appellant. The Tribunal set aside the decision of the Responsible Authority and granted a permit to use Unit 15/11 Bryants Road for a place of worship with a waiver of the Clause 52.06 car parking...
Key principles
A Section 2 (permit required) use in an Industrial 1 Zone is discretionary and the mere fact that a use is not industrial or not expressly in the zone purpose does not make it...
Where car parking is located on common property and peak demands for the proposed use occur at times different to surrounding industrial uses, a waiver or reduction of Clause...
Planning decision‑making requires balancing state and local planning policies, including social needs and industrial objectives, and where evidence shows minimal adverse impact...
Issues before the court
Whether a planning permit should be refused because the proposed Place of Worship is not an industrial use and thus conflicts with the Industrial 1...
Whether the proposal provided adequate car parking under Clause 52.06 and whether a waiver or reduction should be granted.
Whether the proposed use would cause land use conflict or otherwise detrimentally affect the proper functioning and orderly planning of the...
Plain English Summary
VCAT allowed a church's application to use an industrial unit as a place of worship, overturning council refusal. The Tribunal held that being a non-industrial use did not automatically make the proposal inappropriate where the planning scheme allowed the use as a discretionary Section 2 use, evidence did not show harm to industrial land supply, and shared common-property parking could meet demand. The permit was granted with conditions limiting hours, patron numbers, and protecting amenity.
AI-generated legal information, not legal advice. Zoe can make mistakes. Check the cited source, and for advice about your situation consult a qualified Australian lawyer.
Deep Dive
1,629 words · generated 28/07/2026
What happened
Bethel New Life Christian Fellowship Inc applied for a planning permit to use Unit 15 at 11 Bryants Road, Dandenong South, as a place of worship. The land is part of a staged subdivision of an industrial parcel into 39 warehouse/industrial units with common-property car parking (229 spaces on completion, 179 spaces at the time of hearing). Council refused the permit on five grounds: principally that a place of worship is not an industrial use and would prejudice the availability of industrial land and the municipality’s industrial base; that the use would constitute an unplanned encroachment of a sensitive use into an industrial estate and risk land-use conflict; and that the proposal failed to provide adequate car parking under Clause 52.06 and would create traffic problems.
Cited legislation
No linked legislation citations have been extracted yet.
The applicant sought review at VCAT under s77 of the Planning and Environment Act 1987. The Tribunal hearing received expert evidence from a traffic consultant (written report from Ms Dunstan, Traffix Group) and planning evidence from Mr Fletcher (Contour Consultants). No objections were lodged to the application and Pastor Britto had obtained signed consents from many of the occupied shells. The Tribunal (Senior Member G.J. Sharkey) set aside the Council’s refusal and directed that a permit be granted subject to a waiver of the Clause 52.06 car parking requirement and multiple conditions including limits on hours of operation, a maximum of 75 persons on site at any one time, noise controls consistent with SEPP N-2, and other amenity protections.
Why the court decided this way
The decision turns on three interrelated lines of reasoning.
Discretionary status of the use and exercise of planning discretion:
The Tribunal emphasised that a use listed in Section 2 of a zone (a permit required use) is discretionary; Section 2 does not equate to prohibition. The Tribunal expressly rejected the argument that a permit should be refused simply because the proposed use is not within the industrial purpose of the zone (see quoted reasoning in the judgment). It relied on and adopted reasoning from earlier VCAT authorities that Section 2 uses must be assessed on their merits rather than treated as de facto prohibited uses. This is central: the planning scheme places Places of Assembly in Section 2 for the Industrial 1 Zone, so a permit application is to be judged within that discretionary framework.
Evidence on supply of industrial land, reversibility and lack of material prejudice:
The Tribunal examined factual indicators of industrial land supply and the practical situation of the site: the subdivision permission into 39 tenancies, the fact 28 units were constructed and some remained vacant, and expert evidence that the building could readily be converted back to industrial use. The Tribunal found the Council’s contention that the use would materially prejudice industrial supply unsupported by the evidence. It also noted the Responsible Authority had previously granted a permit for Building 7 as a place of assembly on the same development, which undercut a categorical refusal thesis.
Parking and traffic impacts assessed on real demand and shared use logic:
Clause 52.06 car parking rates were addressed using evidence. Ms Dunstan’s inspections and analysis showed negligible Sunday parking demand (the Church’s peak time) and that peak parking demands differed between industrial occupiers (weekday) and the proposed place of worship (Sunday mornings). Using the Advisory Committee recommendation to assess places of assembly by persons rather than floor area (0.3 spaces per seat), the Tribunal accepted a requirement equivalent to 23 car spaces and concluded that shared common-property parking abutting the unit would adequately accommodate demand. Consequently the parking ground did not justify refusal; the Tribunal was willing to waive/reduce the nominal requirement and to manage residual impacts through conditions limiting patrons, hours and amenity protections.
Taken together, these reasons led the Tribunal to conclude that the environmental and planning risks alleged by Council did not materialise on the evidence, so a permit should be granted with conditions to manage impacts.
Before and after state of the law
Before: The tension in planning practice rested in municipalities over retention of industrial land versus accommodating non-industrial community uses in industrial zones. Councils often rely on zone purpose and local policy to resist non-industrial encroachments, particularly where industrial land supply is perceived as scarce or valuable. Clause 52.06 parking rules frequently produce conflict where parking is shared or located on common property.
After (as to legal posture from this decision): VCAT confirmed the following principles in this context:
A Section 2 use is discretionary not prohibited; a decision-maker must evaluate whether granting a permit is appropriate in the circumstances, not automatically refuse because a use is non-industrial.
Evidence of real, demonstrable prejudice to industrial land supply is necessary to sustain a refusal on policy grounds; general or speculative assertions will not suffice.
Parking refusals under Clause 52.06 can be avoided where credible technical evidence shows shared parking efficiencies and differing peak demands; waivers/reductions are appropriate where conditions and evidence support them.
This decision therefore reinforces the established approach that planning discretion requires fact-sensitive balancing rather than formalistic exclusion based on zone purpose alone.
Key passages with plain-English translation
Tribunal: "I am unable to accept that a permit should not be granted simply because it is not in accordance with the purpose of the zone..." (plain English: just because the use is not industrial does not automatically make it wrong; the Tribunal must weigh the planning rules and the evidence).
Tribunal on parking: "I conclude based on the report of Ms Dunstan that Clause 52.06 would provide for a requirement of 23 car spaces... The peak demand for the Church use will occur on Sundays... This would represent an appropriate sharing of car spaces." (plain English: the technical parking evidence shows church services peak at times when most industrial occupiers are not operating, so available shared parking is sufficient; strict application of floor-area-based parking would overstate the need).
Final order: "I have come to the conclusion... that a permit subject to conditions should be granted." (plain English: after balancing policy and evidence, the Tribunal directed that the permit be granted, but with conditions to manage impacts).
What fact patterns trigger this precedent
This decision will be most relevant where these elements are present:
The proposed non-industrial use is a Section 2 use in an Industrial 1 Zone (permit required, discretionary).
The development is part of an established industrial subdivision with common-property car parking rather than individually titled dedicated car bays.
Peak demand for the proposed use occurs at times different from peak industrial activity (for example, religious services typically on Sundays).
Technical traffic/parking analysis demonstrates that shared parking and temporal separation adequately mitigate parking and traffic impacts.
There is no cogent evidence that the proposal will materially diminish the availability of industrial land at the municipal or regional scale, and where the building could be returned to industrial use in future.
The scale of the proposed use is small relative to the estate (limited patron numbers) and there are no or few objectors.
If those facts align, this decision supports granting a permit subject to conditions rather than refusal.
How later courts have treated it
The judgment itself cites earlier VCAT authorities (Stephen D'Andrea [2006] VCAT 1072, South Eastern Assembly of God [2007] VCAT 1026, Cooke v Greater Geelong [2006] VCAT 2198) to situate its reasoning on Section 2 uses and parking assessment. This decision applies those precedents to its facts.
This deep dive does not invent or assert subsequent appellate treatment. Users should check citators (e.g. AustLII, Jade) for later citations or for whether higher courts have considered this decision. At the time of the decision the Tribunal drew on and followed established Tribunal practice rather than establishing a novel legal rule, its practical value is fact-driven rather than doctrinally transformative.
Still-open questions
Scale and cumulative effect: The decision is fact-specific. If multiple units in the same estate sought conversion to sensitive community uses over time, would the cumulative effect on industrial land supply be enough to support refusal? The Tribunal did not address a cumulative-change scenario in this matter.
Control of common-property parking: The Tribunal rejected conditions requiring the operator to enforce or guarantee use of common-property parking because the operator did not control those spaces. The decision leaves open what conditions are appropriately enforceable where parking is common property but no formal allocation exists between users.
Reversibility versus long-term planning signals: The Tribunal accepted evidence that the building could be converted back to industrial use as a factor reducing concern about loss of industrial land. The weight to be given to such reversibility evidence in other contexts remains a question, particularly where physical conversion costs or ownership patterns differ.
Interaction with MSS strategic objectives: Where Municipal Strategic Statements contain a stronger, explicit strategic program to retain industrial land for long-term economic reasons, how will tribunals weigh that higher-level strategic policy against local fact evidence that a specific unit can be spared? This decision suggests factual rebuttal can prevail, but boundaries are not precisely drawn.
Precedential force beyond VCAT: As a Tribunal decision, its persuasive authority outside VCAT or before higher courts is limited. How planning authorities and courts at higher levels treat the balancing approach in materially different municipal contexts remains a matter for future decisions.
Practitioners should therefore treat Bethel New Life Christian Fellowship v Greater Dandenong CC as a robust example of fact-driven exercise of discretion in favour of a small-scale community use in an industrial estate where parking and industrial-supply impacts were shown to be minimal or manageable; but careful factual and strategic analysis remains essential when applying the decision to other settings.
Judgment (34 paragraphs)
[1]
Bethel New Life Christian Fellowship Inc v Greater Dandenong CC [2009] VCAT 1778 (27 August 2009)
[2]
Bethel New Life Christian Fellowship Inc v Greater Dandenong CC [2009] VCAT 1778
[3]
The name of the permit applicant is Bethel New Life Christian Fellowship Inc.
The decision of the Responsible Authority is set aside, and a permit is granted to use Unit 15/11 Bryants Road, Dandenong South, for a place of worship with a waiver of the car parking required, in accordance with the plans to be endorsed as part of the permit and subject to the following conditions:
The use as shown on the endorsed plans must not be altered without the written consent of the Responsible Authority.
Unless with the further written consent of the Responsible Authority, the use may operate only between the hours of:
[4]
Unless with the further written consent of the Responsible Authority, the maximum number of persons on the site at any given time must not exceed 75 persons.
The operator under this permit must make all reasonable attempts to ensure that no vehicle under the control of the operator or staff of the operator is parked in nearby streets, to the satisfaction of the Responsible Authority.
Goods, materials, equipment and the like associated with the use of the land must not be displayed or stored outside of the building, without the further written consent of the Responsible Authority.
The amenity in the area, to the satisfaction of the Responsible Authority, must not be detrimentally affected by the use of the land through the:
(a) Transport of materials, goods or commodities to and from the land;
Bins or other receptacles for any form of rubbish or refuse must not be placed or allowed to remain in view of the public and smell must not be emitted from any such receptacle, all to the satisfaction of the Responsible Authority.
An external public address system must not be installed or otherwise operated on the site, unless with the further written consent of the Responsible Authority.
The site must be kept in a neat and tidy condition at all times, to the satisfaction of the Responsible Authority.
Noise emitted from the premises must not exceed the permissible noise levels determined in accordance with the State Environment Protection Policy (Control of Music Noise from Public Premises) No. N-2 (SEPPN-2), to the satisfaction of the Responsible Authority.
This permit will expire if:
(a) The use does not start within two (2) years of the date of this permit;
(b) The use is discontinued for a period of two (2) years.
[5]
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.
Ms J Lardner, of Counsel, instructed by J N Martin & Partners, Lawyers.
[8]
Ms Lardner called Mr A Fletcher, a Consultant Planner of Contour Consultants Australia Pty Ltd, as an expert witness.
[9]
A report was provided by Ms C Dunstan, a Consultant Traffic Engineer of Traffix Group Pty Ltd, but Ms Dunstan was not called to give evidence or be cross examined.
[10]
This is an Application under Section 77 of the Planning and Environment Act1987 ("the Act") brought by the Permit Applicant for review of a decision of the Greater Dandenong City Council ("the Responsible Authority") to refuse to grant a permit.
[11]
The development at 11 Bryants Road is on the east side of Bryants Road south of the intersection of Webster Street. It is a triangular parcel with a frontage to Bryants Road of 268.74 metres, a south boundary of 195m2 and an area of 27370m2. It abuts the railway on its east boundary. A permit for 39 warehouse/factory units, native vegetation removal and reduction in the provision of car parking was granted at the direction of the Tribunal following Stephen D'Andrea Pty Ltd v Greater Dandenong CC[2006] VCAT 1072 (8 June 2006).
The development includes onsite parking for 229 cars, all of which are located on common property and not allocated to specific tenancies on title. The development is taking place in stages, and I was told that 28 of the proposed 39 units have been completed to date, with the southernmost stage yet to be developed. The completed development comprises 28 units and 179 car spaces. The balance of the development yet to be constructed includes 11 units and 50 car spaces. A number of tenancies have been occupied and are being fitted out.
Permit No PLN08/0181 has been granted for use of Building 7 for a place of assembly for the Sudanese Community Association of Australia. There were six objections but the proposal was not the subject of an application for review to the Tribunal. The permit was granted following an Officer recommendation to grant a permit and the permit was dated 8 October 2008.
I was told that the Bethel New Life Christian Fellowship Inc has used the Dandenong High School hall for the past nine years. The hall is schedules for demolition and it has been necessary for the Church to seek alternative premises. I was told that the Church has entered into a contract to purchase the review site conditional on the grant a permit and the substantial amount of the purchase price will be raised by the grant of a mortgage over the property which the members of the congregation will repay. Ms Lardner submitted that as far as the Church is aware there has never been a complaint concerning the use of the High School hall by the Church.
[12]
It is proposed to use Building 15 for a place of worship. External buildings and works are not proposed. There would be a maximum of 75 people on site at any time with the main use being weekly Sunday services. It is proposed that the premises be used also for administration and pastoral work, a small teaching session and a small singing group. There would be an occasional wedding and an occasional funeral service.
It is intended to use the existing car parking located within the common property on the site. It is noted that 24 car spaces, including one disabled car space, abut the boundaries of the site.
The report by Ms C Dunstan, a Consultant Traffic Engineer of Traffix Group Pty Ltd, set out a breakdown of activities as follows:
[13]
The subject land is covered by the Greater Dandenong Planning Scheme and is in an Industrial 1 Zone which is the subject of Clause 33.01. A permit is required to use land for the purpose of a Place of Assembly. A Place of Worship falls within the nesting group of a Place of Assembly in Clause 74, and is a Section 2 - Permit required use in the Industrial 1 Zone. The subject land is not covered by any overlays.
Clause 52.06, Car parking, applies to the proposal. The table at Clause 52.06-5 sets out car parking rates for various uses. A permit may be granted to reduce or waive the number of car spaces set out in the table. The table provides that for a Place of Assembly 0.3 car spaces be provided for each seat or for each square metre of net floor area, whichever is the greater. The car parking requirement based on seating would be 23 car spaces and based on net floor area would be 114 car spaces. Ms Dunstan said in her report that consistent with current practice an assessment based on the number of persons would be more relevant. She said that this approach would be consistent with the Report of the Advisory Committee reviewing Clause 52.06, August 2007, which recommended a Place of Assembly rate of 0.3 car spaces per seat with no reference to floor area.
Reference was made to planning policy, including:
Clause 11 Introduction, goal and principles
Clause 11.03-6 Social needs,
Clause 17.03 Industry,
Clause 21.03 A Vision for Greater Dandenong,
Clause 21.04 Objectives, Strategies, Implementation, and
Clause 21.04-2 Industrial.
[14]
The Grounds of Refusal were:
The use is inconsistent with the objective of Clause 17.03 of the Greater Dandenong Planning Scheme, in that it prejudices the availability of land for industry and does not facilitate the sustainable development and operation of industry.
The use is inconsistent with the objectives of Clause 21.04-2 of the Greater Dandenong Planning Scheme, in that it undermines the existing supply of industrial land in the municipality and does not protect greater Dandenong's strong industrial base, which is extremely important to the prosperity of the municipality.
The use is inconsistent with the implementation strategies under Clause 33.01 of the Greater Dandenong Planning Scheme, that is:
3.1 It constitutes an unplanned encroachment of a sensitive land use into an existing industrial estate that has potential to adversely affect industrial viability; and
3.2 It prejudices the availability of future industrial requirements in this industrial zone.
The use would significantly undermine the proper functioning of the industrial estate due to potential land use conflicts, and detrimentally impact on the orderly planning of the area.
The use fails to provide appropriate and adequate car parking on the site in accordance with Clause 52.06 of the Greater Dandenong Planning Scheme and is likely to create traffic and car parking difficulties within the industrial estate.
[15]
The Grounds of Application for Review were:
The use satisfies the objectives of Clause 17.03 of the Greater Dandenong Planning Scheme.
The use satisfies the objectives of Clause 21.04-2 of the Greater Dandenong Planning Scheme.
The use is consistent with the implementation strategies under Clause 33.01 of the Greater Dandenong Planning Scheme.
The use is appropriate for the proper functioning of the industrial estate; does not create potential land use conflicts; and constitutes orderly planning of the area.
The use provides appropriate and adequate car parking on the site in accordance with Clause 52.06 of the Greater Dandenong Planning Scheme.
[16]
The permit application was lodged with the Responsible Authority on 24 July 2008. Notice was provided by two notices on site and by post to surrounding owners and occupiers. There were no objections. Ms Lardner said that Pastor John Britto, of the Church, door knocked all of the estimated occupied premises in the development. Pastor Britto received 14 letters of consent to the proposal which was 77 percent of the estimated 18 occupied shells. Ms Lardner said that two did not wish to be involved and there were two non-responses.
The letter from Pastor Britto to the owner/occupier of each of those shells read:
[17]
I advise that Bethel New Life Christian Fellowship (AOG Tamil Church) is the Applicant in an application made to VCAT for a Planning Permit for use of the property at 15/11 Bryants Road, Dandenong 3175 as a place of assembly for a church.
[18]
I wish to further clarify the church's intended weekly activities at the building and the associated use of car parking spaces:
[19]
It is expected Wedding ceremonies on a Saturday afternoon and funeral services during Monday to Friday would be conducted on an occasional basis only.
[20]
If you are agreeable to give your consent to the intended weekly activities and associated use of car parking spaces as shown above I would respectfully request you sign and complete the Consent at the foot of this letter
[21]
There was space at the foot of the letter for respondents to indicate consent. Ms Lardner tendered the completed consent forms. She noted that the application did not make reference to use between 9am and 5pm Tuesday to Friday for administration and pastoral work and made no specific reference to weddings and funerals.
There were no objections. The Officer report recommended that a permit not be granted on the grounds set out above, and a Notice of Refusal dated 6 January 2009 was issued on those grounds.
The permit for the development of 11 Bryants Road was granted at the direction of the Tribunal following the decision of Member Naylor in Stephens D'Andrea Pty Ltd v Greater Dandenong CC[2006] VCAT 1072 (8 June 2006). Ms Naylor set aside the decision of the Responsible Authority to refuse to grant a permit and directed that a permit be granted. Ms Naylor said in her reasons:
The Council argued this site should be retained as one large land holding rather than allowing the development of 38 speculative industrial/warehouse buildings, as this will create difficulty in redeveloping the land for residential/mixed uses as sought in the Industrial section of the MSS. I disagree with this argument. Firstly, I acknowledge the last objective of the Industrial section does state:
[22]
To encourage the redevelopment of smaller pockets of industrial land located within residential areas for innovative residential or mixed-use development, taking into account local environmental and residential issues.
[23]
The Responsible Authority issued a permit for the use of Building 7 in the development for a place of assembly for the Sudanese Community Association of Australia. The permit was dated 8 October 2008, which was while this application was before the Council. The Officer report recommended that a permit be granted, and noted that there was six objections.
The Officer report said with respect to the effect that nearby industries may have on the proposed use of Building 7:
[24]
It is not considered that nearby industries within the estate are likely to impact adversely on the proposed use. The use of the industrial estate is constrained by the existing adjacent Residential 1 Zone, which will ensure that future uses are compatible with the proposed Place of Assembly. In addition, the proposal will not adversely impact on the operation of existing or future industries in the area as it occupies a small part of the industrial estate. The maximum number of patrons will be limited to 30 persons by way of permit condition, thus limiting the impact that the place of assembly land use may have on the existing or future industries within the estate.
[25]
The first ground of refusal that the use would be inconsistent with the objective of the Industrial 1 Zone and would prejudice the availability of land for industry and not facilitate the sustainable development and operation of industry.
The purpose of the Industrial 1 Zone is:
[26]
To implement the State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies.
[27]
To provide for manufacturing industry, the storage and distribution of goods and associated uses in a manner which does not affect the safety and amenity of local communities.
[28]
To ensure availability of land for industry and to facilitate the sustainable development and operation of industry and research and development activity.
[29]
Place of Worship is a Section 2 use in the Industrial 1 Zone and is therefore a discretionary use. Member Cimino said in South Eastern Assembly of God Inc v Greater Dandenong CC[2007] VCAT 1026 (6 June 2007):
While it is clear that the proposed use is not of an industrial nature, it does not follow that it should therefore be regarded as being inappropriate because it is not mentioned in the zone purpose. The use is discretionary within the zone. It is not prohibited. While I agree that the provisions of clause 31.01 say that it should not be assumed that a permit will be granted because discretion to do so exists, as noted by the tribunal in Cooke v Greater Geelong CC', section 2 uses should not be treated as prohibited whether or not they are specifically mentioned in policy statements.
In Cookev Greater Geelong CC[2006] VCAT 2198 (1 November 2006) Senior Member Byard and Member Hadjigeorgiou said:
This is made clear enough by the terms of the planning scheme itself. The table of uses in relation to the rural zone is found in cl.35.05 of the planning scheme. This table allows quite a number of uses of land to be carried on without the need to obtain a planning permit. Many other uses, including accommodation, which in turn, includes camping and caravan park, appear in section 2 of the table. Those uses are allowable provided that a planning permit is obtained, and provided that any applicable condition is met. In this zone quite a number of uses are permissible, subject to the obtaining of a permit. There are three prohibited uses namely brothel, cinema based entertainment facility and shop (other than convenience shop and equestrian supplies). Prohibited uses appear in of the table of uses. If camping and caravan park was intended to be prohibited in the rural zone, it would appear in that list of prohibitions. It does not. The need to retain land for farming purposes, although important, should not be applied so strictly as to amount to a de facto prohibition on a use where the planning scheme does not impose such a prohibition by placing the use in of the table.
[30]
27.1 planning permit PLNO7/0030.O1 allows the subdivision of 11 Bryants Road into 39 lots in 5 stages with common property;
[31]
27.2 three of the five stages have been completed with construction of the fourth stage being delayed until more sales of those already constructed are achieved; and
[32]
27.3 of the 27 shells constructed to date, 9 (33%) are currently vacant.
[33]
It is submitted that the establishment of the use at the review site will not adversely affect the surrounding industrial land use as is contended by Council.
The Council opposed the subdivision of 11 Bryants Road into 39 industrial/warehouse buildings. In considering whether or not to grant a permit for the Sudanese Community Association of Australia Inc for use of Building 7, it did not consider that nearby industries would impact adversely on that use, and that the nearby Residential 1 zone to the east would ensure that future uses would be compatible with the proposed Place of Assembly. It was also the Council view that the proposal would not impact adversely on the operation of existing or future industries in the area.
I am unable to accept that a permit should not be granted simply because it is not in accordance with the purpose of the zone or that it would conflict with the objective of Clause 17.03. The Council did not seem to consider that these were issues in deciding whether or not to grant a permit for the use of Building 7 as a Place of Assembly for the Sudanese Community of Australia. I also note and accept the evidence of Mr Fletcher, in the last dot point of paragraph 40 of his report, that the building could be easily converted back to a warehouse/factory at a future date.
I consider for these reasons that ground number 1 is not made out.
Ground number 2 was that the use is inconsistent with the objectives of Clause 21.04-2 in that it would undermine the existing supply of industrial land in the municipality and not protect the strong industrial base of Greater Dandenong, "which is extremely important for prosperity of a municipality".
The objectives of Clause 21.04-2 are:
To provide certainty and direction for ongoing private sector investment in the provision of a wide variety of industries which individually and collectively contribute to the economic and environmental sustainability of the municipality, region and state.
To provide a wide range of employment opportunities in the industrial sector of the municipal economy.
To increase the rate of industrial growth.
To improve community perception of the industrial image of Greater Dandenong.
I do not think that it can be argued, particularly having regard to what I have said above, that this proposal would undermine the existing supply of industrial land in the municipality. I do not consider that it is inconsistent with any of the objectives of Clause 21.04-2 as quoted above. I acknowledge that the use of Building 7 was for only 30 people but the hours were Monday to Friday 8.30am to 8pm and Saturday and Sunday 11am to 8pm.
[34]
I have come to the conclusion for the reasons discussed above that a permit subject to conditions should be granted. I will so order.
Parties
Applicant/Plaintiff:
Bethel New Life Christian Fellowship Inc
Respondent/Defendant:
Greater Dandenong CC [2009] VCAT 1778
AI Analysis
Outcomeappellant
Disposition:
The Tribunal set aside the decision of the Responsible Authority and granted a permit to use Unit 15/11 Bryants Road for a place of worship with a waiver of the Clause 52.06 car parking requirement, subject to specified conditions (hours, patron limit of 75, noise controls consistent with SEPP N-2, prohibition on external PA system without consent, and other amenity protections).
To the extent that Council's concerns emanate from a view that the proposal will undermine the existing supply of industrial land within the municipality, it is submitted that this view is unfounded. The data referred to by Mr Fletcher in his evidence establish that permitting the review site to be used for a non industrial purpose will not have an appreciable impact on the supply of either existing or future land available to be developed for industrial uses within the municipality much less the south east region generally.
On a micro level, this date is borne out by the following:
The third ground of refusal was that the proposal was inconsistent with the implementation strategies of the Industrial 1 zone, Clause 33.01, in that it would be an unplanned encroachment of a sensitive land use into an existing industrial estate that would have the potential to burst the affect of industrial viability, and would prejudice the availability of future industrial requirements in this Residential zone.
I have already dealt with these issues.
The fourth ground of refusal was that it would significantly undermine the proper functioning of the industrial estate due to potential land use conflicts, and would detrimentally impact on the orderly planning of the area.
I also consider that I have dealt with these issues. Clause 11.01 provides that it is the State Government expectation that planning and Responsible Authorities will integrate the range of policies relevant to issues and balance conflicting objectives in favour of net community benefit and sustainable development. It also provides that the State Planning Policy Framework is dynamic and will be built upon as the Government develops and refines policy, and change as the needs of the community change. Clause 11.03-6 provides that planning is to recognise social needs by providing land for a range of accessible community resources including cultural facilities, and that land use and development planning must support the development and maintenance of communities with adequate safe and physical and social environments for their residents through the appropriate location of uses and developments and quality of urban design. I consider that the proposal is supported in all of these respects, and in particular it would help meet a social need in this community.
The fifth ground of refusal was that the use fails to provide adequate and appropriate car parking in accordance with Clause 52.06 and was likely to create traffic and car parking difficulties within this industrial estate.
Ms Dunstan said in her written report said that site inspections were undertaken to observe onsite parking demands between 10am and 11am on Sunday 31 May 2009 and between noon and 1pm on Thursday 4 June 2009. One car was observed parked on site on the Sunday and 22 cars parked on site on the Thursday. Ms Dunstan acknowledged that the units were not fully occupied and that parking demands would increase over time but she said that the difference in demand was an indication of activity that can be expected on those days, with negligible demand for parking on Sunday mornings. I think that this is a reasonable statement.
I see no reason why the times should be less than those that the Council was prepared to approve for the use at Building 7. The times in draft Condition 2 however provided for use to 9pm on Wednesday and Saturday. I do not consider that the potential for an additional hour at the end of a day would be unacceptable.
I conclude based on the report of Ms Dunstan that Clause 52.06 would provide for a requirement of 23 car spaces, particularly having regard to what she said about the recommendations contained in the Advisory Committee Report on Clause 52.06. I note that whilst all the car spaces are on common property 24 car spaces including one disabled car space abut the site. The peak demand for the Church use will occur on Sundays for Church services and not during normal working hours. This would represent an appropriate sharing of car spaces.
There will be some funerals on weekdays but I accept that for this small congregation they will be quite infrequent, and so infrequent as to be acceptable. Weddings are likely to be on Saturday afternoons, also outside normal working hours, and again for this small congregation would be relatively infrequent. Parking for weddings would also represent an appropriate sharing of available parking supply.
Administration and pastoral work would be carried out during normal working hours and Ms Dunstan suggested that this would generate the parking requirement of three or four car spaces. This would not be inconsistent with any other use of the site. I consider that the proposed use would not generate unreasonable demand on available car spaces.
I set out the expected breakdown of activities at paragraph 8 above. The draft conditions tendered by the Responsible Authority suggested Wednesday between 7pm and 9pm for a teaching session, Saturday between 7pm and 9pm for a small singing group and Sunday between 9am and 11am for a Church service. Those times did not make any allowance for occasional funerals on weekdays or weddings on a Saturday afternoon. I acknowledge the oral submission of Ms Lardner that the permit application did not make reference to use between 9am and 5pm Tuesday to Friday for administration and pastoral work, and made no specific reference to weddings and funerals. The permit application did not make reference to times. A town planning report prepared for the permit applicant did make reference to times but this was dated August 2008, after the date of the permit application. Ms Lardner submitted, correctly with respect to draft Condition 2, that times are a matter for the Tribunal.
Because there are no car spaces specifically allotted to the site and they are all on common property, a permit to waive the car parking requirement would be necessary. I accept what Ms Lardner said that nothing turns on whether a permit is granted to reduce or waive the car parking requirement.
Ms Dunstan said that this use would benefit from efficiencies gained from sharing parking resources by the various uses due to a variation of car parking demand over time, and because of efficiencies gained by consolidation of the shared car parking spaces. I can only agree.
Ms Dunstan said with respect to traffic impacts that traffic generation resulting from this use would relate to arrival and departure of members attending Church services and other activities and the traffic generation would mainly relate to Sunday Church services. She said that traffic generation would not be a significant issue and could easily be accommodated within the existing road network and not cause any adverse impacts. I agree.
Conditions were addressed in the hearing and I have discussed some of the conditions above. Conditions 6 and 7 relate to availability of car spaces. Those car spaces are not controlled by the operator of these premises and I do not consider that they are appropriate. Condition 8 would require a minimum of two car parking attendants during the Sunday service and at other peak times. I do not consider that this condition is necessary or appropriate.
I have also carried out some minor redrafting of conditions.
