This application for review is refused, the decision of the Responsible Authority to refuse to grant a permit is affirmed and no permit is granted.

_________________

RUSSELL BYARD

SENIOR MEMBER

Mr. Peter Soding, consultant town planner of Tixxis Pty Ltd appeared for the responsible authority. He presented written and oral submissions.

Mr. Stephen Jones, barrister, appeared on the instructions of his client for the applicant company Azzure Sapphire Pty Ltd. He presented written and oral submissions and called three expert witnesses. They were Mr. Robert S. Burton, acoustic consultant; David Crowden, town planner; and Michael G. Durkin, traffic engineer. Each of these witnesses gave oral evidence including the adoption of a written report and was cross-examined.

Mr. Ian Aspinall of the Roads Corporation (known as VicRoads) appeared for that authority and made oral submissions.

Mr. Eric Morton, respondent objector, appeared in person for himself and for Joan Morton. He made oral submissions.

Mr. Mark Moloney, respondent objector, appeared in person and made oral submissions.

Mr. Steven Read, respondent objector, appeared in person for himself and for the Chelsea Yacht Inc.

Mr. Brendon Lawby, respondent objector, appeared in person for himself and also for Julie M. Zun. He made written and oral submissions.

Two other respondent objectors appeared but, when it came their turn, found that they had nothing further to add to the submissions and evidence already before the Tribunal. They were Ms. Mo Lim and Ms. Sandra Scammell.

Mr. Chris Richards, respondent objector, appeared in person but departed prior to being called upon to present his case.

Various plans, photographs and other documents were tendered in evidence. The evidence and submissions in documentary form have been retained on the file of the Tribunal.

Application under s.77 of the Planning and Environment Act 1987 (PE Act) for review of a decision of the Responsible Authority to refuse to grant a permit.

Part Residential 1 Zone and part Business 1 Zone and subject to a Design and Development Overlay Schedules 1 and 7 under the Kingston Planning Scheme.

The proposal would detrimentally affect the amenity of the neighbourhood.

The traffic generated by the proposal would aggravate an existing traffic problem in the locality.

The proposal would result in traffic congestion in the nearby streets.

The proposal does not satisfy the requirements under Clause 52.13 (Car Wash) of the Kingston Planning Scheme, namely in relation to the specifications for crossovers, queuing lanes, amenity requirements and adjoining residential zones.

The proposal will not have a detrimental affect on the amenity of the neighbourhood.

The traffic generated by the proposal would not aggravate an existing traffic problem in the locality.

The proposal would not result in traffic congestion in the nearby streets.

The proposal does satisfy the requirements under Clause 52.13 (Car Wash) of the Kingston Planning Scheme, namely in relation to the specifications for crossovers, queuing lanes, amenity requirements and adjoining residential zones.

1 The applicant company seeks planning permission to establish a car wash facility on the site to include an automatic car wash, four hand wash bays and three vacuum bays where customers can use on-site equipment to vacuum out their cars. I will give a more detailed description of the site and the proposal shortly. The responsible authority determined to refuse to grant a permit on the grounds of detriment to the amenity of the neighbourhood, failure to satisfy requirements of cl.52.13 of the planning scheme in relation to car wash facilities, traffic problems and congestion[1].

2 The respondent objectors support the responsible authority in its refusal, largely on amenity grounds and concern about traffic problems.

3 Most of the two day hearing of this case proceeded on the basis of misinformation as to the extent of the site. During the final afternoon it was clarified that the site has a frontage of 58.5 metres to the west side of Nepean Highway and a depth of 21.33 metres and an area of 1237.66 square metres. The previous information indicated that the depth was 18.3 metres and the area 1070.55 square metres. Directions in these reasons are given on the basis that Nepean Highway in this locality runs north to south. That is not true. Its alignment runs to the west of north, but it is simpler and clearer to proceed on the basis of the direction I have assumed.

4 On the eastern side of the Nepean Highway there is a railway line. Between the Nepean Highway and the waters of Port Phillip and its foreshore, there is a relatively narrow strip of land. Most of the strip of land is in a Residential 1 zone. The strip includes the review site. The residential land is used generally for residential purposes.

5 The site occupies the whole western side frontage of Nepean Highway between Kelvin Grove to the north and Barnes Grove to the south. These two local streets run off from "T" intersections of Nepean Highway to the west toward the bay. Barnes Grove is connected to the foreshore by a walkway. Kelvin Grove has an extension, trafficable by cars, leading to the Chelsea Yacht Club down by the foreshore where there is parking accommodation for approximately 50 to 60 cars.

6 The site is much longer, north to south, than it is deep, east to west. To the west of the site, and adjoining its western boundary, there are two houses, one facing Kelvin Grove, and the other Barnes Grove. The one facing Barnes Grove is No. 1A and belongs to Mr. Laube. Both these houses are in the residential 1 zone as are residential properties further to the west, south, north-west and so on. Both of the immediately adjoining houses are single storey dwellings.

7 The site is only 21.33 metres deep. This means that there is limited opportunity to place potentially troublesome activities, in particular, potentially noisy activities, at suitable distances from these sensitive residential uses.

8 There are splay corners of 3.05 metres on each of the front corners.

9 The northern portion of the site, amounted to ¼ or ⅓ of it, is in a Business 1 zone. The balance, to the south of that portion, is in the Residential 1 zone. The Business 1 zone extends across Kelvin Grove north along the western side of Nepean Highway, but only for three or four properties. The first one displays cars and the others are shop style buildings. There was reference to this tiny Business 1 zone as "an activity centre". It is not an activity centre recognised in the planning scheme or in the metropolitan planning document known as Melbourne 2030. It is far too small to warrant such a description. It is just a very small collection of several shops most of which no longer serve local shopping needs.

10 The review site has, in the past, been a service station. However, that use ceased five or more years ago. Any existing use rights in relation to that use have been lost. The site has been cleared and is presently vacant behind cyclone wire fencing. There are angled in and out crossings from the Nepean Highway frontage dating back to the days when it was used as a petrol station. There is also a surviving crossing from Barnes Grove.

11 The original proposal was to establish a car wash facility to include an automatic car wash, four car wash bays, three vacuum bays, a staff carpark and a building to contain a store, plant, office and toilet. The proposal included landscaping around the boundaries and at the corners and an outdoor table and chair seating area close to the office. A 3 metre high acoustic barrier fence is to be erected along the entire western boundary to the adjoining residential properties behind a 1 metre wide landscape planting strip. It was originally intended to utilise the crossings to and from Nepean Highway over the Nepean Highway frontage. The proposal always included a 6 metre high internally illuminated business sign adjacent to the Nepean Highway frontage. There has been no controversy about this sign, in the event of permission being granted for the car wash facility.

12 The Roads Corporation (known as VicRoads) is a referral authority in relation to the granting of permission for creating or altering access to a Road Zone Category 1. Nepean Highway is a Road Zone Category 1. As I have said, there are existing crossings, but the Roads Corporation seeks to minimise such crossings to such roads, and to eliminate them where possible. Its reaction to this proposal is that the Nepean Highway crossings should be eliminated and that access to the site should be in via Barnes Grove and out via Kelvin Grove.

13 Such an arrangement is more popular with the Roads Corporation than it is with some of the objectors who are nearby residents. However, on becoming aware of the attitude of the Roads Corporation the applicant prepared new plans eliminating the Nepean Highway crossings and relying solely on the Barnes Grove and Kelvin Grove crossings. This was done before notice was given of the application so that objectors who inspected the application would have seen the modified plans. The responsible authority accepted this second version as an amendment to the application. The case proceeded before me on that basis.

14 The proposed layout is that vehicles would come into the site from Barnes Grove over the existing 9.5 metre wide crossing or some variation or possible partial relocation thereof. A very real problem about the case, and the hearing of this case, has been the extent to which further suggested or possible modifications kept coming forward shortly prior to and throughout the hearing. This is an unsatisfactory, confusing and unfair way to proceed. The Tribunal has instituted practice directions in relation to modified plans to avoid such problems. I am not concerned about the changes accepted by the responsible authority at an early stage, which the objectors were aware of from the outset. It is the late variations and confusing changes including "designing on the run" in the witness box and from the bar table that are a problem. Mr. Soding and the objectors, particularly Mr. Laube, complained about this as being unfair. Mr. Laube said that he had devoted a great deal of time over the past three months to prepare his case on a certain basis only to find it, not merely changed, but continuing to change as the hearing went along. Perhaps his complaints were strongest upon the production of a proposed landscaping plan that had not previously been seen. It was objected to on the basis that I should not look at it. I did look at it to see what it portrayed, but I did not accept it as an amendment to the application.

15 The changing width and location of the crossing from Barnes Grove is only one of many examples of this sort of proposed change. It may have been hoped that I would pick and choose bits and pieces from here and there of the proposed variations to see if I could design an acceptable proposal. That is not my job, and certainly not one I would wish to undertake. There are too many variable inter-relationships for me to wish to step outside my proper role in such a way. I think that would be unfair to me, as well as to the responsible authority and the objectors.

16 After coming in from Barnes Avenue a motorist would have a choice of turning left into a curved driveway leading to the automatic car wash facility 9.68 metres long parallel to the common boundary to Mr. Laube's property and set back from it by 1 metre. Provision is made for a 1 metre wide landscaping setback right along that boundary, on the review site side of the 3 metre high acoustic barrier on the fence line. After being processed through the automatic car wash building a car would then exit along a driveway to the north and thence either on to Kelvin Grove or around the end of the hand car wash bays to the vacuum bays.

17 Instead of making an initial turn to the left leading to the automatic bay a car could turn to the right around the eastern side of the plant building and outdoor area along a driveway leading to the four angled hand car wash bays. When washed, cars would exit these bays on to the same exit driveway leading to the north to proceed, either to Kelvin Grove, or to the vacuum bays.

18 There would be queuing room for two or three cars leading either to the automatic car wash or to the entry end of the hand wash bays. Although a second car might prop behind one in a hand wash car bay there might be a tendency, in the absence of direction from an on-site manager, for the queuing to start further back behind the first bay so as to afford the first waiting car the option of entering any of the four hand car wash bays, whichever first became vacant. In the course of the hearing various suggested devices and arrangements were put forward for signalling when particular car wash bays, particularly the third and fourth, had become vacant. These were "on the run" suggestions which were not part of the application and which the other parties had no opportunity to consider.

19 The problem in relation to seeing into the angled hand car wash bays was aggravated by a suggestion or requirement of Mr. Burton, the acoustic consultant called on behalf of the applicant company, where he wanted the side walls between the respective hand car wash bays to be extended with "wing walls" which would be extensions in the south easterly direction to the planned walls between the bays. This was to provide additional acoustic screening to protect nearby residential properties to the south, particularly the house on the south-west corner of the intersection of Barnes Grove with Nepean Highway.

20 A single staff carpark was planned for the north-west corner of the site to accommodate a member of staff to be on site. The original proposal was that the facility should operate 24 hours per day seven days per week and that a staff member should be in attendance at all times. Mr. Burton, whose report in relation to acoustic questions was circulated shortly prior to the hearing, raised problems about that arrangement. The anticipated noise problems, even with the battery of devices and arrangements he proposed, could not achieve a satisfactory noise environment during the night time hours. He proposed that operation should cease at 10pm and not be allowed to resume until 6am the following day. Although it appeared from some application documents that it was intended to have someone on site at all times, the hearing proceeded on the basis that such attendance would not, or may not, be continuous. Continuous attendance is expensive if it is to cover all times, including quiet times. Whilst it should not be assumed that this operator would fail to comply with any conditions, both Mr. Burton and I have some experience of a case where an operator failed to provide attendance on site and supposed arrangements for telephone connections and attendants could not be made to work.

21 Another precaution proposed by Mr. Burton was to install automatic doors to provide acoustic screening at the entry and exit points to the automatic car wash. This aspect had not been thought through in that there is a potential conflict point for cars emerging from hand wash bay No. 1 into the same space on the driveway where cars emerging from the automatic wash bay must also pass. Vehicles would be moving relatively slowly, so that one might be able to stop to make way for the other. The ordinary traffic rule is to give way on the right. That would mean that the one from the automatic car wash would give way to the one from the hand car wash. However, with automatic closing doors there would be a danger of the door coming down on the automatic car wash car whilst it stopped, half way out of the wash bay, to give way to the other vehicles. Various electronic devices, possibly in association with the convex mirror were suggested, off the cuff, in relation to this potential problem.

22 Mr. Burton, in his report and in his evidence, suggested that the 3 metre boundary acoustic barrier might be less intrusive, visually and in other respects, if the top metre or so was to be comprised of a transparent barrier when complying with the necessary acoustic specifications. He favoured a brick or masonry fence up to 2 metres with the transparent capping on top of that.

23 I certainly agree that a visual barrier like a wooden fence or masonry wall, or some combination of the two, extending up to a height of 3 metres is out of keeping with the residential nature of the adjoining properties and the area. The 3 metre barrier, with top metre being transparent, is less intrusive, but is by no means the same as a standard 1.8 metre paling fence. Mr. Laube, for his part, said he did not want a masonry fence on his boundary and complained that the adverse affect on his east facing windows and rear secluded open space area. Concern about his windows was dismissed on the basis that they are "highlight" windows.

24 A suggestion was made, as I recall it after Mr. Burton had given his evidence, that the top transparent metre, if that idea was adopted, could be angled at perhaps 45 degrees from the vertical towards the east or review site side.

25 A particular problem, recognised by Mr. Burton, is the noise nuisances that might be created by customers operating very loud CD players or radios or such devices whilst on the site. He has had experience of such problems, particularly in relation to vacuum bay areas, where customers have their doors open to gain access for vacuuming purposes. Such people can congregate and socialise with other customers whilst leaving doors and windows open and loud music playing. It was suggested that I might be reassured by the suggestion that such events would be rare. I am not comforted, as I see no basis for making that assumption. Although Mr. Burton would close down the site after 10pm, and people frequenting it after such hours might be rare if no facilities were operating, the weekends, including Sunday morning and Saturday afternoon and evenings would be a sensitive time when nearby residents could expect not to have to put up with loud music.

26 The counterpoint was to suggest that Mr. Burton's 3 metre acoustic barrier, although it might not be affective in relation to such music, would nevertheless substantially screen the adjoining properties from traffic noise on the Nepean Highway. It is a fair point to say that the Nepean Highway here is a busy road in relation to which there would be significant background traffic noise over extensive periods. Some benefit might be derived from the proposed acoustic barrier although such background traffic noise is part of the environment that residents must become adjusted to and for which they should have had an expectation upon moving to such a locality.

27 Concern about loud amplified music from the vacuum bay area led to some further, "on the run", speculative suggestions about relocating the vacuum bay facilities. One idea was to put them in the north-west corner in place of the staff carpark so as to, in effect, tuck them up against the acoustic barrier so that noise would be directed to the east, perhaps effectively away from the residences. Another "off the cuff" suggestion was to move them to the south along the Nepean Highway frontage to tuck them in, in a similar way, against the side wall of the fourth hand wash bay.

28 I do not think there is room in either location, and each suggestion would involve a substantial redesign in relation to which I have no confidence that a workable arrangement could be devised.

29 I am concerned about any alteration with acoustic ramifications made after Mr. Burton had given his evidence and departed.

30 On the last afternoon (Mr. Burton gave evidence on the first day) further variations were mooted in relation to the 1 metre wide landscaping strip along the western boundary. There are problems about this relating to cl.52.13 of the planning scheme which I will refer to later. It indicates that there should be a 3 metre landscape setback from such a boundary. The further variation first suggested was to increase the width of the landscape area from 1metre to 2. The next was to increase it from 2 to 3, although this would eliminate the opportunity for landscaping along the Nepean Highway frontage.

31 The implication of this jumbled and evolving series of speculative ideas would seem to be that the proposal has not really being thought through and planned properly with due attention to varying inter-related problems and potential problems of noise, accessibility, queuing and so on. In a case where some problem or potential problem can be overcome by imposing a condition requiring some adjustment to the plan or the proposal it is, in my opinion, sensible for the modification to be considered and, if appropriate, imposed by way of conditions. However, there has to be a sensible and practical limit on the scope of such exercises. In my opinion this proposal goes way beyond that limit. I consider that, in these circumstances, I should assess this proposal on the basis of the application as made varied only by the modifications accepted at an early stage as an amendment to the permit application by the responsible authority.

Are Defunct Service Station Sites Necessarily Suitable for Car Wash Facilities?

32 With the passing of time over the last decade or two it has been noticeable that some service stations in various locations have closed down. It is not unusual for there to be applications for such sites to be re-utilised as car wash facilities. There are some obvious similarities between these two uses. For one thing, they are main road and highway uses. They are uses that attract vehicles in off busy main roads, although in far greater volumes for service stations than for car washes. The typical stay in a service station (if it does not have its own car wash facilities and/or a hamburger outlet) is much shorter than for a car wash. Staff will be on hand at a service station when it is open. If located in a residential zone, and with common boundaries to residential properties, the potential for car washes to occasion noise and disturbance nuisances is considerably greater than for normal service stations. It is likely that old service station sites will have some marked operational advantages from the point of view of the operator of the car wash but more marked disadvantages for adjoining residents.

Car Wash Provision in the Planning Scheme: Clause 52.13

33 The purpose of the car wash provisions in clause 52.13 of the Planning Scheme is in the following terms:

To ensure that amenity, site layout and design are considered when land is to be used for a car wash, especially if it adjoins a residential zone.

To ensure that use of land for a wash does not impair traffic flow or road safety.

34 It can be noted that this purpose specifically envisages the possibility of a car wash on land adjoining a residential zone, but the specific mention of a residential zone is indicative of a special sensitivity of such zones in relation to potential adverse amenity and other affects of a car wash. Particular care is indicated in such locations.

35 Of course, some sites in or adjoining residential zone land may not have actual residential uses in close proximity. That is not true in relation to this proposal.

36 Clause 52.13 goes on to specify requirements to be met in the following terms:

Land may be used for a car wash only if the following requirements are met. A permit may be granted to vary the requirements, if the responsible authority considers a better design solution will result.

37 A provision in these terms does not imply a simple and familiar balancing of various favourable and unfavourable considerations. On the contrary, the first sentence provides that a car wash is prohibited if the requirements are not met. That prohibition however, is not total. It is modified by the second sentence. A permit can be granted if the responsible authority considers that a better design will result. If it is not considered that a better design will result, then the proposal is prohibited. It is not enough that the varied arrangement should give a result that the responsible authority considers to be as good as the result if the requirements were met. It must be "better".

38 This raises the question: better than what? It was put that varying the requirements can produce a result more convenient of the car wash operator and/or its customers. If "a better design solution" means no more than it is more convenient for such people if the requirements are ignored, that would be as much as to affectively destroy the intended effect of the requirements. Having regard to the particular concern expressed in the purpose, and elsewhere in the clause in relation to residential uses in residential zones, I think it must be a better design solution overall and including, in particular, better from the point of view of nearby residential land and nearby residents.

39 Clause 52.13 goes on to specify various requirements under five sub-headings.

40 The first sub-heading is "Crossovers". Although this proposal does not meet some of the crossover requirements, I believe it would be possible to modify the design so that the requirements were met.

41 The second sub-heading reads: "Kerb or barrier". The proposal meets the kerb or barrier requirements.

42 The third is "Queuing lane". Under this there are four paragraphs one of which is not relevant, two of which are met and one of which (the first) is difficult to interpret and apply. Having regard to my decision in other respects, I do not find it necessary to try and resolve the meaning of that paragraph. It would be helpful if it were better expressed.

43 The fourth heading is "Discharge of waste". It is satisfied.

44 The fifth heading is "Amenity requirements". Under that sub-heading the following appears:

The amenity of the locality must not be adversely affected by activity on the site, the appearance of any buildings, works or materials, emissions from the premises or in any other way.

No buildings or works may be of temporary or portable construction.

45 I do not see any particular problems about the appearance of buildings or works and no buildings or works are intended to be temporary or portable. However, the other "requirements" are specific and measurable whereas the amenity requirements involve, perhaps necessarily involve, estimates in the formation of judgements and opinions rather than the measurement or observation of specific and clearly ascertainable circumstances. These amenity requirements appear to relate to the results of the design, rather than features or aspects of the design solution itself. It is required that the locality must not be adversely affected by activity on the site or emissions from the premises or in any other way. I take emissions to include noise. I am not satisfied that these amenity requirements are met. Faced with the requirement that the land may be used for a car wash only if such requirements are met, and do not think I am in a position to grant the permission sought.

46 The final requirement is headed "Adjoining residential zone". Under this sub-heading the following appears:

If the site adjoins a residential zone, a landscape buffer strip at least 3 wide metres along the common boundary must be planted and maintained to the satisfaction of the responsible authority.

47 I take it that the expression "3 wide metres" should read "3 metres wide".

48 This proposal still has only the 1 metre wide landscape buffer strip on the common boundary. The requirement of 3 metres is not met. That means the proposal is prohibited unless I (standing in the shoes of the responsible authority in this respect) consider a better design solution will result. I consider that this is specific rather than merely general. In other words, I consider that I have to be satisfied that a better design solution will result from a 1 metre landscape buffer than for a 3 metre landscape buffer. I cannot be satisfied as to that.

49 In relation to the crossovers I was prepared to accept that, where the requirements are not met they can nevertheless readily be met by a simple amendment to the plan and without that having other ramifications. The suggestions for a 2 and then 3 metre wide buffer came near the end of the hearing, in the course of the last afternoon. I have already stated why I propose to assess the proposal on the basis of the application rather than these varying suggestions. I was satisfied that the crossovers would require only simple modifications. I do not consider the same to be true in relation to this adjoining residential zone requirement. It has other ramifications including, at least, the elimination of the possibility of landscaping along the Nepean Highway frontage.

50 If I was confident that a redesign would achieve a satisfactory proposal, I would say so. I should not be understood as saying that I have any such confidence. I will not attempt to rule on an application that is not before me, only that which is before me. I am not satisfied that I should grant a permit for this proposal. I am concerned about the height of the acoustic barrier, the potential for noise nuisances, particularly in relation loud music from the vacuum bays that cause nuisances in spite of the acoustic barriers and devices. Furthermore, I am not satisfied that the requirement of cl.52.13 in relation to amenity and adjoining residential zone are satisfied or that any relevant variation of requirements under cl.52.13 would result in a better design solution in the relevant sense. In those circumstances, it appears to me that cl.52.13 prohibits the proposal.

51 For these reasons the application for review is refused, the decision of the responsible authority to refuse to grant a permit is affirmed and no permit is granted.

_________________

RUSSELL BYARD

SENIOR MEMBER

[1] The text of the grounds of refusal as set out in the notice of refusal of the responsible authority dated 11 July 2006 are set out above.