Batsis Nominees Pty Ltd v Hobsons Bay CC [2009] VCAT 928

1. Pursuant to section 127 of the Victorian Civil and Administrative Tribunal Act 1998 the application is amended by changing the name of the applicant to Batsis Nominees Pty Ltd.
2. Pursuant to section 127 and clause 64 of Schedule 1 of the Victorian Civil & Administrative Tribunal Act 1998 the permit application is amended by changing the name of the permit applicant to Batsis Nominees Pty Ltd.
3. The decision of the Responsible Authority is affirmed. In permit application PA0816620 no permit is granted.

Mr Selwyn Custance, Town Planner of S Custance & Associates Town Planning Consultants. He called written and oral evidence from Mr Jonnie Missos, Traffic Engineer.

Mrs Marion Gaetani, Mrs Zorica Jovanovic, Ms Annette Boetzel.

Section 77 Planning and Environment Act 1987.

Cl. 32.01-7 & 52.05-9 (signs other than a direction sign).

Cl. 52.29 (create access to a road in a Road Zone Category 1).

Clauses 11, 12, 14.01, 15.05, 15.12, 17, 18.02, 18.03, 19.03, 21 (various), 22.04, 22.07, 22.11, 52.05, 52.06, 52.07, 52.13, 52.29, 52.34 and 65.

I inspected the site and locality a few days after the hearing.

The review site is located on the southern side of Queen Street and is vacant save for two large trees. The site comprises four lots, has an 'L' shape, an area of 1,713m2, a frontage of 51 metres to Queen Street, a western boundary along Mildenhall Court of around 32 metres and an eastern boundary of 36 metres. The Queen Street carriageway is separated from the review site by a 15.17 metre wide road reservation that is vacant but will in time be used for the duplication of Queen Street.

The land to the south is occupied by dwellings that face Mildenhall Court to the west and Pearce Court to the east. These two streets do not link with Queen Street and terminate as court bowls. To the west is a sealed car park associated with an Isis Primary Care Centre located further west. To the east is a vacant parcel of land that has a current permit for four double storey dwellings accessed off Pearce Court. Land on the opposite side of Queen Street is primarily used for residential purposes, although two properties are used for medical centres.

Non residential uses occur to the east on the corner of Victoria and Queen Streets where there is Shell Petrol Filling Station on the south west corner and medical centres on the north west and north east corners. The Altona Central Square Shopping Centre is located about 700 metres to the west on the south west corner of Queen Street and Central Avenue.

Between these two major intersections there are three community/health care related uses on the southern side of Queen Street. In addition to the previously mentioned Isis Primary Care Centre, there is child care centre and a residential house for the intellectually disabled.

1. All parties made reference to a previous application and VCAT decision for a car wash on the site[1] which was determined by Member Hewet after a 2 day hearing in August 2004. He gave an oral decision at the end of the hearing to affirm Council's decision to refuse the application.
2. Although the review site now includes an additional lot and the car wash layout has been changed and enlarged, it still remains a carwash with the same site context as the one considered by Member Hewet in 2004. The Council and neighbours consider that the latest proposal, despite some differences in land area and site layout, is a rerun of the previous application. In response the permit applicant submitted that the newest proposal is sufficiently different from the previous proposal that it is not a repeat. I disagree.

1. The Tribunal has on many occasions commented about repeat appeals and Mr Testro made reference to commentary in Planning and Environment - Victoria and Planning Appeal Casenotes. I do not intend to recite all the relevant cases but I consider that the greatest assistance in coming to a view about repeat appeals is to examine the four factors or 'tests' set out in K & B Reichert v City of Banyule and ors (1996/38819) which have been referenced in later Tribunal decisions. The factors which might justify a departure from an earlier determination are:
   • Significant changes to the application itself;
   • Changes in the circumstances of the land and its surrounds;
   • Changes in planning policy; and/or
   • Changes in the interpretation of the facts or law relevant to the Tribunal's consideration.
2. While these factors are a good starting point I think they have two flaws. The first is that factors 2, 3 and 4 do not attempt to qualify the changes as being material or significant. Clearly some changes to circumstances, policy, fact or law may not be material or significant to the application under consideration. For example, in this case the traffic volumes along Queen Street have increased from 16,000 to 17,000 vehicles per day over a 4-5 year period. It is a change but it is broadly in line with the percentage increase in traffic volumes across Melbourne and at less than 2% per annum is not a significant or material change.
3. The second flaw is that there is no reference to a consideration of the primary reasons for refusing the previous application. For example, if the primary reason for refusal was the inappropriate use of the land, then a new application which has, for example, a different site layout but which includes the same land use previously rejected, is not a significant change to the application.
4. I therefore consider that these factors need to be revised as follows:
   1. Significant or material changes to the application itself which address the primary reasons for the previous proposal being refused;
   2. Significant or material changes in the circumstances of the land or its surrounds;
   3. Significant or material changes in planning controls and policy; and/or
   4. Significant or material changes in the interpretation of the facts or law relevant to the Tribunal's consideration.
5. In reading Mr Hewet's reasons it is evident that the primary reason the previous application failed was because the use of the land for a carwash was considered inappropriate in this location. Member Hewet commented that:
   1. The proposed use is prohibited in a Residential 1 zone unless it is a use on a site which has a frontage or access to a road in a road zone, a feature which this site enjoys. However the fact that the site has a frontage to a road in a Road zone has the effect of allowing a consideration of the appropriateness of a particular site for the proposed use, it does not provide an indication that any particular site in a Residential 1 zone with a frontage to a road in a road zone is a suitable site for a carwash. The purpose of the condition attached to the use in the table to clause 32.01 is to eliminate lower order residential streets from consideration for the location of a carwash and to provide a basis for the identification of sites which may be subject to full assessment through the planning permit process. The overriding issue in undertaking a full assessment will always come back to an assessment of the proposal's effect on the residential character and amenity.
   2. There is I think good reason for a carwash to be a prohibited use in a Residential 1 zone. The combination of the nature of the use and the fact that by and large activities on the site are conducted in the open (albeit under a roof and in separated bays and behind acoustic fences) does give rise to the potential for off site amenity impacts including noise, traffic movements, hours of operation, spray, odours and lighting. I also think that the built form of these uses is such that it does not fit comfortably in a residential context. It is important therefore that consideration is given to the appropriateness of the site for the use and I reiterate that a frontage to a road in a Road zone does not of itself qualify a site as a suitable site for this use, it merely provides an opportunity to assess the suitability of the site. Clearly there are sites which are zoned Residential and which have access to a road in a Road zone which will be suitable locations for a carwash but I think that those sites will be suitable because of a combination of factors which do not exist here. In particular, I do not think that the traffic volumes along Queen Street are such that the residential amenity of sites abutting this site has been diminished to such a point as to make this site unsuited to residential development. The existence of residential development along both sides of Queen Street but particularly the north side provides a strong indication of this. There are also many examples of residential development in metropolitan Melbourne located on roads carrying much higher volumes than the 15000 (sic) vehicles per day using Queen Street. I acknowledge that volumes along Queen Street are likely to increase as further residential development to the west proceeds however I think it will be many years before these volumes reach a point whereby the suitability of land along Queen Street for residential use is significantly compromised.
6. Put simply, it was not the layout that concerned Member Hewet but rather the concept of using this land for a carwash. This latest application again seeks approval for a use that was clearly rejected in 2004. In the absence of any significant or material change to the other factors referred to in paragraph 6 then there is no justification in me now approving a carwash on this site. I am not convinced that a larger site area (but containing a larger carwash facility) and an increase in daily traffic volumes from 16,000 to 17,000 along Queen Street represent a significant or material change in the circumstances of the land or its surrounds. Mr Custance did suggest that one change in circumstances since 2004 is that there are now fewer alternative carwash sites available in this part of Melbourne. That may or may not be the case but I am required to consider this particular site and this particular application.
7. I accept Mr Custance's submission that more onerous water restrictions since 2004 have made car wash facilities far more popular. For a growing group of motorists they are no longer an optional extra or luxury but instead are becoming a regular and necessary part of owning a motor vehicle. In that sense I do not dispute that there is a need for such facilities but that misses the point that this particular site is an inappropriate location given its residential interface. I also note that environmental and water saving benefits were discussed by Member Hewet in 2004 and I am not convinced that those benefits are so critical or have reached a point where that they outweigh the negatives of establishing a carwash on this site.
8. Residents raised concerns about unacceptable behaviour from car wash patrons. I discussed this matter in Bernado[2] and I take a similar view in this case. I accept that this car wash is not intended to open late at night but one of the biggest issues with carwashes is their propensity to become social gathering points, with loud music, loud voices and other potentially disruptive behaviour. Perhaps it is the fun of playing around with water, but manual car washes seem to encourage more relaxed and noisy social behaviour and it is this aspect of car washes which potentially creates the most significant off site amenity impacts. Although an acoustic fence and 3 metre wide landscaping buffer would help screen the carwash from the nearest dwellings, approval would allow a potential point of conflict to arise. As noted in Macarthur Wind Farm Pty Ltd[3]:

Planning literature is full of examples where conflict between incompatible uses leads to ongoing complaints and a souring of neighbourly relations. Often the uses established prior to the introduction of planning controls or where controls were inadequate to prevent incompatible uses establishing. One of the best examples in Victoria is around Essendon Airport where encroaching residential development, noisier and bigger aircraft, higher environmental standards and different community expectations have all seriously impacted on the operational capability of what was once one of the major airports in Australia. Clause 11 of the State Planning Policy Framework sets out the goals and principles for planning in Victoria. Among a large array of specified matters, planning is to prevent environmental problems created by siting incompatible land uses close together and by resolving land use conflicts. Deliberately siting two accommodation units in a location that will be adversely affected by wind turbine noise would result in the sort of outcome that these principles are seeking to avoid.

1. In this case deliberately siting a carwash in a location that will adversely affect residential amenity would also result in the sort of outcome these principles are seeking to avoid. Non residential uses have established along Queen Street but child care centres and small scale health orientated facilities have a completely different character and impact than the proposed car wash. Although Queen Street is a reasonably busy road with daily traffic volumes of around 17,000 vehicles, it does not result in such poor amenity that new dwellings are not an acceptable land use. Dwellings already front Queen Street and new housing, including more intensive medium density developments have been constructed or, in the case of land to the east, have been approved.
2. Residents also raised concerns about emissions, water spray and the potential for water borne diseases to spread from the car wash to nearby residences. As explained at the hearing, planning approvals are not expected to address every single aspect of operating a business or industry and there are other Government regulations to control health and emission issues.
3. Although residents remain concerned about traffic, I agree with Member Hewet that traffic is not a key issue on this site. There are however problems with the site layout including inadequate space for landscaping along the western and southern boundaries, and impractical queuing arrangements because of the orientation of the eastern washing bays with insufficient separation between vehicles queuing to use the automatic bay and vehicles turning into/waiting to use manual bays. While these problems could be largely overcome with plan amendments, any such shortcomings in the site layout are not central to my decision to refuse this application.

1. Having regard to the above, I will order that no permit issue.

[1] Good Guys Contractors Pty Ltd v Hobsons Bay CC [2004] VCAT 1630

[2] Bernardo v Monash CC [2008] VCAT 406

[3] Macarthur Wind Farm Pty Ltd v Moyne SC [2006] VCAT 1423