They could be:
   • characteristics of the proposal, for example, its social utility or the atypical excellence of its contribution to architecture and urban design, or
   • characteristics of the site, its size, its location, the sensitivity of its interfaces etc.

On the other hand special consideration should not be urban design and amenity considerations which would be broadly applicable on a general basis throughout the precinct.

1. In this case the subject land is a large site but I do not think that the submissions and evidence have demonstrated special considerations which identify it as being a suitable candidate site for a departure from the preferred height limit. Indeed, the land adjoins another large site, which is potentially a development site, the arguments raised in this case will be equally relevant to that land, or any other consolidated site within the precinct.
2. The DDO expresses the height limit as being four storeys (12-13 metres). Mr Taylor submitted that the extended building proposed would be less than one complete storey higher than the 13 metre maximum. This is a relevant consideration, but in my opinion the height of the building measured in storeys is the more relevant consideration in this particular case.
3. It follows from the above conclusions that I do not propose to allow an additional floor on the permitted building. At ground floor level there are uncontroversial changes to the plans, unrelated to the proposed additional floor, which I will allow.

1. The original proposal before Mr Hewet in Nicolaou included a large shop, and a licensed restaurant in addition to the Child Play Centre and Child Minding Centre as part of the mix of uses in the proposed development. Mr Hewet concluded that this mix of commercial activities was too intensive on a site within a Residential Zone when the site was so proximate to local Activity Centres. The revised proposal before Member Potts and myself in Athedim Pty Ltd deleted the shop, and the only food and drink premises was the café ancillary to the Child Play Centre. Conditions 3 and 4 are essentially part of this process of confining the intensity of commercial activity on the land.
2. Mr Taylor submitted that his client does not intend to operate a café or takeaway food premises independent of the Child Play Centre. Rather the applicant wants to be sure that the ancillary café can be used to sell takeaway food and drink, such as takeaway coffee to patrons of and visitors to the Child Play Centre, the Child Minding Centre and residents of the building.
3. I think that Conditions 3 and 4 as they exist could be argued to accommodate the applicant's intentions. The conditions however are in my opinion unclear and were not properly debated at the hearing in Athedim.
4. The applicant's intentions, as described to the Tribunal, are not unreasonable. I propose to amend the permit conditions to more clearly allow for this possibility. I note that within the permit there is no primary commission for a café, other than a café which is ancillary to the Child Play Centre, and this is reflected in the floor plan described within the endorsed plans. The conditions of permit applicable to the Child Play Centre apply to the ancillary café.
5. However, I want to make it clear that I do not think the decision of the Tribunal in Nicolaou, or my decision here, should be taken to indicate that a small daytime café primarily directed to servicing the needs of the local community would be an inappropriate use of this land. Such cafés are found regularly within residential areas within the broader metropolitan environment. If such a café was to be contemplated on this land it would need to be the subject of a separate permit application.

1. I do not propose to allow an additional floor on the permitted building, I will allow uncontroversial changes to the plans and replace condition 3 and condition 4 with a condition which will accommodate the applicants intentions within the scope of the use permission already granted.

1. The proposed amendment to the plans is not consistent with the Planning Scheme and its related documentation (including the various provisions in documents referred to in the Responsible Authority's written submissions in relation to Review No. P1063/2007 (to the extent that they relate to the additional floor residential development) supplemented by Clause 22.13 "Residential Development of Four or More Storeys".
2. The amendments sought to be made to the plans to the extent of the proposed new upper level are inappropriate and ought not to be made.
3. The Responsible Authority joins issue with the matters alleged as grounds in the application.

1. The matters relied in Item 8 of Part 9 of the section 87A application reflect an attack upon the validity and appropriateness of Conditions 3 and 4 and, thus, the Tribunal's decision in proceedings P1063/2007, something which was not appealed to the Supreme Court under section 148 Victorian Civil and Administrative Tribunal Act 1998 and, thus, the applicant ought not to be allowed to use the 87A process as a de facto appeal from the Tribunal's decision.
2. The conditions are valid and appropriate and ought to remain.
3. The conditions are the same as the draft conditions circulated by the rap before the hearing of VCAT proceedings P1063/2007. They were not opposed by the applicant at that hearing. The applicant should not be allowed to resile from representations made as part of those proceedings.
4. Having regard to the history of the applicant's attempt to conduct food and drink-related premises in the building (including by the application which was the subject of the prior Review Proceedings No. P312/2006) and having regard to representations made on behalf of the applicant in proceedings no. P1063/2007 that the food and drink premises are to be ancillary to the Children's Play Centre, it is appropriate that the use of the café be regulated by conditions so as to ensure that its operation is appropriately linked to the other uses in the premises.
5. The conditions are not impracticable or unenforceable.
6. The Responsible Authority joins issue with the matters alleged as grounds in the application.

[1] Including a reduction in the required car parking and access to a road in a Road Zone.

[2] Nicolaou v Moonee Valley CC [2006] VCAT 1632

[3] Athedim (Vic) Pty Ltd v Moonee Valley CC [2007] VCAT 1915.