Victorian Civil and Administrative Tribunal|2008-03-14

Bernardo v Monash CC [2008] VCAT 406 (14 March 2008)

Monash Planning Scheme; Application pursuant to Section 82 of the Planning and Environment Act 1987; Residential 1 Zone; Service station; 5 bay car wash; Noise; loss of amenity.

Bernardo v Monash CC [2008] VCAT 406

The decision of the Responsible Authority is varied.
In permit application 35186 a permit is granted and directed to be issued for the land at 204-208 Waverley Road, Mount Waverley in accordance with the endorsed plans and on the conditions set out in the Appendix. The permit allows:
- The use and development of a service station and car wash with ancillary offices including vacuuming facilities, one automatic and four manual car washing bays, car parking, fences and landscaping.

Ms Sally Moser, Town Planner of Moser Planning Services Pty Ltd.

Chris and Julia Mawson, Con and Jenny Bernado, Peter and Cseare Cardamone, Thomas and Jennifer Foo and John and Michelle Makeham are all residents living in Olive Grove to the south and south east of the review site. I note that Jenny Gu who previously had an interest in the adjoining 7/11 convenience store, and was an applicant for review, did not appear at the hearing. Despite the previous use of the site as a Mobil service station, nearby residents oppose the re-development of the site for another service station and a new 5-bay car wash. Their main concerns relate to the proposed 24 hour operation of the site, and in particular the potential for traffic pollution and noise impacts from the car wash.
The review site is now vacant following demolition of the previous Mobil service station although crossovers and some remnant perimeter landscaping remain. The site has an area of 2,103m2 and is located on the south western corner of Waverley Road and Olive Avenue, Mt Waverley. Although the area along Olive Avenue is residential, the site is positioned opposite a small shopping/business centre located on the north eastern corner of Waverley and Huntingdale Roads. The centre is zoned Business 1. A restaurant opposite the review site in the Residential 1 Zone effectively extends business land uses to the corner of Hillview Avenue which intersects Waverley Road directly opposite Olive Avenue. To the west of the review site a 7/11 convenience store and petrol sales is located on the south east corner of Waverley and Huntingdale Roads. To the south west of the site and sharing a small section of the southern boundary is a large reception centre at 436 Huntingdale Road.
The proposal involves the construction of new service station comprising 6 double sided fuel bowsers under a large overhead canopy, a two storey control building positioned near the western boundary but orientated to face eastwards to the fuel pumps, a five bay carwash along the southern boundary, parking bays at either end of the carwash structure - 2 at the east end and 1 at the west end - and a further 4 parking bays along the western boundary between the control building and the southern boundary. The upper floor of the control building is to be used as an office associated with the service station and car wash business. Landscaping is proposed along the southern and parts of other boundaries.

The site and surrounding land to the south, west and east are zoned Residential 1. Land on the north east corner of Waverley and Huntingdale Roads is zoned Business 1. Waverley Road is in a Road Zone Category 1. No overlays apply.[1] A number of state and local planning policies were highlighted for my consideration.[2]
I inspected the site and locality on the Friday before the hearing. Documents and photos submitted at the hearing have been retained on the Tribunal file.

I am satisfied that on balance the proposed use is supported by planning policy and by the specific controls in the Planning Scheme. Of most relevance to this proposal is local policy at Clause 22.09 and specific controls at Clauses 52.12 and 52.13. Clause 22.09 provides guidance in assessing Non - Residential Use and Development in Residential Areas. Three objectives focus on respecting and not adversely affecting residential amenity, and on providing adequate and well located car parking. Clause 22.09-4 includes performance and locational criteria for specified uses and development including car washes. In reviewing these 18 locational, urban design, car parking and landscaping criteria I am satisfied that the proposal achieves the relevant ones to a high degree:
- the site is located adjacent to and opposite an existing activity centre;
- it is on a higher order road;
- it provides appropriate buffers and interface to the nearest residential uses;
- it broadly maintains or exceeds street setbacks and one to two storey building heights;
- subject to the provision of an acoustic fence and restricted hours of operation, it minimises disruption and nuisance to adjacent residential properties; and
- the residential neighbourhood, and landscaping buffers are provided.
State wide controls at Clauses 52.12 and 52.13 include specific requirements that must be met for any service station or car wash proposal, although in both cases the requirements can be varied by permit if it is considered that a better design solution will result. Without commenting on each of these specifically, it seems to me that all can be achieved with the exception of the requirement for a 10 vehicle queuing lane before the petrol-selling point. Given the high level of compliance with the other requirements I am not convinced that a lack of queuing space is fatal to the application. I agree with Ms Moser that given the number of manual washing bays - four out of five - that it is not necessary to provide a long queuing aisle. I also agree that the 2 car spaces for the automatic bay, together with vacuuming and other car spaces, will provide adequate parking areas.

Although the protection of residential amenity is emphasised in policy, it must be acknowledged that until recently, the site has had a long history as a service station and that most, if not all residents, moved into the area when the site was used for that purpose. While I accept Mr Mawson's submission that the previous Mobil service station did not operate 24 hours a day, it nevertheless was a non residential use that had the potential to create noise and other adverse impacts on nearby residents. Over many years and in many cases, various divisions of the Tribunal have commented that residents living within, close to or abutting non-residential uses and zones cannot expect the same level of amenity as residents living in the middle of pristine residential areas. That does not mean that issues of amenity such as noise and overshadowing should be ignored, but rather that different standards are both acceptable and realistic in such interface locations. Residents at the northern end of Olive Avenue no doubt suffered some degree of lower amenity when the Mobil service station was operating and are inevitably more affected by noise along Waverley Road, including from businesses along Waverley Road, than residents further south.
Council's conditions included a requirement for an acoustic fence along the southern boundary. In reviewing the application plans and site context, I consider that the fence should be extended along part of the eastern boundary as well. This will minimise noise transmission from the bowser area and from the carwash bays. Mr Mawson suggested that if I were inclined to uphold Council's decision then I should place a 10pm closing time for both the service station and the car wash. I am not convinced that the 24 hour operation of the service station is a problem and indeed it is my experience that allowing convenience stores/service stations to open 24 hours a day is likely to reduce unruly and noisy behaviour by virtue of the fact that the site is supervised rather than left unopened and unattended, at which times the site can become an uncontrolled social gathering point.
On the other hand and perhaps paradoxically given my comments about closed service stations, one of the biggest issues with carwashes is their propensity to become social gathering points late at night, with loud music, loud voices and other potentially disruptive behaviour. The difference seems to be the nature of the activity - fuelling cars is very task orientated and something to be done as quickly as possible. Perhaps it is the fun of playing around with water, but manual car washes seem to encourage more relaxed and social behaviour and it is this aspect of car washes which potentially creates the most significant off site amenity impacts. I agree with residents that the car wash should not be allowed to operate late into the night. As discussed at the hearing I have decided to adopt a 10pm closing time - this is consistent with the time limit included on a carwash permit at Corio which is also in a Residential 1 Zone close to residential properties.[3] It is also consistent with the 10pm transition from evening to night time noise limits included in State Environment Protection Policy N-1.
Residents also raised a concern about toxic emissions from petrol and chemicals in such close proximity to a residential area. Apart from the fact that a service station existed on this site until very recently, other Government regulations control the operational aspects of the storage and handling of fuel and chemicals and I have no evidence to suggest that this service station will operate in a manner which will adversely impact on the health or safety of nearby residents.
I note that despite the permit applicant making a permit application for a 'service station with ancillary offices and car wash', Council has on the Notice of Decision to Grant a Permit described the use as 'petrol filling station'. This is incorrect as the Planning Scheme includes 'service station' as a section 2 use in the Residential 1 Zone. In my view Mr Chow in his submission correctly described the use as a service station whereas Ms Moser relied on Council documents that referred to petrol filling station. I agree with Mr Chow and have changed all references in the permit and conditions from petrol filling station to service station.
Despite the definition of Service Station including 'servicing or washing of motor vehicles', Mr Chow suggested that the permit description could be amended to include car wash as a specific use rather than as ancillary to the service station. I agree with his suggestion. Both uses are equally important, each could operate independently of the other and each is regulated by separate clauses in the planning scheme. Although I do not support the suggestion that the permit conditions be amended to require the car wash and service station to be operated as one business, there is merit in giving the two uses equal weight rather than referring to the car wash as ancillary to the service station. Who operates them or whether they are operated independently is not the key issue; instead it is that both are built and operated in accordance with the permit conditions.

The continued use of the site for a service station and a new 5 bay carwash is largely consistent with policy and specific controls for these two uses. Planning policy and controls direct that uses such as that proposed here are located on sites that are on main roads, on large sites and close to activity centres. Planning policy also seeks to protect residential amenity from non residential uses. I conclude that the site is appropriate for the proposal for the following reasons:
- Its locational context on a main road, next to and opposite other commercial facilities and with a limited residential interface to the south and east.
- It has a very long history as a service station and its use as a service station predates many of the residents who have moved into the area fully aware that the service station existed.
- It is a large site that can very comfortably accommodate the associated uses and it almost entirely satisfies the requirements contained in Clauses 52.12 and 52.13.
- Subject to the provision of acoustic fences and restricted operating hours of the car wash, it will not have an unreasonable impact on the amenity of the nearby residential neighbourhood.

Having regard to the above, I will vary Council's decision as set out above and in my order.

Before the development and use starts, three copies of amended plans drawn to scale and dimensioned, must be submitted to and approved by the Responsible Authority. When approved the plans will be endorsed and will then form part of the permit.

The plans must be generally in accordance with the plans submitted with the application, but modified to show:

(a) The provision of a properly designed acoustic fence within the garden buffer areas along the southern and eastern sides of the site. Provision of acoustic fences and landscaping in accordance with the requirements of Conditions 15 and 22.

(b) The generous planting of large shrubs and trees including canopy trees within the garden beds on the subject site.

Before the use and development permitted starts, areas set aside for parked vehicles and access lanes as shown on the endorsed plans must be :
- (a) constructed to the satisfaction of the Responsible Authority;
- (b) properly formed to such levels that they can be used in accordance with the plans;
- (c) surfaced with an all-weather sealcoat to the satisfaction of the Responsible Authority;
- (d) drained, maintained and not used for any other purpose to the satisfaction of the Responsible Authority;
- (e) line-marked to indicate each car space and all access lanes to the satisfaction of the Responsible Authority.

Parking areas and access lanes must be kept available for these purposes at all times.

In areas set aside for car parking, measures must be taken to the satisfaction of the Responsible Authority to prevent damage to fences or landscaped areas.
Outdoor lighting must be designed, baffled and located to the satisfaction of the Responsible Authority to prevent any adverse effect on adjoining land.
The development and use as shown on the endorsed plans must not be altered without the written consent of the Responsible Authority.
Once the development and use has started it must be continued and completed to the satisfaction of the Responsible Authority.
The amenity of the area must not be detrimentally affected by the use or development, through the :
- (a) transport of materials, goods or commodities to or from the land;
- (b) appearance of any building, works or materials;
- (c) emission of noise, artificial light, vibration, smell, fumes, smoke, vapour, steam, soot, ash, dust, waste water, waste products, grit or oil;
No goods must be stored or left exposed outside the building so as to be visible from any public road or thoroughfare.
No bin or receptacle or any form of rubbish or refuse shall be allowed to remain in view of the public and no odour shall be emitted from any receptacle so as to cause offence to persons outside the land.
Adequate provision shall be made for the storage and collection of garbage and other solid wastes and these facilities are to be located on the site to the satisfaction of the Responsible Authority.
The walls on the boundary of adjoining properties shall be cleaned and finished in a manner to the satisfaction of the Responsible Authority.
Before the development starts, a site layout plan drawn to scale and dimensioned must be approved by the Responsible Authority.

The plans must show a drainage scheme providing for the conveying of the stormwater to the nominated point of discharge. The nominated point of discharge is the south-west corner of the property where all on-site stormwater must be collected and free drained via a pipe to be constructed along the southern boundary easement of 200-202 Waverley Road and 900mm by 600mm junction pit to be constructed to Council standards.

All on-site stormwater is to be collected from hard surface areas and must not be allowed to flow uncontrolled into adjoining properties. The on-site drainage system must prevent discharge from driveways onto the footpath. Such a system may include either:-
- (a) trench grates (175mm minimum width) located within the property; and/or
- (b) shaping the driveway so that water is collected in a grated pit on the property; and/or
- (c) another Council approved equivalent.
Driveways are to be designed and constructed using appropriate engineering standards.
A landscape plan prepared by a Landscape Architect or a suitably qualified or experienced landscape designer, drawn to scale and dimensioned must be submitted to and approved by the Responsible Authority prior to the commencement of any works. The plan must show the proposed landscape treatment of the site including:-
- (a) the location of all existing trees and other vegetation to be retained on site
- (b) provision of canopy trees with spreading crowns located throughout the site including the major open space areas of the development
- (c) planting to soften the appearance of hard surface areas such as driveways and other paved areas
- (d) a schedule of all proposed trees, shrubs and ground cover, which will include the size of all plants (at planting and at maturity), their location, botanical names and the location of all areas to be covered by grass, lawn, mulch or other surface material
- (e) the location and details of all fencing
- (f) the extent of any cut, fill, embankments or retaining walls associated with the landscape treatment of the site
- (g) details of all proposed hard surface materials including pathways, patio or decked areas

When approved the plan will be endorsed and will then form part of the permit.

Before the occupation of the buildings allowed by this permit, landscaping works as shown on the endorsed plans must be completed to the satisfaction of the Responsible Authority and then maintained to the satisfaction of the Responsible Authority.
All existing vegetation shown on the endorsed plans must be suitably marked before any development starts on the site and that vegetation must not be removed, destroyed or lopped without the written consent of the Responsible Authority.
Prior to the commencement of any works that are permitted by this permit, all trees that are to be retained, or are located within or adjacent to any works area, shall be marked and provided with a protective barricade and verified by an authorised officer of the Responsible Authority.
All work within the dripline of any tree to be retained shall be supervised by a qualified landscape architect or horticulturist who shall ensure that the works are done in a manner which protects and minimises any damage to those trees.
No building material, demolition material or earthworks shall be stored or stockpiled under the canopy line of any tree to be retained during the construction period of the development hereby permitted.
No vehicle shall park under the canopy line of any tree to be retained.
Before the use begins and the buildings are occupied, an acoustic fence must be erected along the entire southern boundary of the site and along the eastern Olive Avenue frontage for a distance of 15 metres from where it intersects with the southern boundary of the site. Both fences are to be a minimum height of 2 metres above natural ground level. The fence along the Olive Avenue frontage is to be set in 1 metre from the footpath to allow for landscaping between the fence and the footpath. The design of the fence must be prepared by a suitably qualified acoustic engineer and the details of the design and acoustic qualities of the fence must be to the satisfaction of the Responsible Authority.
All external plant and equipment must be acoustically treated or placed in sound proof housing to reduce noise to a level satisfactory to the Responsible Authority.
Except in the case of emergency situations, no external sound amplification equipment or loud speakers are to be used for the purpose of announcement, broadcast, playing of music (whether recorded or otherwise) or similar purpose.
The car wash must only operate during the following times:
- Monday to Sunday 7.00am to 10.00pm
This permit will expire if one of the following circumstances applies:
- (a) The development and use is/are not started within two years of the date of this permit.
- (b) The development is not completed within four years of the date of this permit.

The Responsible Authority may extend the periods referred to if a request is made in writing before the permit expires, or within three months afterwards.

[1] A permit is required for use of the land for a service station and for a carwash. Buildings and works and car parking also require a permit.

[2] Other relevant Planning Scheme provisions include Clauses 11, 12, 14, 15.12, 16.02, 21.02, 52.12, 52.13 and 65.

[3] Corio Bay Car Wash v Greater Geelong CC [2007] VCAT 1457 (9 August 2007)

Environment Act 1987

Bernardo v Monash CC [2008] VCAT 406

At a glance

Court

Decision date

Source

Judgment (25 paragraphs)

Bernardo v Monash CC [2008] VCAT 406 (14 March 2008)

Parties

Legislation Cited (1)